§ 10.07 PAST RECOLLECTION RECORDED AND PRESENT RECOLLECTION REFRESHED OR REVIVED

• Jurisdiction: North Carolina

§ 10.07 PAST RECOLLECTION RECORDED AND PRESENT RECOLLECTION REFRESHED OR REVIVED

[1] PAST RECOLLECTION RECORDED

The next documentary hearsay exception is the past recollection recorded doctrine. Suppose that the witness on the stand cannot recall a particular fact or event. The witness's inability to recall supplies necessity for resorting to hearsay evidence. If at the time of the event, the witness had made a record of the fact or event, the record would be a reliable substitute for the witness's present recall. The recognition of this necessity and reliability led to the development of the past recollection recorded doctrine.

Federal Rule of Evidence 803(5) states the doctrine succinctly:

The following [is] not excluded by the rule against hearsay . . .: A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness's memory; and
(C) accurately reflects the witness's knowledge.

If the proponent can show that the exhibit satisfies the doctrine, the real evidence is the document. In many jurisdictions, since the real evidence is the document, the judge formally admits the document and permits it to be submitted to the jury. Other courts take a different position. They reason that the document is the functional equivalent of oral testimony and that it would place undue emphasis on that evidence to permit the jury to examine the document. This reasoning partially persuaded the drafters of the Federal Rules of Evidence. Federal Rule of Evidence 803(5) provides that "[i]f admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party." "Admitted" authorizes formal admission by the judge while the reference to "received" prohibits physical receipt of the exhibit by the jury.

The foundation for this hearsay exception includes these elements:

1. The witness formerly gained personal knowledge of the fact or event recorded. There is authority that if the declarant disavows personal knowledge, the proponent may rely on other testimony to establish this element of the foundation. State v. Nava, 177 Wn. App. 272, 311 P.3d 83 (2013).
2. The witness subsequently prepared a record of the facts. All courts accept the foundation if the witness personally prepared the record. Most courts accept the record if a third party prepared it but the witness verified it while the events were still fresh in the witness's memory. Some courts also accept cooperative past recollection recorded; witness #1 gives an accurate oral report to witness #2, and witness #2 testifies that he or she accurately transcribed the oral report. The cooperative theory necessitates that both witnesses appear at trial and testify. (Most jurisdictions now recognize the present sense impression exception codified in Federal Rule 803(1). If the judge is willing to apply that exception to witness #1's statement, witness #2's live testimony

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