1. Rule 803: The following [is] not excluded by the hearsay rule, even though the declarant is available... (5) A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness's memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence, but may not itself be received as an exhibit unless offered by an adverse party.
2. Counsel’s Objective. To place into evidence contents of a writing as a substitute for the dimmed memory of a witness. When a witness cannot recall a fact even after an attempt to revive her recollection (see Rule 612), use this rule when the witness made a contemporaneous record of the matter she cannot now recall on the stand.
3. Key Points.
a. Why it’s hearsay. You are offering an out-of-court statement (the contents of the contemporaneous writing) as evidence for the truth of its contents.
b. Why it’s admissible. It carries circumstantial guarantees of trustworthiness because it was made or adopted at the time of or shortly after the incident (so the witness’s memory was freshest, usually had less opportunity to contemplate later litigation) and the author or adoptee is on the stand.
c. You’ll need to establish:
(1) That your witness “once had knowledge” of the matter at issue.
(2) That she cannot now “testify fully and accurately” from memory. She need not have lost total memory, she just has to be unable to recall totally.
(3) She made or adopted the writing “when the matter was fresh in the witness’s memory.”
(4) That writing “reflect[s] that knowledge accurately” (sometimes called the “vouching” provision).
d. As the proponent, follow these steps:
(1) Have the witness try to testify from her present memory. Ask the question you want answered.
(2) Try to refresh her memory according to Rule 612. Ask whether there is something that might refresh her memory.
(3) Give the witness that document, let her read it and then withdraw that document.
(4) When the witness still cannot testify from her memory, ask the witness whether the writing already marked was made at or near the time of the incident. Ask her whether it was accurate when it was made. Ask the court for permission to have the witness read from the marked document as her past recollection recorded.
(5) Have the witness read the information into evidence.
e. When you are the opposing party, be aware:
(1) That the proponent can NOT introduce the document into evidence. Though the witness may read from the document, the evidence is testimonial -- the oral statement of the witness -- not documentary. Oppose any effort to introduce the document into evidence because it would give it undue weight, and give your opposition the chance to have written evidence on the record as a substitute for what should be oral testimony.
(2) The adverse party (the one not offering the testimony) may introduce the document into evidence. Therefore, inspect the document and, if having the entire document into evidence would help your case, use your right under the rule to move it into evidence. Rules 612 and 803(5).
(3) Cross-examine with the same skepticism you apply to other evidence. The document need not be formal -- it can be a scrap of paper on which the witness scribbled a license plate number -- but you can raise skepticism about its authenticity, depending on the witness’s veracity.