Hearsay and circumstances of its admissibility - Past recoll...

Learning Outcomes

This article explains the hearsay exception for past recollection recorded and its relationship to present recollection refreshed, including:

• identifying fact patterns in which a witness once knew the facts, a writing exists, and the witness now cannot recall well enough to testify.
• recognizing when a writing is being offered for its truth rather than merely to jog a witness’s present memory.
• stating, memorizing, and applying each element of Federal Rule of Evidence 803(5) to bar-style multiple-choice questions.
• distinguishing precisely between present recollection refreshed (Rule 612) and past recollection recorded, and selecting the correct doctrine on the MBE.
• determining when counsel must attempt to refresh recollection before introducing a recorded recollection and when that attempt is sufficient.
• evaluating whether a witness has shown that a record was made or adopted while the matter was fresh and accurately reflected prior knowledge.
• determining the proper mode of use at trial—reading the record versus admitting the writing as an exhibit—and who may introduce it.
• spotting and avoiding common exam traps that misapply recorded recollection, particularly answer choices that ignore missing elements or wrongly admit the writing itself.

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, with a focus on the following syllabus points:

• 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 (Rule 612).
• Identifying and applying the required elements for admitting a recorded recollection.
• Understanding the limitations on reading a recorded recollection to the jury and admitting the writing as an exhibit.
• Applying these principles to civil and criminal fact patterns, including those involving police reports and business records.

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.

1. 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.
2. 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.
3. 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 a core evidence topic on the MBE. Many questions follow a predictable pattern:

• A witness once knew facts.
• A writing exists that captures those facts.
• At trial, the witness cannot remember.

Your task is to decide whether the writing can be used only to refresh the witness’s memory, or whether it can be read into evidence as a past recollection recorded.

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

A "statement" includes oral or written assertions and certain nonverbal conduct intended as an assertion. A written record of an event is therefore hearsay if it is offered for its truth, unless an exclusion or exception applies.

The General Rule Against Hearsay

Hearsay is not admissible unless a specific exclusion (e.g., prior inconsistent statement given under oath) or exception (e.g., excited utterance, business records, recorded recollection) applies. The basic MBE sequence for any hearsay problem is:

• Identify an out-of-court statement.
• Ask whether it is being offered for its truth.
• If yes, treat it as hearsay and check whether an exception or exclusion applies.

The rationale behind the hearsay rule is reliability: the original declarant is not in court, under oath, subject to cross-examination, and observable by the factfinder.

The Exception: Past Recollection Recorded

The Federal Rules recognize a hearsay exception for past recollection recorded. This is codified in Federal Rule of Evidence 803(5).

Key Term: Past Recollection Recorded
A record or writing made or adopted by a witness when the matter was fresh in the witness’s memory, which accurately reflected the witness’s knowledge at that time, and which may be read into evidence when the witness now cannot recall the matter well enough to testify fully and accurately.

Key points about this exception:

• It is a hearsay exception that applies regardless of the declarant’s general “availability” under the hearsay rules.
• In practice, however, the witness who made or adopted the record must be on the stand to establish the necessary elements and be subject to cross-examination.
• The assumption is that a contemporaneous record, made when memory was fresh, is more reliable than testimony based on a faded memory years later.

Policy Rationale

The recorded recollection exception balances two competing concerns:

• Cross-examination is limited because the witness cannot recall the details independently.
• Reliability is enhanced because the record was made when the witness had a clear memory and before litigation strategy could influence the content.

On the MBE, this rationale explains why the rule tightly limits when the record can be used and how it may be presented to the jury.

Required Elements

To admit a past recollection recorded under FRE 803(5), the proponent must establish all of the following:

• The witness once had personal knowledge of the matter.
• The witness now has insufficient recollection to testify fully and accurately, even after an attempt to refresh.
• The record was made or adopted by the witness when the matter was fresh in the witness’s memory.
• The record accurately reflects the witness’s knowledge at that earlier time.

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

Let’s break down these required elements more carefully, as each can be tested:

1. Prior personal knowledge

The witness must have first-hand knowledge of the events recorded. The witness does not need to have written the record personally, but must have perceived the relevant facts.

• It is enough that the witness personally observed the facts and later adopted someone else’s written record of them (e.g., by signing, initialing, or otherwise acknowledging its accuracy).
• If the witness never personally perceived the matter, the writing cannot be a past recollection recorded (although it might be admissible under another exception, such as business records).

