In a series of blog posts, I’ve been tackling the most common hearsay exceptions. This post focuses on the Rule 803(5) exception for recorded recollections. N.C. Rule 803(5) contains a hearsay exception for “[a] memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable him to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in his memory and to reflect that knowledge correctly.”
A lot of folks confuse this hearsay exception with the technique of present recollection refreshed under Evidence Rule 612. Don’t do that! When a witness testifies that he or she cannot remember the matter in question, the proponent may have the witness review a document or item in order to refresh the witness’ memory. If reviewing the material sufficiently refreshes the witness’s recollection, the witness then testifies to the matter in question and no hearsay issues are presented. That is present recollection refreshed. When, however, the witness’ memory cannot be refreshed, the proponent may seek to introduce the contents of a memorandum or record created by the witness as a recorded recollection, and in lieu of the witness’ trial testimony. See, e.g., State v. Spinks, 136 N.C. App.153, 158 (1999) (State turned to this exception when unable to refresh the witness’ recollection). To be admissible as a recorded recollection, the contents of the memorandum or record must satisfy Rule 803(5). See generally State v. Harrison, __ N.C. App. __, 721 S.E.2d 371, 375-76 (2012) (explaining the distinction).
Want to get a statement in under the Rule 803(5) exception? Want to keep one out? Here are the foundational requirements.
Memorandum or Record. By its terms the exception applies to a “memorandum or record.” Case law says this includes audio recordings. State v. Wilson, 197 N.C. App. 154, 160 (2009).
Recollection of Having Made the Statement. The declarant must remember having made the statement. State v. Wilson, 197 N.C. App. 154, 160 (2009) (statement inadmissible when witness did not recall making the statement and because of her mental state testified that she was “liable to say anything”). Typically this is easily satisfied by the witness’s testimony to that effect. State v. Love, 156 N.C. App. 309, 315 (2003) (witness so testified). Note that this requirement is not applied rigidly. State v. Leggett, 135 N.C. App. 168, 173 (1999) (statement properly admitted where the witness testified that the statement “was in his handwriting and contained his signature, but he could not remember writing it”; the witness “further testified that, although he could not remember writing the statement, what he wrote was true”).
Insufficient Recollection of Contents. The rule requires that the witness have “insufficient recollection to enable him to testify fully and accurately” about the matter. N.C. R. EVID. 803(5); State v Harrison, __ N.C. App. __, 721 S.E.2d. 371, 375 (2012) (stating this requirement); State v. Love, 156 N.C. App. 309, 315 (2003) (statement admissible where witness testified that she no longer had a sufficient recollection as to the matter). Where there is no showing that the witness has an insufficient recollection or where the evidence shows that the witness’s memory of the event is clear and complete, the exception does not apply. State v. Cummings, 361 N.C. 438, 475 (2007) (evidence showed that the witness’s memory was sufficient); State v. Alston, 161 N.C. App. 367, 371 (2003) (no showing that the defendant had an insufficient memory).
Witness Had Knowledge. The proponent must establish that the document pertains to matters about which the declarant once had knowledge. N.C. R. EVID. 803(5); see, e.g., State v. Love, 156 N.C. App. 309, 314 (2003).
Made or Adopted by Witness. The memorandum or record must have been made or adopted by the witness at the time. Note that it need not have been made by the witness, if it was examined and adopted by the witness. Compare State v. Love, 156 N.C. App. 309, 315 (2003) (victim adopted the statement), with State v. Spinks, 136 N.C. App. 153, 159 (1999) (this requirement was not satisfied when the witness testified that she signed the statement without having read it). If the statement was prepared by someone else, adoption doesn’t require the declarant’s signature. Love, 156 N.C. App. at 315 n.1 (victim’s recorded recollection given to police was admissible even though it was an unsigned computer printout).
Made When Memory Was Fresh. The memorandum or record must have been made or adopted when the matter was fresh in the witness’s memory. N.C. R. EVID. 803(5). There are no bright line rules as to the timing of the memorandum or report’s creation; the matter need only have been fresh in the witness’s memory when created. See State v. Nickerson, 320 N.C. 603, 607 (1987) (witness’s testimony established that the statement was adopted when the matter was fresh in the witness’ memory); State v. Love, 156 N.C. App. 309, 315 (2003) (statement admissible when witness testified that she made the statement when the events of the night were “fresh in her mind”).
Accurate. The memorandum or record must correctly reflect the witness’s knowledge at the time. N.C. R.EVID. 803(5). Simply put, it must be accurate. Thus, in one case a statement was held inadmissible when the witness testified that because of her mental state at the time she was “liable to say anything.” State v. Wilson, 197 N.C. App. 154, 160 (2009); see also State v. Hollingsworth, 78 N.C. App. 578, 581 (1985) (statement inadmissible when witness testified that the letter did not correctly reflect her knowledge of the events and that the “whole letter [was] a lie”).
One final note about trial practice. If admitted, the memorandum or record may be read into evidence but may not be received as an exhibit unless offered by an adverse party. N.C. R. EVID. 803(5). The rationale for this is to “prevent a jury from giving too much weight to a written statement that cannot be effectively cross-examined.” State v. Spinks, 136 N.C. App. 153, 159 (1999) (citation omitted).