April 01, 2016 Practice Points

Hearsay Exception for Recorded Recollections: Pitfalls to Avoid

Lessons to learn from recent cases

by Ryan W. Babcock

Rule 803(5) of the Federal Rules of Evidence operates as an exception to the hearsay rule, provided the requirements governing the rule as to the “recorded recollection” are satisfied. The rule is as follows 

Recorded Recollection. 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 admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.

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