§ 33.09 Recorded Recollection: FRE 803(5)

• Jurisdiction: United States

§ 33.09 Recorded Recollection: FRE 803(5)

Suppose a witness sees a car flee from the scene of a bank robbery and writes down the license plate number. Months or years later at trial, the witness cannot remember the number but testifies that she accurately wrote it down at the time of the robbery. Recorded recollection is the hearsay exception that the prosecutor will use to admit the writing.

Rationale. The trustworthiness of recorded recollection "is found in the reliability inherent in a record made while events were still fresh in mind and accurately reflecting them."⁹¹ In other words, a writing accurately recording an event near in time to the event will have reduced memory risks. Moreover, the lack of present memory compels a choice between such a writing or nothing. The exception for recorded recollection should be distinguished from the practice of refreshing recollection, which does not involve hearsay evidence and is governed by Rule 612. The distinction between the two rules is discussed with Rule 612.⁹²

Rule 803(5) requires that the witness (1) made or adopted a record, (2) based on firsthand knowledge,⁹³ (3) when the matter was fresh in the witness's memory, and (4) the record correctly reflected the witness's knowledge. Finally, (5) the witness at trial must have insufficient recollection to testify "fully and accurately" about the matter recorded.⁹⁴

[A] Time Requirement

The record must have been made or adopted close to the time of the event. This requirement is designed to ensure the reliability of the record by reducing memory risks. Common law cases required that the record be prepared "at or near the time of the event." In contrast, the rule specifies "when the matter was fresh in the witness's memory." This formulation follows Wigmore's view that the "at or near the time" requirement was too restrictive and arbitrary.⁹⁵

[B] Preparation Requirement; Joint Records

Rule 803(5) requires that the record have been "made or adopted by the witness." As with the time requirement, this condition is designed to ensure the reliability of the record. If a witness makes a statement to a third person who prepares a record, the record is admissible if the witness verified the accuracy of the record ("adopted") at a time when the event was fresh in her own memory.

Joint (cooperative) records. Even if the observer did not verify the record, it may be admissible if the recorder testifies that the record contains an accurate account of the observer's...