708.6Recorded Recollection [Rule 803(5)]

The Basic Rule

Rule 803(5) – Recorded Recollection

G.S. 8C-803(5).

Requirements for Admissibility

This hearsay exception has three foundational requirements: “Rule 803(5) allows a memorandum or record of an event to be read into evidence where (1) the witness once had knowledge about the matters he recorded, (2) the witness now has insufficient recollection to enable him to testify fully and accurately about those matters, and (3) the record was made or adopted by the witness at a time when the matters were fresh in his memory and reflected his knowledge correctly.” State v. Brown, 258 N.C. App. 58 (2018); State v. Spinks, 136 N.C. App. 153 (1999).

If the foundational requirements are satisfied, the memorandum or record may be read into evidence or played for the jury, but the recorded recollection itself may not be received as an exhibit unless it is being offered by the adverse party. G.S. 8C-803(5). This limitation is intended to “prevent a jury from giving too much weight to a written statement that cannot be effectively cross-examined.” G.S. 8C-803(5), Official Commentary; State v. Spinks, 136 N.C. App. 153 (1999).

The three foundational requirements for this exception are discussed in more detail below.

Witness Once Had Knowledge

First, the memorandum or record must relate to a matter about which the witness once had knowledge, such as an event that the witness observed or personally experienced. G.S. 8C-803(5). See, e.g., State v. Love, 156 N.C. App. 309 (2003) (victim’s statement about threats and assault committed by her husband reflected matters about which she once had knowledge); State v. Nickerson, 320 N.C. 603 (1987) (witness once had knowledge of shooting that he witnessed, as reflected in his police interview).

Insufficient Recollection to Testify

Second, the witness must now have insufficient recollection about that matter to allow him or her to “fully and accurately” testify about it, which is usually established by the witness’s own testimony that he or she is no longer able to recall the matter. See, e.g., State v. Harris, 253 N.C. App. 322 (2017) (foundation laid to admit statement as recorded recollection where witness testified: “I really don't know. That was a year ago. You can't expect me to recall that.”); State v. Love, 156 N.C. App. 309 (2003) (finding that witness “no longer had sufficient recollection as to the matter” to testify about it).

Conversely, if there is no showing that the witness has insufficient recollection of the matter, or if the witness testifies that he or she does remember the matter but just remembers it differently than the way it is stated in the memorandum or record, the recorded recollection exception does not apply. See, e.g., State v. Foster, 236 N.C. App. 607 (2014) (where victim testified that she accurately remembered what her level of intoxication was on night of assault, medical report documenting her level of intoxication was not admissible under this exception); State v. Cummings, 361 N.C. 438 (2007) (affidavit was not admissible under this exception when witness had sufficient memory of events at issue to testify fully and accurately); State v. Alston, 161 N.C. App. 367 (2003) (no showing made that witness had insufficient recollection).

Fresh and Accurate Recollection of the Witness

The third foundational requirement contains several interrelated components.

i) “The record…”

Obviously there must actually be some kind of memorandum or record to read or play for the jury, such as a written statement, an interview report, a transcript, or a recording. See, e.g., State v. Harris, 253 N.C. App. 322 (2017) (“the trial court did not err in allowing the video of this interview to be played for the jury during Gibbes' testimony as ‘past recollection recorded’ substantive evidence”); State v. Wilson, 197 N.C. App. 154 (2009) (“We agree and hold that an audio recording can be admissible as a ‘record’ under Rule 803(5),” but excluding it on other grounds in this case); see also State v. Alston, 161 N.C. App. 367 (2003) (memorandum at issue was officer’s synopsis of defendant’s statement in a homicide case, which was excluded on other grounds).

ii) “…was made or adopted by the witness…”

The memorandum or record must be one that the witness “made” (e.g., a statement written out by the witness, or a recording of the witness's own words) or “adopted” (e.g., by reviewing and agreeing with an officer’s written summary). See, e.g., State v. Brown, 258 N.C. App. 58 (2018) (foundation laid where witness testified that he recognized the statement, which was in his own handwriting and signed by him, and it did not appear to be changed or manipulated); State v. Love, 156 N.C. App. 309 (2003) (“Ms. Love was given an opportunity to edit the statement, but […] Ms. Love declined to edit the statement—thereby adopting it”); State v. Legett, 135 N.C. App. 168 (1999) (two statements properly admitted; one was in witness’s own handwriting and signed by him, the other was given to a detective and the witness reviewed and corrected it, “thereby adopting it”).

If the witness did not make the statement him- or herself, and the witness never adopted the memorandum or record (or denies its contents or accuracy), it is not admissible as a recorded recollection. See, e.g., State v. Spinks, 136 N.C. App. 153 (1999) (insufficient foundation to admit recorded recollection where witness testified that she signed the statement without ever reading it); State v. Hollingsworth, 78 N.C. App. 578 (1985) (letter should not have been allowed as recorded recollection where witness recanted its contents, testified that she had only written down what another person told her to write, and said that she had no memory of the events when she wrote the letter).

iii)  “…when the matters were fresh in his memory…”

The memorandum or record must have been made at a time when the witness still had a good recollection of the matter being recorded. See G.S. 8C-803(5). There is no bright-line rule for how much time is allowed to pass between the event and the creation of the memorandum or record; instead, the relevant inquiry is simply whether the memory was still “fresh” at that time. See, e.g., State v. Brown, 258 N.C. App. 58 (2018) (“the court found that on 17 December 2013, when the matters were still fresh in their memories, the witnesses wrote down what defendant told them on 16 December 2013”); State v. Love, 156 N.C. App. 309 (2003) (witness testified at trial that she made her statement to the police “when the events of the night were ‘fresh in her mind’”); State v. Nickerson, 320 N.C. 603 (1987) (“The statement was made approximately five weeks after the incident. […T]he superior court could properly conclude from this evidence that the matter was fresh in the witness' memory at the time of the statement.”).

iv) “…and reflected his knowledge correctly.”

Finally, the memorandum or record must be accurate and correctly memorialize the witness’s statement. This element is usually established through circumstantial evidence such as the witness’s signature verifying the statement, the reliability of the recording process, or the witness’s testimony at trial that he or she reviewed the statement at the time it was made and agreed that it was correct. See, e.g., State v. Brown, 258 N.C. App. 58 (2018) (written statements admitted where witnesses confirmed that they accurately reflected what the witnesses heard defendant say); see also State v. Love, 156 N.C. App. 309 (2003) (“…the test for admissibility is squarely focused on the witness' adoption of the statement, and the statement's reliability. Although a signature is certainly evidence of adoption and reliability, it is neither conclusive nor a necessary precondition.”).

If the witness disputes the contents of the memorandum or record (as opposed to merely testifying that the witness no longer remembers the matter), the memorandum or record is inadmissible as a recorded recollection. See, e.g., State v. Wilson, 197 N.C. App. 154 (2009) (audio recording of witness’s statement was not admissible as a recorded recollection when witness testified that she did not recall giving a statement to the police, and that due to her mental and physical condition she was “liable to say anything”); State v. Hollingsworth, 78 N.C. App. 578 (1985) (error to admit letter written by witness as a recorded recollection when witness testified at trial that “this whole letter is a lie,” she just wrote down whatever her sister told her to write, and she did not actually remember anything that she described in the letter).