This tool is sometimes confused with present recollection refreshed. Yet, it is very different. Since the writing used to refresh the witness’s present recollection is almost never admissible into evidence, it is not considered hearsay at all. However, the writing which qualifies for treatment as “past recollection recorded” , is indeed hearsay, but may be admissible into evidence based upon this exception to the hearsay doctrine. Federal law, by the way, is essentially identical to California law on issues regarding past recollection recorded. The business lawyers help you to understand the business law or business details.
A prior hearsay statement of a witness (that is, an out-of-court statement or writing that is offered for the truth of the matters contained therein) is nevertheless admissible under the past recollection recorded exception to the hearsay doctrine if all six requirements of the statute, as interpreted by the case law, are met:
• The hearsay statement would have been admissible if originally made by the witness during testimony;
• While the statement in question was the actual knowledge of the witness at the time the past recollection was recorded and now may be admissible if all of these requirements are met, it has been established during the witness’s current testimony that the witness does not have present recollection sufficient for the witness to testify completely and truthfully;
• The statement is in writing, or part of the writing, that was made at the time when the facts noted in the written statement actually occurred or were fresh in the witness’/writer’s memory;
• The writing now being offered as a past recollection recorded was actually made by the witness himself, or under his supervision, or by someone else who was recording the statement specifically for the purpose of contemporaneously recording the witness's statement at the time it was originally made;
• The witness now testifies that the statement being offered as past recollection recorded was a true statement of the fact(s) now in question; and
• The written past recollection recorded is authenticated (it’s in the witness’s handwriting, or the witness remembers the person who wrote it down, etc.).
Reviewing the requirements for the admissibility under the past recollection recorded hearsay exception, it is easy to see how this hearsay exception is sometimes confused with the non-hearsay rule of present recollection refreshed. The critical differences are that a witness’s present recollection may be refreshed by essentially anything, written or prepared by essentially anybody, at any time, while the document offered as past recollection recorded must have been prepared contemporaneously by the witness or under his direction, or prepared by someone else known to the witness at the time the statement in question was made. Additionally, while the writing which refreshes present recollection is generally not admissible, the writing which qualifies as part recollection recorded may be read into evidence by the proponent of the statement, but the writing itself is not to be admitted unless offered by an adverse party.
Finally, with both past recollection recorded and present recollection refreshed, the foundational fact that the witness does not have present and independent recollection of the statement or fact in question must be established before attempting to qualify the writing under either of these doctrines.
Perhaps the best example of the use, and admission into evidence of Past Recollection Recorded is a treating doctor’s chart.