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24. Playing the tape recording for the jury would be
At the defendant's trial for theft, a witness, called by the prosecutor, testified to the following: 1) that from his apartment window, he saw thieves across the street break the window of a jewelry store, take jewelry, and leave in a car, 2) that his wife telephoned police and relayed to them the license number of the thieves' car as the witness looked out the window with binoculars and read it to her, and 3) that he has no present memory of the number, but that immediately afterward he listened to a playback of the police tape recording giving the license number (which belongs to the defendant's car) and verified that she had relayed the number accurately.
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Witnesses are permitted to refresh their memories by looking at almost anything—either before or while testifying. However, if a witness's memory cannot be revived, a party may wish to introduce a memorandum that the witness made or adopted at or near the time of the event. Use of the writing to prove the facts contained therein raises a hearsay problem; but if a proper foundation can be laid, the contents of the memorandum may be introduced into evidence under the past recollection recorded exception to the hearsay rule. Fed. R. Evid. 803(5). Normally, the «record» under the past recollected recorded exception will be a writing. However, this is not a formal requirement. If a witness makes a tape recording of the facts known to him, the tape recording is probably admissible under the exception.
Records, reports, statements, or data compilations, in any form, of a public office or agency, are admissible to the extent that they set forth: (i) the activities of the office or agency; (ii) matters observed pursuant to a duty imposed by law (excluding police observations in criminal cases); or (iii) in civil actions and proceedings and against the government in criminal cases, factual findings (including opinions and conclusions) resulting from an investigation made pursuant to authority granted by law. Fed. R. Evid. 803(8).
A is correct. The witness has testified that he now has insufficient recollection to enable him to testify fully and accurately, but that he once had knowledge of the license plate number. The witness has also testified that the tape recording is a record, which he adopted when the matter was fresh in his memory, in which the witness's knowledge of the license plate number is correctly contained. Playing the tape recording into evidence is therefore admissible under the recorded recollection exception to the hearsay rule.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. Although playing the recording is proper, it is not because it is a public record or report. Under FRE 803(8), law enforcement records (including investigative reports) are generally inadmissible against a criminal defendant. As explained above, the recording should be played because it satisfies the recorded recollection exception.
C is incorrect. Even though the recording contains an out-of-court statement offered for the truth of the matter asserted, and is thus considered hearsay, it does fall within an exception — the recorded recollection exception — as stated above.
D is incorrect. The witness did have first-hand knowledge of the license plate number, and he adopted his wife's statement immediately after it was made. The witness's first-hand knowledge, combined with his adoption of his wife's statements into the tape, make the tape recording admissible to be played into evidence as a prior recollection recorded.