44. Is the tape recording admissible as evidence?

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. A qualifying recorded recollection may be read into evidence, but may not be offered as an exhibit unless by the opposing party.

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).

The best evidence rule is more accurately called the «original document rule.» The rule is as follows: In proving the terms of a writing (recording, photograph, or X-ray), where the terms are material, the original writing must be produced. Secondary evidence of the writing, such as oral testimony regarding the writing's contents, is permitted only after it has been shown that the original is unavailable for some reason other than serious misconduct of the proponent. Fed. R. Evid. 1002. If the proponent cannot produce the original writing or recording in court, he may offer secondary evidence of its contents in the form of copies, notes, or oral testimony about the contents of the original if a satisfactory explanation is given for the non-production of the original.

A is correct. This statement meets the requirements of Federal Rule of Evidence (FRE) 803(5), the recorded recollection exception to the hearsay rule. The witness once had knowledge but now has insufficient recollection to testify fully and accurately about her investigation. She made the recording when the matter was fresh in her memory, and she testified that the recording was an accurate reflection of her memory. Note, however, that the tape itself cannot be submitted to the jury, but the contents may be played out loud and entered into evidence as a substitute for oral testimony.

B is incorrect. This answer reaches the correct answer with the wrong reasoning. Although the tape recording is admissible, it is not because the tape itself would qualify as a public record. The officer's formal written report would qualify as a public record, but the informal dictated comments she made to help her prepare the report would not. The tape recording is admissible, however, under the recorded recollection exception to the hearsay rule, as explained above.

C is incorrect. Although the tape recording is hearsay, it fits the hearsay exception of FRE 803(5) as a recorded recollection. It contains only informal comments so it probably does not qualify as a «police report.» Even if it were a police report, there is no prohibition against the admission of a police report in a civil case if it satisfies a hearsay exception.

D is incorrect. The tape recording was made prior to the written report and was used as a basis for the written report. It is not being offered to prove the contents of the written report and hence its admission does not violate FRE 1002. Instead, it is being offered to prove the factual details of the officer's investigation as she remembered them at the end of her shift when she made the tape recording. It is admissible under the recorded recollection exception to the hearsay rule.