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40. Is the information admissible?
A plaintiff sued an industrial facility in her neighborhood for injuries to her health caused by air pollution. At trial, the plaintiff was asked questions on direct examination about the days on which she had observed large amounts of dust in the air and how long the condition had lasted. She testified that she could not remember the specific times, but that she maintained a diary in which she had accurately recorded this information on a daily basis. When her attorney sought to refresh her recollection with her diary, she still could not remember. The plaintiff's attorney seeks to have the information in the diary admitted at trial.
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When a witness on the stand has trouble remembering an event, he may be given a writing, a picture, or some other document to aid his recollection. Nearly all courts permit any item to be shown to the witness while on the stand to refresh his recollection. The rules requiring authentication do not apply to the item being used to refresh the witness's recollection. The item does not need to even be admissible. Fed. R. Evid. 612. 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. However, 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).
D is correct. Under FRE 803(5), an out-of-court statement may be admissible as a recorded recollection exception to the hearsay rule when the witness: (i) made a record; (ii) based on firsthand knowledge; (iii) when the matter was fresh in the witness's memory which accurately reflected the witness's knowledge; and (iv) the witness has insufficient recollection at trial. A qualifying recorded recollection may be read into evidence, but may not be offered as an exhibit unless by the opposing party. In this case, the information in the plaintiff's diary meets all the elements of recorded recollection. Therefore, the diary may be read into evidence as a past recollection recorded.
A is incorrect. The applicable exception here is past recollection recorded, which is in contrast to refreshing a witness's recollection. Under FRE 612, any item may be used to refresh a witness's recollection to enable the witness to then testify from her own memory. However, when a witness's recollection cannot be refreshed, as is the case here, the past recollection recorded exception may render the evidence fully admissible.
B is incorrect. The information contained in the diary meets the requirements for a recorded recollection, and so it may be read into evidence, even though offered by the plaintiff. The diary may only be presented as an exhibit if offered by the defendant.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. A qualifying recorded recollection may be read into evidence, but may not be offered as an exhibit unless offered by the adverse party. In this case, the information in the plaintiff's diary meets all the elements of recorded recollection. Therefore, the diary may only be read into evidence because it was offered by the plaintiff.