An exception to the hearsay rule exists for any writing made or adopted by a witness who at the time of trial lacks sufficient recollection to testify independently, fully and accurately as to the contents.{footnote} [3115]  FRE 803(5); Cal. § 1237; United States v. Edwards, 539 F.2d 689 (9th Cir. 1976); Waring v. F.W. Woolworth, 32 Ill. App. 2d 7, 176 N.E.2d 700 (1st Dist. 1961)(investigator’s transcription of plaintiff’s statement given in hospital but not signed admissible to as investigator’s past recollection recorded).  {/footnote}  The writing must have been made or adopted by a witness with personal knowledge{footnote}Rock v. Huffco Gas & Oil Co., 922 F.2d 272 (5th Cir. 1991).{/footnote} when the witness’ recollection was fresh.{footnote}United States v. Patterson, 678 F.2d 774 (9th Cir. 1982)(whether recording contemporaneous left to trial court’s discretion).

 Rowlett v. Hamann, 112 Ill. App. 2d 121, 251 N.E.2d 358 (1st Dist. 1969)(description of automobile noted shortly after observing automobile).{/footnote}  The witness need not be shown to have a complete lack of memory as to the matter in question,{footnote}United States v. Williams, 571 F.2d 344 (6th Cir. 1978) (G).{/footnote} and the writing may be used even if the witness’ recollection is not refreshed.{footnote}Stanton v. Pennsylvania R.R., 32 Ill. App. 2d 406, 178 N.E.2d 121 (1st Dist. 1961).{/footnote}

Adopted Writings

Under the federal rules and in most states, a writing need not have been made by the witness so long as the witness read it when the matter was fresh in her recollection and adopted it as correct.  Compare with ADMISSIONS — Adoptive Admissions.  [What does adopted mean in this context?]  Some states go further and admit writings which were accurately prepared (e.g., dictated but not read) at the witness’ direction under this exception, while others take a very narrow approach and admit only writings made by the witness.  Note that a writing which would not fit within this exception may nonetheless be admissible in many courts if it sets forth present sense impressions (e.g., a secretary’s transcription of a text dictated out loud).

Use of Writing

Most court will not allow the writing itself to be published to the jury unless the opposing party agrees.

Confrontation Clause

It has been held that admission of hearsay under this exception does not violate a defendant’s right of confrintation.{footnote}United States v. Leathers, 135 F.2d 507 (2d CIr. 1943).{/footnote}

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BUSINESS RECORDS: PRESENT SENSE IMPRESSIONS; REFRESHING RECOLLECTION.