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48. Should the witness's notes be admitted?
Several defendants, senior executives of a corporation, were charged with securities fraud. The government called as a witness another executive of the corporation, who had not been charged and who had been given immunity from prosecution, to authenticate handwritten notes that she had made after meetings of the corporation's management team at which the alleged fraud was discussed. The witness testified that she had prepared the notes on her own initiative to help her remember what had happened at the meetings. After this testimony, the government offered the notes into evidence to establish what had happened at the meetings.
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Any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event is admissible in evidence as proof of that act, transaction, occurrence, or event, if made in the regular course of any business; and if it was the regular course of such business to make it at the time of the act, transaction, occurrence, or event or within a reasonable time thereafter. Fed. R. Evid. 803(6).
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).
A is correct. The notes are hearsay because they were made out-of-court and they are being offered into evidence for the truth of the matter asserted: what happened at the meetings. The notes also do not fall within any applicable exception to the hearsay rule. They are not business records under FRE 803(6) because the witness did not make the notes during the regular course of business. She made them to specifically help her remember what happened at the meetings. The notes do also not qualify as a past recollection recorded under FRE 803(5) because the proper foundation has not been laid. First, the witness has not testified that she has insufficient recollection to testify fully and accurately without the notes, nor has she testified that the notes are an accurate reflection of her knowledge when the matter was fresh in her memory. Moreover, even if the hearsay exception were satisfied, the notes themselves are not admissible. Under FRE 803(5), a record of recorded recollection «may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.» Therefore, no hearsay exception applies and the notes are inadmissible.
B is incorrect. This answer reaches the correct answer with the wrong reasoning. The witness's grant of immunity was given to her after the notes were made and therefore could not affect the reliability of the notes. Moreover, with the threat of prosecution removed, a witness is arguably more trustworthy. The notes are inadmissible because they are hearsay not within any exception.
C is incorrect. The notes do not qualify as business records because they were prepared on the witness's own initiative to help her remember what had happened at the meetings. The business records exception to the hearsay rule requires that it be a regular practice of a business (not simply an individual employee) to make such records and that the records are kept in the course of regularly conducted business activity.
D is incorrect. As explained above, the notes do not qualify as a past recollection recorded because there has been no foundation laid to establish that: (i) the witness's memory is in question; or (ii) they are an accurate reflection of her knowledge when it was fresh in her mind. The notes are also inadmissible because under the Rule, a recorded recollection may be read into evidence but cannot be an exhibit unless it is being offered by an adverse party.