Evidence Learning Questions - Set 4 Flashcards
Which statement is true regarding a memorandum used at trial to refresh a witness’s present recollection?
A
The party using it is entitled to offer it into evidence.
B
It may be offered into evidence by the adverse party.
C
It must be authenticated before it is shown to the witness.
D
The memorandum must have been signed by the testifying witness when made.
B
Under Federal Rule 612, whenever a witness has used a writing to refresh her memory on the stand, an adverse party is entitled to have the writing produced at trial, to inspect it, to cross-examine the witness thereon, and to introduce it into evidence.
Unlike the adverse party, the party using a memorandum to refresh the witness’s recollection has no right to offer it into evidence.
When a memorandum is used at trial to refresh a witness’s recollection, it may be used solely to refresh her recollection and need not be authenticated.
There is no signature requirement for a memorandum used to refresh the witness’s recollection.
A memorandum used by a party at trial to refresh a witness’s present recollection:
A
Is then introduced into evidence by the party using it
B
Need not be authenticated
C
Is usually read by the witness while testifying
D
Is considered an exception to the hearsay rule
B
When a memorandum is used at trial to refresh a witness’s recollection, it may be used solely to refresh her recollection and need not be authenticated. The writing is intended to help the witness to recall by jogging her memory, but the witness usually may not read from the writing while testifying. The memorandum is not introduced into evidence by the party using it to refresh the witness’s recollection (although it may be introduced by the adverse party). Because a memorandum used solely to refresh a witness’s recollection is not introduced into evidence, it is not hearsay and need not fall within a hearsay exception.
Under the “past recollection recorded” exception to the hearsay rule, certain writings made by a declarant at or near the time of the event in question may be admissible.
Which of the following statements regarding this exception to the hearsay rule is true?
A
The writing may be reviewed by the witness to aid in her testimony, but may not be read into evidence or heard by the jury.
B
The witness need not have known about the writing prior to trial, as long as it concerns the event in question.
C
The exception applies where the witness’s memory of the event cannot be revived by looking at the writing.
D
The declarant must be unavailable for trial.
C
Under the “past recollection recorded” exception to the hearsay rule, where a witness’s memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event, a party may introduce the writing into evidence.
There is no requirement that the declarant be unavailable for the exception to apply. Rather, the exception applies when the witness is on the stand and unable to recall the event even after reviewing the writing.
There are several foundational requirements for the admission of a writing under this exception. One is that the writing must have been made by the witness, made at the witness’s direction, or adopted by the witness. Thus, the witness must have known about the writing before trial.
If admitted under this exception, a writing may be read into evidence and heard by the jury (but not received as an exhibit unless offered by the adverse party). This is in contrast to “present recollection revived,” which allows a party to use a writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.
The “recorded recollection” exception to the hearsay rule allows the offering party to:
A
Use a writing as a substitute for an unavailable declarant’s testimony
B
Admit a writing into evidence as an exhibit
C
Introduce a writing into evidence by reading it aloud
D
Refresh the witness’s recollection with a writing but not read it to the jury
C
Under the “recorded recollection” exception to the hearsay rule (also called “past recollection recorded”), where a witness’s memory of an event cannot be revived by reviewing a writing made by the witness at or near the time of the event, a party may introduce the writing into evidence by reading it aloud to the jury.
The “recorded recollection” exception is in contrast to “present recollection revived,” which allows a party to use a writing for the purpose of refreshing the witness’s memory on the stand. In that case, the writing may be used solely to refresh the witness’s recollection and is not introduced into evidence.
If admitted under the “recorded recollection” exception, a writing may be read into evidence and heard by the jury, but it is not received as an exhibit unless offered by the adverse party.
The “recorded recollection” exception only applies when a testifying witness is unable to remember the contents of the writing (and when several other foundational requirements are met). It does not apply when a declarant is unavailable.
A witness in a contract case testified on direct examination that four people attended a meeting. When asked to identify them, she gave the names of three, but despite trying, was unable to remember the name of the fourth person. The attorney who called her as a witness seeks to show her his handwritten notes of the part of his pretrial interview with her in which she provided all four names.
What is the trial court likely to consider the showing of the notes taken?
A A proper attempt to introduce recorded recollection.
B A proper attempt to refresh the witness’s recollection.
C An improper attempt to lead the witness.
D An improper attempt to support the witness’s credibility.
B
Showing the witness the notes is a proper attempt to refresh her recollection. A witness may use any writing or thing for the purpose of refreshing her present recollection. This is known as “present recollection revived.” Under most circumstances, she may not read from the writing while she actually testifies because the writing is neither authenticated nor in evidence. Here, the writing was shown to her solely to refresh her recollection and is, therefore, proper. (A) is incorrect because it describes “past recollection recorded,” which is a hearsay exception [Fed. R. Evid. 803(5)] allowing the writing itself to be introduced into evidence if a proper foundation is laid for its admissibility. Here, there is no attempt to enter the notes into evidence. (C) is incorrect because what the attorney is asking to do does not constitute a traditional “leading question,” which generally calls for a “yes” or “no” answer or is framed to suggest the desired answer. Furthermore, the ordinary rules on leading questions may be waived when the witness needs help to respond because of loss of memory. (D) is incorrect because aiding a witness’s present recollection has nothing to do with bolstering the witness’s credibility (which generally may not be done until the witness has been impeached).
