In general
• 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.
• This exception allows admission of a recorded statement if:
(a) the memorandum or record relates to a matter about which a witness once had knowledge,
(b) the witness has insufficient recollection at trial to enable the witness to testify fully and accurately,
(c) the witness is shown to have made or adopted the memorandum or record,
(d) the memorandum or record was adopted when the matter was fresh in the witness's memory, and
(e) the memorandum or record is shown to reflect the witness's knowledge correctly.
Horton v. State, 936 N.E.2d 1277, 1282 (Ind. Ct. App. 2010), trans. granted, opinion vacated for new sentencing only (June 28, 2011), vacated, 949 N.E.2d 346 (Ind. 2011)
• The Rules of Evidence provide for a three-tiered approach:
(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 the hearsay rule may be available to admit the document which contains the witness's prior knowledge of the facts in question.”
Smith v. State, 719 N.E.2d 1289, 1290-91 (Ind. Ct. App. 1999)
Foundation (Section “a” of rule – witness once knew but now cannot recall)
• Under the new rule, a "witness need not be shown to be completely without present memory; he need only be shown to have ‘insufficient recollection to enable the witness to testify fully and accurately.’”
Smith v. State, 719 N.E.2d 1289, 1291 (Ind. Ct. App. 1999)
• The recorded recollection exception applies when a witness has insufficient memory of the event recorded, but the witness must be able to "vouch for the accuracy of the prior [statement]."
Kubsch v. State, 866 N.E.2d 726, 734 (Ind. 2007), reh’g denied, cert. denied, 553 U.S. 1067 (2008)
Examples
• If the past statement is in the form of a recording, the recording may be played for the jury:
A redacted tape of the statement was played for the jury. As Evid. R. 803(5) provides that a memorandum or record of the recollection may be read to the jury, there can hardly be error where the jury is allowed to hear the witness herself as recorded when she gave the information she now fails to recall. There is no indication in the record that either the written transcript of the statement or the tape of the statement were ever given to the jury. In fact, the record reveals that the trial court specifically denied the state's request to provide the jury with the transcript of the statement. There is no basic violation of basic principles here.
Flynn v. State, 702 N.E.2d 741, 746 (Ind. Ct. App. 1998), reh’g denied, trans. denied
• State Trooper’s PC constituted a past recollection recorded: “Here, the probable cause affidavit was admissible under an existing exception to the hearsay rule, past recollection recorded.”
Baran v. State, 639 N.E.2d 642, 645 (Ind. 1994)
• State failed to lay a proper foundation because witness did not vouch for the recording’s accuracy: “Here, the State failed to show that the recorded recollection correctly reflected Hatchett's knowledge. Hatchett did not vouch for the accuracy of the statement to Detective Wright—a statement that she did not remember making. Accordingly, the excerpts from the transcribed statement should not have been admitted under Evid. R. 803(5).”