A Recorded Recollection
This exception lets a written record stand in for a memory that has faded.
13. Admissibility of a Recorded Recollection
A hearsay statement is admissible if it is based on 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.” Fed. R. Evid. 803(5).
- This exception applies only if a party can establish all three foundational elements:
- The witness must testify to their lack of recollection before the record is admitted.
- The witness must also demonstrate that they made or adopted the record when the matter was fresh in their memory.
- The witness must also testify that the record accurately reflects their knowledge.
- Statements admitted pursuant to this exception are not admitted directly into evidence. Instead, they are read into evidence. Fed. R. Evid. 803(5).
This exception lets a written record stand in for a memory that has faded, when the witness once knew the facts firsthand but now cannot recall them well enough to testify fully and accurately. A party must establish three foundational elements.
The witness once knew the facts firsthand, but by the time of trial they cannot recall those facts well enough to testify fully and accurately. When that happens, a record the witness made or adopted back when the events were fresh can come in to supply what the live memory no longer can.
- 1The matter is something the witness once knew about but now cannot recall well enough to testify fully and accurately.
- 2The record was made or adopted by the witness when the matter was fresh in the witness's memory.
- 3The record accurately reflects the witness's knowledge.
The order in which the foundation is laid matters on this exception. The witness must testify to the lack of recollection before the record is admitted. The witness must also demonstrate the record was made or adopted while the matter was fresh, and must testify that the record accurately reflects what they knew. Notice the witness does not need to remember the underlying facts; that failure of memory is the whole reason the exception exists. What the witness must vouch for is the reliability of the record itself, that they made or adopted it when things were fresh and that it captured the truth as they knew it.
A record that qualifies under this exception is not admitted directly into evidence. It is read into evidence instead. The contents are read aloud so the factfinder hears them, but the paper itself does not go back to the jury room as an exhibit on the proponent's offer.
past recollection recorded: the memory is gone, the record stands in.
the witness once knew it but now can't recall well enough to testify fully and accurately
the record was made or adopted while the matter was fresh
it accurately reflects what the witness knew
The witness must first testify to the lack of recollection, and must vouch for the record, not the facts.
And the punchline that traps everyone: the record is read into evidence, not received directly as an exhibit.
A delivery driver witnessed a parking-lot collision and, an hour later that same afternoon, wrote out a careful description of what each car did while it was still vivid in her mind. Two years later she is called to testify. She honestly cannot recall the sequence of the cars well enough to describe it fully and accurately, but she remembers writing the description that afternoon and confirms that what she wrote was true when she wrote it. The party calling her wants the description before the factfinder.
Note how it comes in: the description is read into evidence for the factfinder to hear; on the proponent's offer the writing itself is not handed in directly as an exhibit. Flip one fact: if she could fully and accurately recall the collision on the stand, there would be no failure of present memory, and this exception would not apply at all.
An option that adds a requirement the rule does not impose, such as that the witness must presently remember the facts, must have authored the record personally, or that the record only refreshes a memory the witness then testifies from.
The trigger is a present failure of recollection; the witness vouches for the record, not a present memory, and the record may be one the witness made OR adopted.An option that loosens or shifts the timing, treating a record made long after the events as qualifying, or letting the witness testify to the lack of recall after the record is already admitted.
The record must be made or adopted while the matter was fresh, and the witness must testify to the lack of recollection before the record is admitted.An option that rejects the record simply because it is hearsay or because the witness did not write every word, ignoring that this is a recognized exception for an adopted record.
This is a hearsay exception; a record the witness made or adopted while fresh that accurately reflects their knowledge is admissible despite the hearsay label.A correct "admissible" answer keyed on the wrong rationale, such as the record refreshing memory or the writing going to the jury as an exhibit.
Name the operative reason: the three foundational elements are met, and the record is read into evidence rather than received directly on the proponent's offer.a witness on the stand cannot recall events they clearly observed in the past, and there is a writing, note, report, or recording the witness made or adopted close in time to those events.
The instant you see faded present memory plus an old record the witness vouches for, run the three-element check: once knew but cannot now recall well enough to testify fully and accurately, made or adopted while fresh, and accurately reflects the witness's knowledge.
If all three are met, the record comes in, but watch the form of admission: it is read into evidence, not handed to the factfinder directly as an exhibit.
If the witness can actually recall the facts on the stand, this exception is not in play at all.
A warehouse worker watched a forklift accident and, the same evening, typed a detailed account of exactly how it happened while the details were vivid to her. At trial three years later, she testifies that she can no longer recall the sequence of events well enough to describe it fully and accurately, but she identifies the account, confirms she typed it that evening, and confirms that everything in it was true when she wrote it. The party calling her offers the account.
Is the account admissible under the exception for a recorded recollection?
A bank teller observed a robbery and gave a careful description to a coworker, who wrote it down on the spot. The teller read the written description that same day, confirmed it was correct, and signed it. At trial, the teller testifies she can no longer recall the robber's appearance well enough to describe it fully and accurately, but she identifies the signed description and confirms she reviewed and approved it that day as accurate. The defense objects that the teller did not personally write the description.
Is the written description admissible under the exception for a recorded recollection?
A pharmacist who filled a prescription is called to testify about the exact dosage he dispensed on a particular day. Before any record is offered, he testifies that he simply cannot recall the dosage for that specific fill. He then identifies a log he completed at the time of the fill, testifies he wrote it while the details were fresh, and confirms it accurately recorded what he dispensed. The party offering the log asks that its qualifying entry be presented to the factfinder.
How is the qualifying log entry properly presented to the factfinder on the proponent's offer?
A property inspector took handwritten notes during a building walkthrough. He is called to testify about the conditions he found. On the stand, the inspector recalls the walkthrough in full and accurate detail and is able to describe every condition without any difficulty. The party calling him nonetheless seeks to introduce his notes under the exception for a recorded recollection, pointing out that the notes were written during the walkthrough and accurately recorded what he saw.
Are the notes admissible under the exception for a recorded recollection?
A security guard observed an altercation and, a week later after the details had grown hazy in his mind, sat down and wrote out what he thought had happened, doing his best to reconstruct it. At trial he testifies he cannot recall the altercation well enough to describe it fully and accurately, identifies the writing, and confirms it reflects his best reconstruction a week afterward. The party calling him offers the writing as a recorded recollection.
Is the writing admissible under the exception for a recorded recollection?