Chapter 3 - §14. Exception—Past recollection recorded

• Jurisdiction: United States

§14. Exception—Past recollection recorded

A statement previously made by a witness and recorded in a writing is admissible as an exception to the hearsay rule if the statement concerns a matter about which the witness has insufficient present recollection. Evid. C. §1237.

§14.1. Overview. When a witness testifies that she cannot recall enough about a matter to testify fully and accurately, a written record of her knowledge about the subject when made may be introduced as substantive evidence. Evid. C. §1237.

§14.2. Requirements for exception. For a written statement to be admissible under the past-recollection-recorded exception, the following criteria must be met:

1. Past statement recorded in writing. The witness's previous statement must be contained in a "writing." Evid. C. §1237(a). That term is broadly defined to include any tangible record of a statement. See Evid. C. §250.

2. Statement admissible as testimony. The statement must have been admissible if it were made by the witness while testifying (i.e., the statement must be based on personal knowledge and not contain objectionable lay opinions). Evid. C. §1237(a). See "Testimony," ch. 2, §1.

3. Witness has insufficient present recollection. The statement must concern a matter about which the witness has insufficient present recollection to testify fully and accurately. Evid. C. §1237(a).

4. Writing made while facts were fresh. The writing must have been made when the facts recorded in the writing actually occurred or were fresh in the witness's memory. Evid. C. §1237(a)(1); see People v. Potts (2019) 6 Cal.5th 1012, 1050; People v. Cowan (2010) 50 Cal.4th 401, 466 (discussing and collecting California and federal cases on permissible lapses of time between event and its recording under Evid. C. §1237). In Cowan, the California Supreme Court concluded that a declarant's memory was reasonably fresh three months after an event; the declarant's recollection was adequately detailed and he did not appear to law enforcement at the time to be delusional, under the influence of drugs, or going through withdrawal. Cowan, 50 Cal.4th at 465-66. While the Court noted in Cowan that a declarant's memory could still be fresh after lapses of months or even a few years, the Court recently held that a lapse of 16 years makes this showing extremely difficult if not impossible. In re Bell (2017) 2 Cal.5th 1300, 1307-08; see also People v. Royal (4th Dist.2019) 43 Cal.App.5th 121, 145-46 (while court did not conclude...