Past Recollection Recorded vs. Refreshing Recollection

MBE Substantive Law FAQ Series: Past Recollection Recorded vs. Refreshing Recollection

We receive a lot of questions from our course students asking us to explain tricky areas of substantive law in more detail.  Some topics, however, turn up in questions far more frequently than others.  The goal of our MBE Substantive Law FAQ Series is to address areas of law tested on the bar exam that are often conflated or not properly understood.  We hope to explain them in a way that will help you process the concept and correctly answer questions if the issue turns up on the MBE!  In this post, we focus on a tricky area of evidence: distinguishing when to use past recollection recorded vs. refreshing recollection!

MBE Substantive Law FAQ Series: Past Recollection Recorded vs. Refreshing Recollection

A significant problem many trial attorneys run into is what to do when a witness can’t remember their testimony.  The MBE might also present you with a fact pattern where a witness is having memory problems.  When a witness has an insufficient recollection of the events or evidence he is supposed to testify to, the refreshing recollection rule allows the witness to be shown a writing to jog his memory.  If this causes the witness to remember, he will then give his testimony based on his memory.  He will not read from the document, and the document does not get entered into evidence unless the other party requests for it to be admitted (the other party gets the right to inspect).

Refreshing Recollection

This comes up when the witness is on the stand and the lawyer asks the witness: “do you remember XYZ event?”

The witness says “no.”

The lawyer asks, “does this document jog your memory?”

The witness says “oh yeah!”

Then the witness testifies based on his memory.

When you are dealing with a mere refreshing recollection situation, there is no hearsay problem since the witness ends up testifying from memory.  The document itself (which would be hearsay since it is an out of court statement) is not serving as the testimony.  Rather, it is still the witness’s personal knowledge that serves as the foundation for the testimony.  Accordingly, if you see a situation on the MBE where the document successfully jogs the witness’s memory, a challenge to the use of this document for this purpose alone isn’t going to require a hearsay explanation.

Past Recorded Recollection

This comes up when the witness is on the stand and the lawyer asks the witness: “do you remember XYZ event?”

The witness says “no.”

The lawyer asks, “does this document jog your memory?”

The witness says “no.”

Then the lawyer asks the witness to read from the document or record.

 Since now the statements in the document are becoming the testimony, we do have a hearsay problem.  The document can be read into evidence if:

• (a) the witness has an insufficient recollection; showing the writing to the witness fails to jog his memory;
• (b) the witness had personal knowledge at a former time;
• (c) the writing was either made by the witness or adopted by the witness;
• (d) the making or adoption occurred while the event was fresh in the witness’s memory; and,
• (e) the witness can vouch for accuracy of writing when made or adopted.

Remember, the past recollection recorded exception does NOT allow the proponent to offer the document as an exhibit.  It is merely read into evidence.  This sort of distinction might be the only thing that differentiates between two answer choices on the MBE.  Thus, if you encounter a question where the witness is still having memory issues after a review of the document, be sure to read both the facts and the answer choices carefully.  You are now in past recollection recorded territory, meaning hearsay language in the answer choices will be relevant, and you must be aware of the consequences of using this exception.  The only way to get the document itself into evidence would be for the adverse party to offer it.  The proponent can only read it!

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