Question: What is a “recorded recollection” and how does it relate to the hearsay rule?
Answer: This rule allows a witness to refresh their recollection from a writing and potentially put that writing into evidence, when certain standards are meet.
In making its decision to admit this evidence, the trial court also relied on Indiana Evidence Rule 803(5), which provides: 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.
The Indiana courts follow a three-tiered approach to determine the use of recorded recollections: (1) the unaided testimony of a witness is preferred; (2) if the unaided testimony is not available, the law prefers refreshed recollection; and (3) if the witness’s recollection cannot be revived, “the recorded recollection exception to hearsay Rule 803(5) may be available to admit the document which contains the witness’s prior knowledge of the facts in question.”