|
If the victim testifies, but is evasive,
or claims not to remember what happened,
then the prosecution may attempt to introduce
the witness's past recorded recollection (Rule 11-803(E)).
Definition
Rule 11-803(E): The following are not
excluded by the hearsay rule, even though the declarant is available
as a witness: Recorded recollection. A memorandum or record
concerning a matter about which a witness once had knowledge but
now has insufficient recollection to enable him 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.
Foundation
To use the "recorded recollection" exception to the hearsay
rule, a party must show that:
• the testifying witness cannot now remember evidence relating to
a relevant incident;
• the witness wrote something at the time of the incident while
it was fresh in her mind; and
• the writing was an accurate description of the event.
Admissibility
The written record of the witness' past recollection may be read
into evidence by the witness if the proper foundation is laid. The
content of the document as read aloud becomes evidence, but the
document itself may not be introduced as an exhibit unless the adverse
party offers it.
Example
The alleged victim was taken to the police station by the police
immediately after they responded to a domestic disturbance. The
officer asked the victim at the police station to write down everything
she remembered about the incident, and the victim did so. Upon the
prosecutor's questioning, the victim or another witness identifies
the statement and lays the foundation for it. The witness may read
the statement into evidence.
|
