Past Recollection
Recorded
Basic Structure of a Simple Legal Rule
• A particular
functional legal
outcome results
• If certain facts
(elements) are true
6 Elements of Past Recollection Recorded
1.
2.
3.
4.
5.
6.
6 Elements
1. Memorandum or record
2. About something which W once knew
3. About something which W now has
insufficient knowledge either
a. To testify fully or
b. To testify accurately
4. Which W either
a. Made or
b. Adopted
5. While fresh in W’s memory
6. Which accurately reflects W’s knowledge
Legal Outcome If Elements Met
1.
2.
3.
Legal Outcome If Elements Met
1. It can be admitted into evidence
2. It can be read to the jury
3. It cannot be passed to the jury
a. Unless the opponent wants it
given to the jury
Do Problem
35A
Establish Each Element (Start With #2)
1. Memorandum or record
2. About something which W once knew
3. About something which W now has
insufficient knowledge either
a. To testify fully or
b. To testify accurately
4. Which W either
a. Made or
b. Adopted
5. While fresh in W’s memory
6. Which accurately reflects W’s knowledge
Business Records
Basic Structure of a Slightly
More Complex Legal Rule
• A particular functional
legal outcome results
• If certain facts
(elements) are true
• Unless certain other
(exception) facts are
true
7 Elements and 1 Exception
1.
2.
3.
4.
5.
6.
7.
Exception:
7 Elements and 1 Exception
1.
2.
3.
4.
Memorandum or record in any form
About essentially anything
Made at or near the time
Made by
a. Person with personal knowledge, or
b. Person who got information from source with
personal knowledge and either
1) Source had business duty to report, or
2) Source’s statement not barred by hearsay
5. Kept in the ordinary course of business
6. By business that ordinarily keeps such records
7. Shown by qualified witness (e.g. custodian)
Exception: Unless there are indications of
untrustworthiness
3 Easy Problem Areas &
1 Hard One
• What is a “business”?
• What is a record?
• How do you lay foundation?
• What are permissible
sources for the information?
Permissible Sources of Information
The Record
[Everything
that she wrote]
Exhibit 1
Brings Writer The
to Court
same
The Record
[Everything
that she wrote]
Exhibit 1
things that I
wrote in
Exhibit 1.
But
normally,
Basically
writer
could
not
Subject
to the
testify
unless
same
objections
sheashad
personal
if Writer
knowledge
testified
in court.
WeBrings
let record
WriterintoifCourt
Writer had
Writer received
personal
or information from
knowledge.
source with personal
knowledge
and
The Record
[Everything she
wrote]
Exhibit 1
Source
Source’s
had
statement
business or
is not
duty to
barred by
report.
hearsay.
Record (Written by Writer) Says That
People at Table 2 Ate Ham.
• Writer saw them eat it.
• Writer is the cashier and was told
by the waiter (who saw it).
• Writer was told by the defendant.
• Writer was told by someone who
was still stressed about being
served a non-kosher meal.
Do Problem
36
Public Records
803(8)
What Are the 3 Types of Public
Records Admissible Under 803(8)?
• Activities of the Office
• Matters Observed
• Factual Findings
Activities of Office:
1 Element
The record is
about the
activities of the
office.
Matters Observed:
3 Elements & 1 Exception
Factual Findings:
3 Elements & 1 Exception
Factual Findings:
2 Elements & 2 Exceptions
Identify elements.
Invent a hypothetical and lay the
foundation for it
Matters Observed:
3 Elements & 1 Exception
1.
2.
3.
Exception:
Matters Observed:
3 Elements & 1 Exception
1. Report is about a matter that was
observed, and
2. The observer had a legal duty to
observe the matter, and
3. The observer had a legal duty to
report what he or she observed.
Exception: Report is not admissible if
• The case is a criminal case, and
• The observer was a law
enforcement official.
Factual Findings:
3 Elements & 1 Exception
1.
2.
3.
Exception:
Factual Findings:
3 Elements & 1 Exception
1. The case must be either
a. A civil case, or
b. A criminal case in which the report is
offered against the government; and
2. Report contains factual findings (i.e.,
conclusions about a factual dispute)
3. Those findings must result from a legally
authorized investigation
Exception: Not admissible if sources or
circumstances indicate it is untrustworthy
Factual Findings:
2 Elements & 2 Exceptions
1. Report contains factual findings (i.e.,
conclusions about a factual dispute)
2. Those findings must result from a legally
authorized investigation
Exceptions:
1. Report is not admissible if sources or
circumstances indicate that it is
untrustworthy.
2. The report can’t be offered by the
government in a criminal case.
Factual Findings:
2 Elements & 2 Exceptions
1.
2.
Exceptions:
1.
2.
I spoke to Fred
Foreman
Based on
who
the
said
that Elmer EE
interviews,
I find
was
fired because
probable
cause
hetohit a
On 3/1/00, I Sam
supervisor.
believe
that ER
I then
fired
Smith (an EEOC
spoke because
Elmer
to Elmer of
who
his
Investigator) went to
said he never
complaints
about
hit
ER’s plant.
anyone
racial
slurs.
and that he
was fired after
complainingSam
about
racial slurs.
An Example
Activities
Observations
Findings
Do Problem
37
Do Problem
38
I started working at the plant right
after Elmer was fired. In the
lunchroom, I often talked to other
employees about Elmer. They
consistently told me he was the
worst welder they ever met. Most of
them told me about the time, just
before he was fired, when he left his
torch on and almost burned down
the plant.
Any Questions About
• Ancient Documents – 803(16)
• Family History – 803(19)
• Reputation re Boundaries or
General History – 803(20)
• Prior Convictions – 803(22)