## Facts

- Glen Williams was prosecuted in federal court for conduct involving theft and negotiation of United States Treasury checks by cashing them with forged endorsements.
- Secret Service Agent Lutz interviewed Gary Ball, a friend of Williams, and prepared a written record of Ball’s statement.
- Ball reviewed the written statement soon after the interview and swore under oath that it was true, thereby adopting it.
- At trial, Ball testified that he could not remember the incriminating portions of his conversation with Agent Lutz.
- After Ball again claimed lack of memory even when shown the statement, the district court permitted the statement to be read to the jury as a recorded recollection under Federal Rule of Evidence 803(5).
- Williams was convicted and appealed, challenging the admission of Ball’s statement.

## Issues

1. Whether a witness’s inability to recall the material, incriminating parts of a prior conversation constitutes “insufficient recollection” permitting admission of a recorded recollection under Federal Rule of Evidence 803(5).
2. Whether a statement prepared by an agent but reviewed and sworn true by the witness satisfies Rule 803(5)’s “made or adopted” and accuracy requirements.
3. Whether reading such a statement to the jury improperly admits hearsay as substantive evidence.

## Decision

- The Sixth Circuit affirmed the conviction.
- The court held that Ball’s prior statement was properly admitted as a recorded recollection under Rule 803(5).
- The court found no abuse of discretion in the trial court’s determination that Ball’s present memory was insufficient and that the statement had been adopted as accurate when fresh.

## Legal Principles

- Under FRE 803(5), a recorded recollection is admissible if the witness once had knowledge, now lacks sufficient recollection to testify fully and accurately, and the record was made or adopted when fresh and accurately reflects the witness’s knowledge.
- “Insufficient recollection” does not require total memory loss; inability (or refusal) to recall the material substance needed for accurate testimony can satisfy the rule.
- A document prepared by another person may qualify if the witness reviewed it and adopted it as true when the events were fresh.
- When FRE 803(5) is satisfied, the recorded recollection may be read to the jury as substantive evidence, and the opposing party’s ability to cross-examine the witness mitigates hearsay concerns.
- Admission of recorded recollection is reviewed with deference to the trial judge’s assessment of the witness and the foundational requirements.

## Conclusion

The Sixth Circuit held that the district court properly allowed the government to read a witness’s earlier, sworn-adopted statement to the jury under FRE 803(5) after the witness testified that he could not remember the statement’s material incriminating details, and it affirmed Williams’s conviction.


United States v. Williams, 571 F.2d 344 (6th Cir. 1978)