What’s the Second Best Way to Admit Anything?
Every trial has evidence and even complex trials often turn on a handful of key exhibits. Maybe it’s a smoking-gun email – or more frequently nowadays, a smoking gun text message. Maybe it’s a financial record or market analysis that conclusively establishes damage. No matter what the key evidence is, both sides know that winning the case will get noticeably easier (or harder!) if the exhibit comes into evidence at trial.
If that exhibit is yours, you’ve probably got a Plan A for getting it into evidence. As we’ve written before, there are a number of approaches for admitting documents even if your first idea (say, as a business record) gets rejected by the court. But let’s assume that Plan A fails. And even if you’ve got a Plan B (“judge, it’s not for the truth of the matter asserted!”) let’s assume that that fails too. Then you need a real backup – a high percentage fallback plan that’s extremely likely to work at least a little even if it doesn’t get you everything that you want.
If you’re in the market for that, you should consider past recollection recorded, the second-best way to get almost anything into evidence.
Past recollection recorded is an exception to the hearsay rule in most jurisdictions. In the federal system it appears at Fed. R. Evid. 803(5):
The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness:
(5) Recorded Recollection. A record that:
(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;
(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and
(C) accurately reflects the witness’s knowledge.
If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
Why isn’t this just hearsay? The committee notes are noticeably breezy about the justification and instead declare that “[a] hearsay exception for recorded recollection is generally recognized and has been described as having “long been favored by the federal and practically all the state courts that have had occasion to decide the question.” [1] To borrow from Judge Posner, such justifications are “less than reassuring,” as they “rest[] on no firmer ground than judicial habit, in turn reflecting judicial incuriosity and reluctance to reconsider ancient dogmas.” [2]
After all, consider what this means in practice. A non-party witness writes an email. You put him on the stand and have him authenticate the document. You then seek to introduce the email into evidence. Nope, sorry, the email is hearsay, and the jury couldn’t possibly rely upon it. Ah, but what if the witness doesn’t remember what he was writing about? Oh, in that case, sure, read the email to the jury. After all, the jury can’t rely on an email that the witness clearly remembers, but can rely on an email that the witness doesn’t remember anything about. That’s perfectly reasonable!
Note also how this differs from refreshing a witness’s recollection with a document. The rules allow you to show a witness an otherwise inadmissible document to try to jog their memory. But doing so doesn’t allow you to show the inadmissible document to the jury or read its contents aloud. But if you use the past recollection refreshed rule, you can have the witness read the document line-by-line to the jury in its entirety. Every word can come into evidence.
Why is this a high percentage technique for getting information into evidence at trial? Because most of what the rule requires you to establish is basically always true.
First, you’ve got to show that the witness has forgotten something about the topic. You don’t have to show that they have total amnesia, just that they “cannot recall well enough to testify fully.” The word “fully” is key here. As any litigator will tell you, this is true of essentially every witness. Even witnesses with near perfect memory are never going to “fully” remember the details about what happened in a case, particularly as lawsuits often take years to reach trial.
Second, you’ve got to show that the document was “made or adopted” by the witness when the matter was “fresh” in their mind. How fresh? There is no brightline rule, but the document does not have to have been prepared contemporaneously and in some cases, documents have been admitted that were generated long after the events they described. [3] And the witness does not even need to be the author of the document, just someone who “adopted” the record as accurate.
Third, you’ve got to show that the record accurately reflects what the witness knew at the time. But again, this is fairly routine when the witness either wrote it or “adopted it.” Unless the witness claims to have a habit of lying in writing, you’re probably good.
If this works so well, why is a past recollection recorded only the second-best way to admit everything? Why not Plan A? Because of the final restriction in the rule. You can read the document into the record, but the physical document cannot be given to the jury unless it was prepared by an adversary (in which case you should probably have admitted it as a party admission anyway).
If “read it into evidence but don’t show them the original” seems weird to you, that’s normal. You can try to reason through why the rule works this way – the document is arguably substituting for better informed testimony in the past and jurors aren’t usually given transcripts of testimony. But the more you think about the restriction the less sense it makes. Other hearsay exceptions are also testimonial substitutes and aren’t subject to any such limitation. And as we’ve written before, the restrictions on giving jurors transcripts are not themselves a model of reasoned thinking. So, to spare yourself frustration, it’s best to just accept that the rule is strange and focus on how to best use it.
What are some good uses of a past recollection recorded? Let’s start with email. If the other side wrote an email, you’re probably getting it into evidence as an admission. But if the best email in the case was written by your client, you’re probably going to try to get it in as a business record. Often that works, but if a judge isn’t buying it, it’s an easy pivot to past recollection record so long as your client gives normal truthful answers to only-slightly-leading questions.
How? Ask the witness if they knew something about the topic they wrote about in the email. Most folks are not going to admit to firing off totally ignorant messages, so you’re going to get a yes. Then ask if they remember absolutely positively everything they knew about the topic at the time that they wrote the email. Assuming your witness is honest and/or can take a hint, they’re going to admit that they don’t remember everything. Then ask if they can testify 100% as “fully” about the topic as they could if questioned when they wrote the message. Obviously not, and you’ve laid the necessary foundation. You may have to be slightly less explicit depending on the court’s tolerance for leading questions, but you aren’t suggesting anything that isn’t unambiguously true.
What else can you get in with a past recollection recorded? Deposition testimony. Let’s say a friendly witness forgets a key detail in their trial testimony. It happens all the time, particularly if your witness is nervous. If they were an adverse witness, you could impeach them with their deposition testimony, but that’s not going to work with your own witness. But a deposition transcript is the very definition of a past recollection recorded. So, ask the witness if they remember everything they knew when they were deposed. Then ask if the deposition testimony accurately reflects the knowledge they had at the time. Again, even the dullest witness will get the point and provide the answers you need to lay the proper foundation.
Trial rewards planning and you always hope that things go as you expect. But one of the best forms of planning is having ready alternatives when your initial plans fail. In that vein, facility with the rules concerning past recollection recorded can keep you in the game when an unexpected evidentiary ruling threatens to disrupt your vision of the case.
[1] Advisory Committee Notes, Fed. R. Evid. 803.
[2] United States v. Boyce, 742 F.3d 792, 802 (7th Cir. 2014) (Posner, J, concurring). As we’ve written before, Judge Posner would eliminate most of the “ancient” hearsay exceptions and replace them with a test that focuses on the reliability of the evidence rather than weird folk magic.
[3] United States v. Smith, 197 F.3d 225, 231 (6th Cir. 1999) (“Some courts have found periods from ten months to three years to be ‘fresh’”).