2. Present inability to recall fully and accurately

The witness must now be unable to recall the event well enough to testify fully and accurately from memory.

• This is more than minor forgetfulness. The witness must lack sufficient present recollection to give meaningful testimony about the relevant details.
• The witness need not testify to having no memory at all; it is enough that the witness cannot testify "fully and accurately." Some partial memory is permissible.

Crucially, the proponent must attempt present recollection refreshed first. Only when refreshing fails does the recorded recollection exception come into play.

3. Record made or adopted when memory was fresh

The record must have been made or adopted by the witness when the matter was fresh in memory.

• MBE fact patterns will usually specify that the writing was made "immediately," "soon after," or "the same day" as the event.
• The record can be written by another person, so long as the witness adopted it at that time (e.g., reviewed and agreed it was accurate, signed it, or otherwise endorsed it).
• If the writing was created long after the event, when memory was no longer fresh, it will not qualify.

4. Record accurately reflected prior knowledge

The witness must testify that the record accurately reflected the witness’s knowledge when it was made or adopted.

• The witness need not vouch that the record is accurate today in light of new information, only that it accurately reflected their knowledge at the time it was made.
• The required showing can be made by testimony such as: “I knew the facts then, I wrote [or adopted] this record then, and at that time I believed it to be accurate.”

If any one of these elements is missing, the recorded recollection exception does not apply, and the writing remains inadmissible hearsay (unless another exception covers it).

Key Term: Present Recollection Refreshed
A process (often under Rule 612) in which a witness uses a writing or other item to jog memory, then testifies from current recollection; the writing itself is not admitted for its truth.

Distinguishing Present Recollection Refreshed

The MBE frequently tests the distinction between present recollection refreshed and past recollection recorded.

• Present recollection refreshed (Rule 612):

  • The witness looks at a writing or anything else (notes, photographs, even a song) to jog memory.
  • After looking, the witness puts the item aside and testifies from present memory.
  • The writing is not evidence and is not read aloud to the jury by the proponent.
  • The adverse party has a right to inspect the item, use it on cross-examination, and introduce relevant portions into evidence (typically to impeach).

• Past recollection recorded (Rule 803(5)):

  • Used when the witness still cannot remember well enough to testify fully, even after an attempt to refresh.
  • The writing itself is hearsay, but the exception allows its contents to be read into evidence.
  • The witness testifies to the required elements (prior knowledge, freshness, adoption, accuracy) and then reads the record to the jury.
  • The writing is not received as an exhibit unless offered by the adverse party.

Exam-wise, a common trap is a fact pattern where the witness’s memory is successfully refreshed, yet the proponent still tries to read the writing to the jury. In that case, the proper doctrine is present recollection refreshed, and the writing is not read into evidence.

Limitations and Use at Trial

Several important limitations govern how recorded recollections can be used:

• Mode of presentation:

  • The record is read aloud to the jury; it is not automatically an exhibit.
  • Only the opposing party may have the writing itself admitted as an exhibit and sent to the jury room.

• Witness on the stand:

  • The witness who made or adopted the record must testify and be available for cross-examination to make the required showing.
  • This requirement serves as a partial substitute for full cross-examination about the contents.

• Availability under hearsay rules:

  • Recorded recollection is an exception where the declarant’s generic “availability” is immaterial; the rule itself does not require unavailability.
  • In practice, the witness must be present to testify to the necessary facts; otherwise a different hearsay exception would be needed.

• Sequence of use:

  • Lawyers should first attempt present recollection refreshed.
  • Only if that fails, and the required elements are met, may they proceed to recorded recollection.

• Interaction with other exceptions:

  • A writing might qualify both as a business record (FRE 803(6)) and as a recorded recollection. On the MBE, be prepared to recognize either path.
  • Police reports are often barred as public records against a criminal defendant, but the officer’s report may sometimes come in as a recorded recollection if the officer cannot remember and the required elements are satisfied.

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 observed the robber, wrote the notes when the details were fresh in her memory, and that the notes accurately reflected what she knew at that time. The notes themselves are not 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 testifies that she saw the accident, that she made or adopted the statement when the accident was fresh in her memory, and that it accurately reflected her knowledge at that time. The statement is not received as an exhibit unless the defense requests its admission.

Worked Example 1.3

A police officer investigated a burglary and wrote a detailed report the same night. At the defendant’s later trial for that burglary, the officer takes the stand but cannot remember key details, even after reviewing the report. The prosecutor offers the report as a public record to prove the facts described.