A bank executive was on trial for embezzling $10,000 from the bank where he worked. A key witness for the prosecution was called to testify, but on the stand he had difficulty remembering the specifics of a conversation he had with the executive regarding the executive’s accounting procedures. To refresh the recollection of the witness, the prosecutor showed the witness a memorandum that the witness had written for his file, detailing the conversation. The witness reviewed the memorandum, and then testified that he recalled the conversation. He proceeded to testify about the specifics of the conversation. The defense counsel then asked that the memorandum be introduced into evidence.
How should the court rule on the memorandum?
A Exclude the evidence if it determines that the witness’s memory was refreshed.
B Exclude the evidence if it determines that a reasonable jury would conclude that the witness’s memory was refreshed.
C Admit the evidence if it determines that the witness’s memory was not refreshed.
D Admit the evidence if it was used to refresh the witness’s recollection.
D
The court should admit the evidence if it was used to refresh the witness’s recollection. Because the witness read the notes, and then had an independent recollection of events, this qualifies as a present recollection refreshed. Normally a writing used to refresh is not placed into evidence. However, under Federal Rule of Evidence 612, if a writing is used to refresh the recollection of a witness, the opposing party has a right to introduce the document into evidence. Thus, (A) and (B) are incorrect. (C) is incorrect because, if the witness’s memory was not refreshed, the memorandum would have to be introduced as a past recollection recorded. The proper foundation has not been laid for admission of a past recollection recorded.
A boater and a water skier were involved in a boating accident. Shortly after the accident, the water skier prepared a written summary of the events surrounding the accident. At trial two years later, the water skier is on the stand and is unable to accurately recall the details of the accident, even after reviewing the aforementioned account of the accident.
Assuming a proper foundation is laid, may the summary of the accident be read into evidence?
A No, because the best evidence is the writing itself.
B Yes, because the water skier’s memory of the actual event is insufficient.
C Yes, because it refreshes the water skier’s recollection.
D Yes, even though hearsay, because the out-of-court declarant is on the stand and is capable of being cross-examined.
B
The summary of the accident may be read into evidence. If the witness on the stand has insufficient recollection to testify to a relevant event fully and accurately, Federal Rule 803(5) permits the introduction of an out-of-court written record of the event made by the witness at a time when the witness’s memory of the event was fresh. The fact that the witness’s memory of the actual event is insufficient even after reviewing the summary would satisfy that standard, assuming a proper foundation has been laid for reading the statement into evidence. If the past recollection recorded is admissible, the record itself may not be admitted; unless it is offered into evidence by the adverse party, the offering party may only read the record to the jury, as here. (A) is incorrect. There is no question that the document which is read must satisfy the best evidence rule and be either the original or a duplicate, or there must be a satisfactory excuse for nonproduction of an original. There is no indication in this case that the summary in the witness’s possession would fail to satisfy the best evidence rule. It appears to be her original notes. The real question here is whether the document in question is admissible despite the hearsay rule. (C) is incorrect. If a written record is used to refresh the memory of a witness who then proceeds to testify from her own memory as to the matter, then the memorandum is not evidence coming within the past recollection recorded exception under Federal Rule 803(5). A document which is used to refresh a witness’s memory may not be read to the jury. Instead, the witness will testify from her refreshed memory. (D) is incorrect. The hearsay rule applies in general to any out-of-court statement, whether or not the declarant is available for cross-examination. However, this statement comes within the hearsay exception for a past recollection recorded under Federal Rule 803(5). Under that Rule, the contents of the memorandum may be read to the jury.
The plaintiff sued the defendant, alleging that the defendant allowed her dogs to roam onto the plaintiff’s land and cause significant damage to his landscaping. The defendant denied the allegations and called a witness to testify on her behalf. The witness testified on direct examination that she visited the defendant every day and that the defendant never allowed her dogs to leave the perimeter of her property. On cross-examination, the plaintiff’s counsel presented the witness with a letter written by the witness to a friend in which she expressed her dismay that the defendant allowed her dogs to roam throughout the neighborhood. The plaintiff’s counsel requests that the witness read the letter to herself prior to cross-examination. The defendant objects.
May the witness refer to the letter?
A Yes, to refresh her recollection prior to being cross-examined.
B Yes, because it is a past recollection recorded.
C No, because it has not been formally offered into evidence.
D No, because the witness has not claimed any inability to remember.
D
The witness may not refer to the letter. Generally, a memorandum can be used to refresh the recollection of a witness, to substitute for forgotten testimony, or on cross-examination. Here, the plaintiff’s counsel can use the letter to impeach the witness’s testimony because it is a prior inconsistent statement. To do so, he can cross-examine her as to the contents of the letter (as opposed to having her read it to herself prior to cross-examination, as he attempted to do) to show that she has made statements contrary to her testimony, thereby discrediting her testimony. (A) is incorrect because refreshing recollection does not apply. A witness may use a writing for the purpose of refreshing her present recollection while she is testifying, but here the witness has testified and has not claimed any inability to remember the facts about which she testifies. (B) is similarly incorrect. If the witness states that she has an insufficient recollection of events even after consulting a writing, the writing may be read into evidence as a recorded recollection. Again, however, there is no indication of insufficient recollection. Therefore, there is no basis for the plaintiff’s counsel to ask her to read the letter to herself prior to beginning cross-examination. (C) is incorrect because the memorandum does not need to be offered into evidence; a witness may simply refer to it to refresh recollection prior to giving her testimony.
