Black-letter propositions
- 01
When a witness uses a writing to refresh memory while testifying, or before testifying if the court decides that justice requires it, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.
- 02
If the producing party claims the writing includes unrelated matter, the court must examine it in camera, delete the unrelated portion, and order the rest delivered to the adverse party.
- 03
If a writing is not produced or delivered as ordered, the court may issue any appropriate order, but if the prosecution does not comply in a criminal case the court must strike the witness's testimony or, if justice so requires, declare a mistrial.
- 04
A recorded recollection is not excluded by the rule against hearsay, regardless of whether the declarant is available, if the record is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately, was made or adopted by the witness when the matter was fresh in the witness's memory, and accurately reflects the witness's knowledge.
- 05
If a recorded recollection is admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
- 06
A statement offered against an opposing party is not hearsay if the party manifested that it adopted the statement or believed it to be true.
- 07
A statement offered against an opposing party is also not hearsay if it was made by the party, by a person the party authorized to make a statement on the subject, by the party's agent or employee on a matter within the scope of that relationship and while it existed, or by a coconspirator during and in furtherance of the conspiracy.
- 08
The statement of an agent, an authorized speaker or a coconspirator must be considered but does not by itself establish the declarant's authority, the existence or scope of the relationship, or the existence of the conspiracy or participation in it.
- 09
Hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule.
- 10
Refreshing recollection is not itself hearsay, because the writing is not offered for its truth, while recorded recollection is an exception that puts the record itself in evidence.
- 11
A record of recorded recollection may be admitted only on the foundation that the witness cannot now recall the matter well enough to testify fully and accurately, so a witness with full memory does not qualify.
- 12
An adverse party may introduce a portion of the refreshing writing that relates to the witness's testimony, but the party that used it to refresh does not thereby get to introduce it as an exhibit.
Use this attack sequence under time
Frame the issue
Ask whether the writing is being used to jog memory or to be read as evidence.
Resolve the next checkpoint
If used to refresh, check the adverse party's rights to see it and use it on cross.
Resolve the next checkpoint
If offered as recorded recollection, check the three foundations and who is offering the exhibit.
Finish the conclusion
For layered statements, identify each layer and match each to an exception or to a non-hearsay rule.
Common wrong turns
- A recorded recollection may be read to the jury, but the record itself goes in as an exhibit only if the adverse party offers it.
- A writing that refreshes memory does not become evidence merely because it was used.
- Each layer of multiple hearsay needs its own exception, and one exception does not cover both layers.
Worked example
A witness cannot recall a license plate number. The lawyer shows her a note she wrote at the scene, and after reading it she testifies to the number from her own memory.
The note refreshed her memory and is not itself evidence. The adverse party may inspect it, cross-examine about it and offer any part related to her testimony.
Practice this topic
Writings used to refresh memory
Federal Rule of Evidence 612(a) gives an adverse party certain options when a witness uses a writing to refresh memory while testifying, or before testifying if the court decides that justice requires the party to have those options. Rule 612(b) says that, unless 18 U.S.C. section 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.
If the producing party claims the writing includes unrelated matter, Rule 612(b) requires the court to examine the writing in camera, delete any unrelated portion, and order the rest delivered to the adverse party, and any portion deleted over objection must be preserved for the record. Under Rule 612(c), if a writing is not produced or delivered as ordered, the court may issue any appropriate order, but if the prosecution does not comply in a criminal case the court must strike the witness's testimony or declare a mistrial if justice so requires.
Recorded recollection and statements of a party
Rule 803(5) excepts from the hearsay rule a record that is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately, that was made or adopted by the witness when the matter was fresh in the witness's memory, and that 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.
Rule 801(d)(2) says a statement offered against an opposing party is not hearsay if it was made by the party, is one the party manifested that it adopted or believed to be true, was made by a person the party authorized to make a statement on the subject, was made by the party's agent or employee on a matter within the scope of that relationship while it existed, or was made by the party's coconspirator during and in furtherance of the conspiracy. The statement must be considered but does not by itself establish the declarant's authority, the relationship, or the conspiracy.
Hearsay within hearsay
Rule 805 provides that hearsay within hearsay is not excluded by the rule against hearsay if each part of the combined statements conforms with an exception to the rule. The analysis therefore takes each level separately: the statement of the person who made the underlying statement, and the statement of the person who recorded or repeated it.
For example, a business record in which an employee reports what a customer said needs an exception for the record itself and a separate basis for the customer's statement, such as a party statement or another exception, before the customer's words can come in for their truth.
Frequently asked questions
What is the controlling rule for refreshing memory, recorded recollection, adopted statements, and hearsay within hearsay?+
Separate refreshing from recorded recollection, list the adverse party's rights, test each layer of multiple hearsay, and use the party-statement rules for adopted statements.
What is the difference between refreshing memory and recorded recollection?+
Refreshing uses a writing to jog memory and the writing is not evidence, while recorded recollection is a hearsay exception that lets the record itself be read, under Rules 612 and 803(5).
What can the other side do when a witness uses a writing to refresh memory?+
Have it produced, inspect it, cross-examine about it, and introduce any portion relating to the testimony, under Rule 612(b).
Can a recorded recollection go to the jury as an exhibit?+
Only if offered by an adverse party, since otherwise it may be read into evidence, under Rule 803(5).
When is an opponent's statement not hearsay?+
When it was made or adopted by the party, or made by an authorized speaker, an agent or employee within the scope of the relationship, or a coconspirator in furtherance, under Rule 801(d)(2).
How does hearsay within hearsay work?+
Each layer must fit a hearsay exception or exclusion, or the statement is not admitted for its truth, under Rule 805.