Answer:
The prosecution may not use the report as a public record against the criminal defendant, because police investigative reports are generally inadmissible against a defendant under the public-records exception. However, the officer may use the report as a past recollection recorded: if the officer testifies that he personally observed the facts, made the report when the matter was fresh, and believed it to be accurate at that time, he may read the relevant portions to the jury under FRE 803(5). The report itself is not an exhibit unless the defense chooses to offer it.

Worked Example 1.4

A store manager keeps a "waxing log" noting when floors are waxed. The manager personally makes the entries at the end of each shift. A year later, a customer sues for injuries from a slip-and-fall and calls the manager as a witness. The manager cannot recall when the floor was last waxed, and attempts at refreshing his recollection with the log fail. The plaintiff seeks to introduce the log.

Answer:
The log may qualify both as a business record and as a past recollection recorded. For recorded recollection, the manager must testify that he once knew when the floor was waxed, that he made the entries when the matter was fresh in his mind, and that they accurately reflected his knowledge. If that required showing is made, the relevant entry can be read into evidence, but the log itself is only an exhibit if the defendant offers it. Alternatively, if the business-records elements are satisfied, the log can be admitted as a business record, in which case the writing itself is received as an exhibit.

Worked Example 1.5

A witness to a shooting wrote a timeline of events that evening. At trial, the witness initially has trouble remembering. After reviewing the timeline, the witness’s memory is fully refreshed and the witness can clearly recount the events in detail. The plaintiff’s lawyer nevertheless asks the witness to read the timeline verbatim to the jury.

Answer:
This is improper under the recorded recollection exception. The witness’s memory has been refreshed, so the witness must now testify from present recollection. The writing was properly used for present recollection refreshed, but it cannot be read to the jury under the past recollection recorded exception because that exception applies only when the witness cannot recall well enough to testify fully and accurately after refreshing.

Exam Warning

On the MBE, do not confuse present recollection refreshed with past recollection recorded. If the witness’s memory can be refreshed and the witness is then able to testify, the writing is not read to the jury and is not admitted for its truth. Only when the witness still cannot recall well enough to testify fully and accurately, after a good‑faith attempt to refresh, does the recorded recollection exception apply. Also remember: only the adverse party can have the writing itself received as an exhibit.

Additional traps:

• Watch for answer choices that say the proponent may "have the document admitted as an exhibit" under recorded recollection. That is incorrect.
• Recorded recollection is often used as a decoy answer; ensure all required elements are present. If the problem is that there is no showing the record was made while the matter was fresh or that it accurately reflected the witness’s knowledge, the exception does not apply.

Revision Tip

Always check that all required elements for past recollection recorded are met: prior personal knowledge, insufficient present memory, record made or adopted when the matter was fresh, and accuracy. Confirm also that an attempt at present recollection refreshed has been made. If any element is missing, the exception does not apply, and the writing remains inadmissible hearsay unless another exception (such as business records or public records) covers it.

Key Point Checklist

This article has covered the following key knowledge points:

• Hearsay is generally inadmissible unless an exclusion or exception applies.
• Past recollection recorded (FRE 803(5)) is a hearsay exception allowing a writing to be read into evidence when the witness cannot recall the event but previously made or adopted a record when the matter was fresh.
• Required elements for recorded recollection:
  • The witness once had personal knowledge of the matter.
  • The witness now cannot recall well enough to testify fully and accurately, even after refreshing.
  • The record was made or adopted by the witness when the matter was fresh in memory.
  • The record accurately reflected the witness’s knowledge at that time.
• Under recorded recollection, the writing is read to the jury; it is not received as an exhibit unless offered by the adverse party.
• Present recollection refreshed involves using a writing or other item to jog the witness’s memory; the witness then testifies from present memory and the writing itself is not admitted by the proponent for its truth.
• Distinguish carefully between present recollection refreshed (Rule 612) and past recollection recorded (Rule 803(5)); many MBE questions turn on this distinction.
• The witness who made or adopted the recorded recollection must testify and be available for cross-examination to make the required showing.
• Police reports and business records may sometimes come in as recorded recollections if their authors cannot recall and the required elements are met, even when other hearsay exceptions are unavailable.

Key Terms and Concepts

• Hearsay
• Past Recollection Recorded
• Present Recollection Refreshed