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47. May the tape recording be played?
A pedestrian sued a driver for injuries suffered in a hit-and-run accident. At trial, the pedestrian called a witness who testified that he saw the accident and that as the car sped off he accurately dictated the license number into his properly operating pocket dictating machine. The witness has stated that he no longer remembers the number.
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A present sense impression is a statement that describes or explains an event or condition and is made while or immediately after the declarant perceives the event or condition. A present sense impression is admissible as an exception to the hearsay rule. Fed. R. Evid. 803(1).
Witnesses are permitted to refresh their memories by looking at almost anything — either before or while testifying. Sometimes, a party may even 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).
C is correct. First, the recording is admissible as a present sense impression under FRE 803(1) because it describes an event and was made while the witness was perceiving the event or immediately thereafter. But the recording is also admissible under FRE 803(5) because it is a record concerning a matter about which the witness once had knowledge but now has insufficient recollection to testify fully and accurately; it was made by the witness when the matter was fresh in the witness's memory, and the witness has sufficiently established that the record was accurate when made.
A is incorrect. The recording is admissible as a present sense impression, but also as a recorded recollection, for the reasons explained above.
B is incorrect. The recording is admissible as a recorded recollection, but also as a present sense impression, as explained above.
D is incorrect. Although the statement on the recording is hearsay because it is an out-of-court statement offered for its truth, it is nevertheless admissible on two grounds: a present sense impression under FRE 803(1) and a recorded recollection under FRE 803(5).