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.

    While the literal text of the rule might prompt philosophical reflection regarding whether the record complies with subpart (c), and how one might go about proving “accuracy” when the witness does not remember enough about the matter to testify fully and accurately, courts have taken a pragmatic approach in applying the rule. See Priester v. Texas, No. 08-13-00278-CR, 2015 Tex. App. LEXIS 10165, *28–*29 (Tex. Ct. App. 8th Dist. Sept. 30, 2015) (even where a witness displayed an inconsistent or spotty memory, the court allowed the state to read the witness’s prior grand jury testimony into the record, as the witness’s recollection would only be partial). 

    Still, counsel will not be able to establish a proper foundation when the witness cannot vouch for the accuracy of the statement because she does not remember making it, meaning that it cannot be shown to “accurately reflect[] the witness’s knowledge” at the time the witness offers her testimony. Kubsch v. Neal, 800 F.3d 783, 793–94 (7th Cir. 2015) (applying Indiana law, but describing outcome as consistent with federal evidentiary rules and those applicable in other states). 

    What about a situation where the witness made a statement to another person, and that other person was the one who took notes of the conversation? Even if it was not contemporaneously “adopted by” the witness, courts have found that it is admissible, provided that the witness testifies that the record is accurate. Bostwick v. Watertown Unified School District, Case No. 13-C-1036, 2015 U.S. Dist. LEXIS 46495 (E.D. Wis. April 9, 2015); see also United States v. Williams, 951 F.2d 853 (7th Cir. 1993). This result appears to be at odds with the express terms of the rule, but many courts have permitted this evidence nonetheless. If the witness is not present to testify at all, however, this hearsay exception will not apply. Arizona v. Havatone, No. 1 CA-CR 14-0223, 2015 Ariz. App. Unpub. LEXIS 1298 at *27 n.7 (Ariz. Ct. App. Oct. 27, 2015) (statement from a deceased witness not admissible).  

    Counsel should also consult Rule 612 when considering this type of evidence. That rule gives an adverse party certain rights when a writing has been used by a witness to refresh his memory, at or before the party offers the testimony into evidence. For example, counsel can demand to inspect the writing, may cross-examine the witness about it, and may introduce in evidence any other portion that relates to the witness’s testimony. 

    Notwithstanding the exception to the hearsay rule provided for recorded recollections, another common problem in these types of documents is hearsay within hearsay. This can be important because the really objectionable (or critically important, depending on your circumstances) evidence might still be kept out of trial altogether under that rationale.

    Ryan W. Babcock is of counsel at Freeman Mathis & Gary in Atlanta, Georgia.

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