Should the Recorded Recollection Exception be Moved to Federal Rule of Evidence 801(d)(1)?

Federal Rule of Evidence 803(5) provides a hearsay exception for

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.

Because of its placement in Federal Rule of Evidence 803, this "recorded recollection" exception "applies regardless of whether the declarant is available as a witness...." My argument in today's blog post is that Federal Rule of Evidence 803(5) would fit better under Federal Rule of Evidence 801(d)(1) and that its current residence in Federal Rule of Evidence 803 is a historical relic that no longer makes any sense.

Three statements are defined as nonhearsay under Federal Rule of Evidence 801(d)(1) when "[t]he declarant testifies and is subject to cross-examination about a prior statement": prior inconsistent statements (made under oath), prior consistent statements, and prior statements of identification. Meanwhile, there are five hearsay exceptions that apply under Federal Rule of Evidence 804 when the declarant is "unavailable" to testify at trial: former testimony, dying declarations, statements against interest, statements of personal or family history, and statements offered against a party that wrongfully caused the declarant's unavailability. Meanwhile, Federal Rule of Evidence 804(a)(3) defines a declarant as "unavailable" if he "testifies to not remembering the subject matter...."

When the recorded recollection exception was proposed, there were three options regarding its placement: It could be part of Federal Rule of Evidence 803, Federal Rule of Evidence 801(d)(1), or Federal Rule of Evidence 804. As explained by the Advisory Committee's Note to Federal Rule of Evidence 803,

Locating the exception at this place in the scheme of the rules is a matter of choice. There were two other possibilities. The first was to regard the statement as one of the group of prior statements of a testifying witness which are excluded entirely from the category of hearsay by Rule 801(d)(1). That category, however, requires that declarant be "subject to cross-examination," as to which the impaired memory aspect of the exception raises doubts. The other possibility was to include the exception among those covered by Rule 804. Since unavailability is required by that rule and lack of memory is listed as a species of unavailability by the definition of the term in Rule 804(a)(3), that treatment at first impression would seem appropriate. The fact is, however, that the unavailability requirement of the exception is of a limited and peculiar nature. Accordingly, the exception is located at this point rather than in the context of a rule where unavailability is conceived of more broadly.

At the time, this decision made sense, but, after the Supreme Court's opinion in United States v. Owens, 484 U.S. 554 (1988). In Owens, a correctional counselor was hit with a metal pipe on the head, identified the defendant as the perpetrator of the attack, and then could not remember most of the details of the attack at trial, in large part due to being struck by the pipe. At trial, the prosecution introduced the counselor's prior statement of identification pursuant to Federal Rule of Evidence 801(d)(1)(C). 

After he was convicted, the defendant appealed, claiming that the counselor was not "subject to cross-examination" as required by Federal Rule of Evidence 801(d)(1) because he was "unavailable" as defined in Federal Rule of Evidence 804(a)(3) due to memory loss. The Supreme Court disagreed, finding that all that is required to satisfy Rule 801(d)(1)'s "subject to cross-examination" requirement is a live body on the witness stand and that Federal Rule of Evidence 804(a)(3) does no compel a different result.

Therefore, the problem raised in the Advisory Committee's Note no longer exists. Federal Rule of Evidence 801(d)(1)'s requirement that declarant be "subject to cross-examination" no longer raises doubts about the "recorded recollection rule" being a hearsay exclusion under the Rule, so that's where it should be relocated. Why?

Well, Federal Rule of Evidence 803(5)'s placement in Federal Rule of Evidence 803 is just plain odd. Under Federal Rule of Evidence 803, it is not supposed to matter whether a declarant is available or unavailable, but it would seem to me that every Rule 803(5) declarant has to fall on one side of the line or the other. As the Advisory Committee noted, Rule 803(5) declarants might be viewed as "unavailable" under Federal Rule of Evidence 804(a)(3), but that unavailability is of a limited and peculiar nature. A Rule 803(5) declarant must have enough memory of an event to be able to vouch for the credibility of his recorded recollection but not enough memory to testify "fully an accurately."

It thus seems to me that placing Federal Rule of Evidence 803(5) in Federal Rule of Evidence 803 was an attempt to split the difference. Because it was unclear whether a Rule 803(5) declarant is available or unavailable, the Rule was placed under Federal Rule of Evidence 803, where availability isn't supposed to matter. It is my contention that this placement is confusing and that after the opinion in Owens, there is every reason to move the Rule to Federal Rule of Evidence 801(d)(1).

-CM