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45. Should the court permit this use of the report?
At trial in a civil case arising out of a car accident, the plaintiff has called the investigating police officer to testify regarding a statement that the officer overheard the defendant make at the scene admitting that he had failed to see the stop sign. However, while on the stand, the officer is unable to recall the exact words that the defendant used. The plaintiff proposes to refresh the officer's recollection with a police report written by a fellow officer who was also at the scene and wrote down the defendant's statement. The defendant has objected to the use of this report to refresh the testifying officer's memory.
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A hearsay exception exists for records of a public office or agency under certain circumstances. Fed. R. Evid. 803(8).
D is correct. Federal Rule of Evidence (FRE) 612 allows the police officer testifying to refresh his recollection using the report prepared by the other officer because his memory is exhausted, and courts allow nearly anything to be used to refresh a witness's recollection. The report does not need to have been prepared by the testifying officer or otherwise satisfy admissibility requirements. The report will not be read into evidence, but merely reviewed by the officer to aid him in refreshing his own memory of the defendant's confession.
A is incorrect. When properly applied, the present recollection refreshed rule does not raise a hearsay problem because the item itself is not being admitted. Rather, the witness's refreshed testimony is the only evidence being offered, so there is no out-of-court declaration.
B is incorrect. As explained above, a document being used to refresh a witness's recollection under FRE 612 does not need to satisfy admissibility requirements, which means it is irrelevant that the witness did not write or adopt the report as his own.
C is incorrect. This answer reaches the correct answer with the wrong reasoning. It properly states that the court should permit the report to be used, however, it is not because of the public record hearsay exception. Again, no hearsay analysis is necessary here because the report itself is not being admitted. It is the officer's refreshed testimony that is being offered, so no out-of-court statement is at issue.