PastPaperHero | Hearsay and circumstances of its admissibility

Learning Outcomes

After reading this article, you will be able to identify when a past recollection recorded is admissible as an exception to the hearsay rule, explain the foundational requirements for its use, distinguish it from present recollection refreshed, and apply these principles to MBE-style questions. You will also recognize common exam traps and understand how to analyze fact patterns involving recorded recollections.

MBE Syllabus

For the MBE, you are required to understand the rules governing hearsay and its exceptions, including the circumstances under which a past recollection recorded may be admitted. This article focuses on:

Defining hearsay and the general rule of inadmissibility.
Recognizing the exception for past recollection recorded under the Federal Rules of Evidence.
Distinguishing past recollection recorded from present recollection refreshed.
Identifying the foundational requirements for admitting a recorded recollection.
Understanding the limitations on the use of recorded recollections at trial.
Applying these principles to MBE-style scenarios.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

Which of the following is required before a past recollection recorded may be read into evidence?
1. The witness must have personal knowledge of the event.
2. The record must have been made or adopted when the matter was fresh in memory.
3. The witness must now have insufficient recollection to testify fully and accurately.
4. All of the above.
A witness cannot remember details of a car accident but recognizes her own contemporaneous written statement. The statement is offered by the plaintiff. Which is true?
1. The statement may be read to the jury and received as an exhibit.
2. The statement may be read to the jury, but only received as an exhibit if offered by the opposing party.
3. The statement is inadmissible hearsay.
4. The witness must refresh her memory and then testify from present recollection.
What is the key difference between present recollection refreshed and past recollection recorded?
1. Only present recollection refreshed requires a writing.
2. Only past recollection recorded allows the writing to be read into evidence.
3. Present recollection refreshed allows the writing to be introduced as an exhibit.
4. Past recollection recorded requires the witness to have no memory at all.

Introduction

Hearsay is generally inadmissible unless an exception applies. One important exception is the use of a past recollection recorded. This exception allows a writing to be read into evidence when a witness cannot recall the details of an event, but previously made or adopted a record of it while the matter was fresh in memory. Understanding when and how this exception applies is essential for MBE success.

Key Term: Hearsay An out-of-court statement offered to prove the truth of the matter asserted.

The General Rule Against Hearsay

Hearsay is not admissible unless a specific exception or exclusion applies. The rationale is that hearsay statements are not subject to cross-examination at the time they are made, raising concerns about reliability.

The Exception: Past Recollection Recorded

The Federal Rules of Evidence recognize an exception for past recollection recorded (FRE 803(5)). This allows a writing to be read into evidence if certain conditions are met.

Key Term: Past Recollection Recorded A record made or adopted by a witness when the matter was fresh in memory, read into evidence when the witness cannot recall the event fully at trial.

Foundational Requirements

To admit a past recollection recorded, the proponent must establish:

The witness once had personal knowledge of the matter.
The witness now cannot recall the matter well enough to testify fully and accurately, even after consulting the record.
The record was made or adopted by the witness when the matter was fresh in memory.
The record accurately reflects the witness’s knowledge.

If these requirements are met, the writing may be read into evidence, but is not itself received as an exhibit unless offered by the adverse party.

Key Term: Present Recollection Refreshed A process where a witness uses a writing or item to jog memory, then testifies from current recollection; the writing itself is not evidence.

Distinguishing Present Recollection Refreshed

Present recollection refreshed: The witness uses a writing to refresh memory, then testifies from present memory. The writing is not evidence.
Past recollection recorded: The witness cannot recall the event even after reviewing the writing. The writing is read into evidence as a substitute for testimony.

Limitations and Use at Trial

The writing or record is read aloud to the jury; it is not introduced as an exhibit unless the opposing party requests it.
The witness must be available for cross-examination.
The exception applies regardless of whether the declarant is available as a witness.

Worked Example 1.1

A witness to a robbery made detailed notes about the suspect’s appearance immediately after the event. At trial, the witness cannot recall the details, even after reviewing her notes. The prosecution seeks to read the notes to the jury.

Answer: The notes may be read into evidence as a past recollection recorded, provided the witness testifies that she made the notes when the details were fresh in her memory and that she believes them to be accurate. The notes themselves may not be received as an exhibit unless the defense offers them.

Worked Example 1.2

A witness to a car accident cannot remember the color of the car but recognizes her own written statement made to police the same day. The plaintiff offers the statement.

Answer: The statement may be read to the jury as a past recollection recorded if the witness confirms it was made when her memory was fresh and it accurately reflected her knowledge. The statement is not received as an exhibit unless the defense requests it.

Exam Warning

On the MBE, do not confuse present recollection refreshed with past recollection recorded. If the witness’s memory is refreshed and she can testify, the writing is not read to the jury. Only if the witness cannot recall after reviewing the writing does the past recollection recorded exception apply.

Revision Tip

Always check that all foundational elements for past recollection recorded are met: personal knowledge, insufficient present memory, timely record, and accuracy. If any are missing, the exception does not apply.

Key Point Checklist

This article has covered the following key knowledge points:

Hearsay is generally inadmissible unless an exception applies.
Past recollection recorded is an exception allowing a writing to be read into evidence if the witness cannot recall the event but made or adopted a record when the matter was fresh.
Foundational requirements: prior personal knowledge, insufficient present memory, record made/adopted when fresh, and accuracy.
The writing is read to the jury, not received as an exhibit unless offered by the adverse party.
Distinguish past recollection recorded from present recollection refreshed.
The witness must be available for cross-examination.

Key Terms and Concepts

Hearsay
Past Recollection Recorded
Present Recollection Refreshed

Hearsay and circumstances of its admissibility - Past recollection recorded