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Editor: Colin Miller
Univ. of South Carolina School of Law

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Saturday, April 2, 2011

Is This Being Recorded?: Considering the Differences Between Federal & New Jersey Recorded Recollections Rules

Federal Rule of Evidence 803(5) provides an exception to the rule against hearsay for 

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' 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.

Meanwhile, New Jersey Rule of Evidence 803(c)(5) provides a similar exception to the rule against hearsay for

A statement concerning a matter about which the witness is unable to testify fully and accurately because of insufficient present recollection if the statement is contained in a writing or other record which (A) was made at a time when the fact recorded actually occurred or was fresh in the memory of the witness, and (B) was made by the witness himself or under the witness' direction or by some other person for the purpose of recording the statement at the time it was made, and (C) the statement concerns a matter of which the witness had knowledge when it was made, unless the circumstances indicate that the statement is not trustworthy; provided that when the witness does not remember part or all of the contents of a writing, the portion the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection.

So, what is the difference between these two rules?

This answer is partially addressed by the recent opinion of the Supreme Court of New Jersey in State v. Gore, 2011 WL 977601 (N.J. 2011). I'm not going to address the facts of Gore, which ends up addressing some pretty odd issues, but here's the key point: Under Federal Rule of Evidence 803(5), a recorded recollection can be read by the witness "but may not itself be received as an exhibit unless offered by an adverse party." In other words, let's say that Dan is charged with assault based upon a fight with Vince. And, let's say that Ed is an eyewitness to that fight and makes a statement to police that Dan threw the first punch but that it looked like Vince was reaching for a weapon before Dan attacked. At trial, if Ed has insufficient recollection to testify concerning the assault. The prosecution could have Ed read the recorded recollection to the jury if the requirements of Federal Rule of Evidence 803(5) were satisfied, but the prosecution could not admit the statement as an exhibit. And, if the prosecution did admit the statement as an exhibit without an objection from defense counsel, the admission of the statement would still be error, with an appellate court potentially reversing for plain error. Conversely, the defendant, as the adverse party, could introduce the statement as an exhibit (to support a claim of self-defense based upon Vince possibly reaching for a weapon).

Now, let's say that the same trial took place in New Jersey. Under New Jersey Rule of Evidence 803(c)(5), the portion of the recorded recollection that "the witness does not remember may be read into evidence but shall not be introduced as an exhibit over objection." In other words, neither the prosecution nor the defendant could admit the recorded recollection as an exhibit. Or, to be more specific, neither party could introduce the recorded recollection as an exhibit over objection. So, what exactly does this mean? It seems to me that this means that if opposing party does not object to the admission of the recorded recollection as an exhibit, its admission would not even be error. Therefore, an appellate court could not even reverse for plain error because there simply would be no error.

At least, I think that is what a New Jersey court would hold. There are only a few cases applying New Jersey Rule of Evidence 803(c)(5), and none of them address this precise issue. Moreover, I've never seem another rule like Rule 803(c)(5) that requires an objection to render evidence inadmissible.

-CM 

http://lawprofessors.typepad.com/evidenceprof/2011/04/recorded-recollection-state-v-gore-a3d-2011-wl-977601nj2011.html

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