Duhaime's Law Dictionary


Past Recollection Recorded Definition:

An exception to the hearsay rule, whereby evidence of which a witness has no current recall can nonetheless be admitted for the truth of its contents as it was recorded at a time when the witness was able to verify its accuracy.

Related Terms: Present Memory Revived, Hearsay

In US v Kelly, Justice Medina of the United States Court of Appeals wrote:

"[A] document received in evidence as past recollection recorded is received when the witness has no present recollection of the facts, therefore the net result is that the accused is deprived of the opportunity to cross-examine and hence his right to confrontation is impugned. The doctrine of past recollection recorded has long been favored by the federal and practically all the state courts that have had occasion to decide the question."

In R v Meddoui, Justice Kerans of the Court of Appeal of Alberta wrote, replying on Wigmore:

"Properly understood, the (past recollection recorded) rule is an unremarkable exception to the hearsay rule because it says hearsay is admissible in proof of the truth of the contents if uttered in circumstances that offer a guarantee of trustworthiness....

"1. The past recollection, must have been recorded in some reliable way. 2. At the time, it must have been sufficiently fresh and vivid to be probably accurate. 3. The witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he knew it to be true at the time. 4. The original record itself must be used, if it is procurable....

"A real difficulty always about the rule about past recollection recorded is that the present assurance of past honesty, while a sufficient assurance of trustworthiness to warrant admission, is not necessarily sufficient to justify acceptance. A jury cannot treat it like a talisman. All the factors relevant to trustworthiness should be weighed, including whether the witness might, when making the record, have had a motive to lie or been under some pressure, internally or externally, that might have put a blush upon the honest truth."

These words were repeated by Justice O'Connor of the Ontario Court of Appeal in R v Richardson at ¶24, and by Justice Arbour, then of the Supreme Court of Canada in R. v Fliss at ¶63.

In the 2005 edition of The Law of Evidence, the authors wrote, under the caption Past Recollection Recorded:

"A witness may, with leave of the court, refresh her memory in court from a document or an electronic record that was recorded reliably. The witness must use the original if it is available, but where it is not, an authenticated copy can be relied on. If the record is a document created by the witness, it must have been created at a time when the memory of the witness was sufficiently fresh to be vivid and probably accurate. If the record is a document created by another, or an electronic recording, that document or recording must have been reviewed by the witness at a time when his memory was sufficiently fresh to be vivid and probably accurate. The witness can rely on the document or electronic record to assist in presenting his testimony only if the witness is able to assert that the document or recording accurately represents his recollection at the time it was made."

In R. v Wilks, the Manitoba Court of Appeal wrote:

"Witnesses often forget, and so it is permissible to use aids to assist the witness.  The use of these aids will fall into one of two categories.  They will either i) assist the witness by reviving his or her memory so that the witness, whose memory has been jogged by the aid, now has a present memory of the fact (present memory revived), or ii) be a record of the fact, previously made and now attested to as an accurate record (past recollection recorded)....

"In the case of past recollection recorded, there is no present memory, so it is the evidence of the past recollection, recorded usually in the form of notes or the like, that is admitted.

"In the case of present memory revived, the aid is not evidence, but is simply a facilitative mechanism which becomes irrelevant once the witness has had his or her present memory revived by the use of the aid. "

That court relied, in part, on this statement of authors Mewett and Sankoff:

"Past recollection recorded is probably best viewed as an exception to the hearsay rule, whereby evidence of which a witness has no current recall can nonetheless be admitted for the truth of its contents as it was recorded at a time when the witness was able to verify its accuracy."

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