§ 21.10 Recorded Recollection Distinguished

• Jurisdiction: United States

§ 21.10 Recorded Recollection Distinguished

Refreshing recollection (Rule 612) must be distinguished from the hearsay exception for recorded recollection (Rule 803(5)).³⁰

Under the hearsay exception, the writing is the evidence. In contrast, under Rule 612 the testimony of the witness whose recollection has been refreshed is the evidence.³¹ The writing itself is not admissible unless (1) introduced by the opposing party (only for impeachment) or (2) some other evidence rule applies.

The different requirements for the two rules are significant but often confused.³²The recorded recollection exception, like other hearsay exceptions, is based on certain circumstantial guarantees of trustworthiness. Accordingly, Rule 803(5) requires a foundation showing that the witness, (1) based on firsthand knowledge, (2) made or adopted the writing, (3) when the matter was fresh in the witness's memory, and (4) the writing correctly reflects the witness's knowledge. In addition, the witness's lack of memory must prevent the witness from testifying "fully and accurately" about the matter recorded. None of these requirements apply to refreshing recollection. The writing need not have been prepared or adopted by the witness, nor made when the matter was fresh in the witness's memory. Nor does the writing have to be accurate.³³

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Notes:

^[30] See infra § 33.09 (discussing recorded recollection).

^[31] See Rush v. Illinois Cent. R. Co., 399 F.3d 705, 718 (6th Cir. 2005) ("It is the witness's present refreshed recollection—as opposed to the contents of the writing used to refresh memory—that is the substantive evidence of the matter at issue.").

^[32] See 3 Wigmore, Evidence § 758, at 128 (Chadbourn rev. 1970) ("None of the limiting rules . . . for past...