EvidenceProf Blog

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

Saturday, October 5, 2019

How Long is Too Long?: Fifth Circuit Finds Phone Call 5 Months After Slip-and-Fall Was Not a Recorded Recollection

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

So, how much time can pass before a matter is no longer fresh in a witness's memory? That was the question addressed by the Eleventh Circuit in its recent opinion in Garrison v. Sam's East, Inc., 2019 WL 4785526 (11th Cir. 2019).

In Garrison,

After purchasing a fountain drink from the Sam’s Club cafe, [Angela] Garrison fell as she turned away from the counter. After the fall, she felt wet and observed liquid on the floor that extended underneath the counter. She also saw a mop behind the counter. Walmart employees cleaned up the area using cones, paper towels, and the mop. Five months after the fall, Garrison sent Sam’s a letter demanding that it preserve all video evidence of the incident. Unfortunately, the video system retains footage for only three months, and as a result some (but not all) of the pertinent video had already been overwritten. Ultimately, neither the remaining surveillance video nor any witness has been able to identify the source of the liquid or how long it had been on the floor. Nor could anyone describe the nature or size of the spill.

In opposing a motion for summary judgment, Garrison sought into evidence a recorded telephone call that she had with a claims adjustor five months after the slip-and-fall. The district court, however, deemed this evidence inadmissible, and the Eleventh Circuit agreed, concluding that

A recorded recollection must be “made or adopted by the witness when the matter was fresh in the witness’s memory.” Fed. R. Evid. 803(5)(B). The recording here was made five months after the incident. It was not “manifestly erroneous” for the district court to determine that the recording should not be admitted, and so we affirm its exclusion.

This is not, however, to say that all courts would rule the same way. As the Sixth Circuit noted in United States v. Smith, 197 F.3d 225 (6th Cir. 1999):

the Advisory Committee's notes to FRE 803(5) state that “[n]o attempt is made in the exception to spell out the method of establishing the initial knowledge or the contemporaneity and accuracy of the record, leaving them to be dealt with as the circumstances of the particular case might indicate.”...Some courts have found periods from ten months to three years to be “fresh,” while others have ruled that alcohol or drugs might undermine the freshness of a record made only a few days after the event.



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I imagine it would be extremely difficult to identify a specific time frame for what is considered "fresh." There are just too many factors to consider within the individual witness testimony, who may already have potentially inaccurate information to begin with, considering how memories are formed in the first place, and change over a period of time.

Posted by: Amanda GD | Oct 6, 2019 7:45:01 AM

Amanda GD: Yes, it seems that one size fits all would be tough. That said, I have a tough time seeing how statements made 2-3 years after an event should qualify for admission under the Rule.

Posted by: Colin Miller | Oct 10, 2019 5:42:37 PM

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