Pg 33

Question 1

What are PRRs?

Answer 1

Situations where the witness once knew affect, but no longer does

Question 2

What are the two types of PRRs?

Answer 2

Present recollection refreshed

Past recorded recollection

Question 3

What is involved in present recollection refreshed?

Answer 3

The witness is asked a question he once knew the answer to, but he no longer does. If showing a document/item to the witness jogs his memory so he can move forward with his testimony, his recollection has been refreshed.

Question 4

Why is present recollection refreshed not technically a hearsay exception?

Answer 4

Because the jury never hears an out of court statement, so technically it is non-hearsay

Question 5

What are the other party’s rights when it comes to present recollection refreshed?

Answer 5

The adverse party can:
– inspect the document
– cross examine the witness about it
– introduce relevant parts on cross-examination with the purpose of impeaching credibility (BUT NOT TO PROVE doc’s truth)

Question 6

If a witness just had her memory refreshed with a journal entry, then on cross-examination the attorney uses the diary and says, “this just says that puppies are cute, did that really refresh your memory?“ Would that be OK under present recollection refreshed?

Answer 6

Yes because the attorney isn’t reading the entry to prove its truth that puppies are cute, but to undercut the credibility of the witness’ testimony

Question 7

What is the procedure for present recollection refreshed?

Answer 7

The witness says he forgot something, is shown a refreshing document, reads it silently to himself, when his memory has been refreshed he testifies as he would have if he remembered the fact on his own

Question 8

In a car accident case, the witness’s attorney asks, “do you remember what happened that day one year ago?” The witness says, “no, but I wrote it down in my journal.“ “Would looking at a copy of your journal refresh your recollection?“ “Probably.“ If the attorney says she has the journal, shows it to opposing counsel, asks the judge’s permission to approach the witness, tells the witness she just handed her the journal, and the witness reads it silently and then looks up when done, then the attorney asks, “has your recollection been refreshed?“ And the witness says yes, what can the attorney do next?

Answer 8

He can ask the same question about what happened that day

Question 9

Is it permissible for a witness that is trying to have their present recollection refreshed after looking at the refreshing document to still not remember, but to say “the journal says the defendant ran the red light.“?

Answer 9

No, because the witness’ memory wasn’t actually refreshed, so the witness has no independent recollection, the witness is just reading from the document. That means that the witness is introducing an out-of-court statement for its truth

Question 10

What is the rationale behind present recollection refreshed as an exception to hearsay?

Answer 10

Because the jury only ever hears the witness’ testimony, not the content of the document, hearsay is not implicated since the out-of-court statement is not offered for truth or any other purpose

Question 11

What’s the difference between a criminal case and a civil case regarding what must be produced in order for present recollection refreshed to occur?

Answer 11

• CRIM: The refreshing party must produce the document, or the court can strike the witness’ testimony or declare a mistrial
• CIV: If the refreshing party does not produce the document, the court has discretion for how to deal with it

Question 12

Must the document that is used for present recollection refreshed be the witness’ own prior statement?

Answer 12

No, any document that could refresh the witness’ recollection is fine

Question 13

What is included in past recorded recollection as a hearsay exception?

Answer 13

If showing a document to a witness doesn’t jog their memory, or they know their memory cannot be refreshed, the document can be used as evidence in lieu of the witness’ testimony.

Question 14

What’s the rationale behind past recorded recollection?

Answer 14

Need and reliability. Some witnesses like cops/paramedics are repeat players that deal with hundreds of similar incidences and often have to testify many months later. Naturally they cannot remember all of the details, but they usually record their observations near the time of occurrence. Those observations are likely to be reliable because they are fresh in the witness’ mind and the Ws are motivated to accurately record their observations

Question 15

In a car accident if the plaintiff’s attorney asks the witness “do you remember what happened that day?“ “No but I wrote it down in my journal.“ “Would looking at your journal refresh your recollection?“ “No.“ What other questions would the attorney have to ask in order to use past recorded recollection?

Answer 15

“How soon after did you write it in your journal?”“Within hours.“

“Did you accurately record your observations in your journal?““Oh for sure.“

“Your honor, I am asking permission to read into the record the journal for the date of the accident.“

Question 16

What are the elements required for past recorded recollection?

Answer 16

– It relates to a matter the witness once knew about but can no longer recall well enough to testify fully and accurately about
– was made or adopted by the witness when the matter was fresh in his memory
– it accurately reflects the witness’ knowledge
– the document can only be read into the evidence, it cannot be received as an exhibit

Question 17

If a witness never knew a fact, can it be admitted as a past recorded recollection?

Answer 17

No, it has to be about something that the witness once knew but now can’t recall

Question 18

Is it essential that the document that is used for past recorded recollection be the witness’ document?

Answer 18

No

Question 19

What does it mean that the document can only be read into the record, not received as an exhibit for past recorded recollection?

Answer 19

The document does not go back to the jury room like documents that are admitted into evidence would

Question 20

What is the reasoning that a document can only be read into the record and not received as an exhibit under past recorded recollection?

Answer 20

Because the document is a substitute for live testimony that cannot be gotten because the witness’ memory has failed, live testimony doesn’t go back to the jury room, so evidence that substitutes for live testimony doesn’t either

Question 21

What must you read very carefully for when you’re dealing with past recorded recollection?

Answer 21

If it says, “admit document into evidence” that is a warning flag. It should only ever involve reading a document instead of giving oral testimony

Question 22

What is involved in party opponent admissions as an exception to hearsay?

Answer 22

They all have a party eliciting an out-of-court statement for its truth made by the opponent

Question 23

How many different kinds of party opponent admissions are there and what are they?

Answer 23

Seven
- Direct admissions
– Adoptive admissions 
– authorized admissions
– agent admissions
- co-conspirator admissions
– other admissions including: judicial admissions and statements of witnesses prevented from testifying

Question 24

What is a direct admission that is an exception to hearsay?

Answer 24

This regards the opposing party’s statements. It applies when the statement is made in an individual or representative capacity. Any out-of-court statement by a party is admissible when elicited by the party opponent at trial

Question 25

What is the focus for direct admissions as an exception to hearsay?

Answer 25

Whether the party eliciting the statement and the declarant/speaker that made the statement are on opposite sides

Question 26

If a plaintiff sued a D for negligence from a car accident, and at trial the plaintiff testified that after the accident, defendant said “it was all my fault.“ Is that hearsay?

Answer 26

No, it is a party opponent admission. The plaintiff is offering the out-of-court statement of an opposing party through a witness/himself so he can use the statement for the truth of the matter asserted

Question 27

What is the rationale behind party opponent admissions?

Answer 27

Estoppel. If the other side said it, they are stuck with it

Question 28

If there was a car accident case where the plaintiff’s counsel asked the plaintiff to testify about what the defendant said right after the accident. “He said, “oh no! I didn’t see the red light until the last second, so then I ran it.“ Would that be admissible?

Answer 28

Yes because the plaintiff is eliciting an out-of-court statement of his party opponent for its truth