Conduct of Trial - Refreshing Recollection of Witness - Past recollection recorded
If a witness made a written note of an event, or recorded an event, at or about the time of the event, and the writing does not refresh his memory he can attest to its accuracy, and the memorandum or recording can be admitted for its truth. The general rule is if even after reading the memorandum, the witness remains unable or unwilling to testify as to its contents, the memorandum itself is admissible as substantive evidence of the truth of its contents, provided that otherwise competent testimony establishes that (1) the witness once had knowledge of the contents of the memorandum, (2) the memorandum was prepared by the witness, or at his direction, (3) the memorandum was prepared when the knowledge of the contents was fresh in the mind of the witness, and (4) the witness intended, when the memorandum was made, that it be accurate.[1]
[1] People v. Raja, 77 A.D.2d 322, 433 N.Y.S.2d 200 (2d Dep't 1980).
In Saperston v. Holdaway, 93 A.D.3d 1271, 940 N.Y.S.2d 728 (4th Dep't 2012), the Appellate Division held that the court erred in admitting the father's journal in evidence. The journal constituted hearsay, i.e., “out-of-court statements offered for the truth of the matter asserted”, and the father failed to establish that the journal fell within any recognized exception to the hearsay rule. In order to admit a document as a past recollection recorded the proponent must establish “that the document relates to matters the witness observed, the matters were fairly fresh when recorded or adopted, the witness testifies that the document accurately represented his or her recollection and knowledge when it was made and the witness is presently unable to recall the facts of the matter.” The father did not testify that he could not recall the events that he recorded in the journal. Although the father testified that he made the entries contemporaneously with the events contained therein, a review of the journal reflected that the father later added commentary and/or observations on the events discussed. In addition, the journal contained alleged re-creations of texts and e-mails between the parties, which were not produced. Those portions of the journal violated the best evidence rule, which “requires the production of an original writing where its contents are in dispute and sought to be proven” (Kliamovich v. Kliamovich, 85 A.D.3d 867, 869, 925 N.Y.S.2d 591 (2d Dep't 2011)). While counsel for the father could have utilized the journal to refresh the father's recollection as to specific dates or events, the court erred in allowing the admission of the entire document in evidence.
If a witness made a written note of an event, or recorded an event, at or about the time of the event, and the writing does not refresh his memory he can attest to its accuracy, and the memorandum or recording can be admitted for its truth. The general rule is if even after reading the memorandum, the witness remains unable or unwilling to testify as to its contents, the memorandum itself is admissible as substantive evidence of the truth of its contents, provided that otherwise competent testimony establishes that (1) the witness once had knowledge of the contents of the memorandum, (2) the memorandum was prepared by the witness, or at his direction, (3) the memorandum was prepared when the knowledge of the contents was fresh in the mind of the witness, and (4) the witness intended, when the memorandum was made, that it be accurate.[1]
[1] People v. Raja, 77 A.D.2d 322, 433 N.Y.S.2d 200 (2d Dep't 1980).
In Saperston v. Holdaway, 93 A.D.3d 1271, 940 N.Y.S.2d 728 (4th Dep't 2012), the Appellate Division held that the court erred in admitting the father's journal in evidence. The journal constituted hearsay, i.e., “out-of-court statements offered for the truth of the matter asserted”, and the father failed to establish that the journal fell within any recognized exception to the hearsay rule. In order to admit a document as a past recollection recorded the proponent must establish “that the document relates to matters the witness observed, the matters were fairly fresh when recorded or adopted, the witness testifies that the document accurately represented his or her recollection and knowledge when it was made and the witness is presently unable to recall the facts of the matter.” The father did not testify that he could not recall the events that he recorded in the journal. Although the father testified that he made the entries contemporaneously with the events contained therein, a review of the journal reflected that the father later added commentary and/or observations on the events discussed. In addition, the journal contained alleged re-creations of texts and e-mails between the parties, which were not produced. Those portions of the journal violated the best evidence rule, which “requires the production of an original writing where its contents are in dispute and sought to be proven” (Kliamovich v. Kliamovich, 85 A.D.3d 867, 869, 925 N.Y.S.2d 591 (2d Dep't 2011)). While counsel for the father could have utilized the journal to refresh the father's recollection as to specific dates or events, the court erred in allowing the admission of the entire document in evidence.
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
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The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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