Evidence-Wellborn SU2006 Outline

O note 3 page 193 failed memory requirement could be

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Unformatted text preview: ony to be read into the record as a past recorded recollection exception to the hearsay rule. D argues that the record was inadmissible because it did not meet the third requirement of 803(5): that the record was made at a time when the matter was fresh in the witness' memory and reflected the witness' knowledge correctly. Issue: Was the grand jury testimony (ten months after the conversation in which the defendant told him the forklifts were stolen) sufficiently fresh in the witness' memory and did it accurately reflect the witness' knowledge at the time the record was made so as to qualify under the recorded recollection exception codified in FRE 803(5)? Holding: The grand jury testimony was admissible as past recorded recollection: o Within the trial judge's discretion to determine that the conversation had been fresh in McKay's mind (even though the question is a close on) o McKay testified that he did not think he had lied to the grand jury, and said he recalled the events better when he testified before the grand jury no abuse of discretion therefore in trial court's determination tha...
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