Past Recollection Recorded

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Past Recollection Recorded
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Basic Structure of a Simple Legal Rule

• A particular functional legal outcome results
• If certain facts (elements) are true

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6 Elements of Past Recollection Recorded

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6 Elements

• Memorandum or record
• About something which W once knew
• About something which W now has insufficient
  knowledge either
• To testify fully or
• To testify accurately
• Which W either
• Made or
• Adopted
• While fresh in Ws memory
• Which accurately reflects Ws knowledge

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Legal Outcome If Elements Met

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Legal Outcome If Elements Met

• It can be admitted into evidence
• It can be read to the jury
• It cannot be passed to the jury
• Unless the opponent wants it given to the jury

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Do Problem 35A
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Establish Each Element (Start With 2)

• Memorandum or record
• About something which W once knew
• About something which W now has insufficient
  knowledge either
• To testify fully or
• To testify accurately
• Which W either
• Made or
• Adopted
• While fresh in Ws memory
• Which accurately reflects Ws knowledge

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Business Records
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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

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7 Elements and 1 Exception

• Exception

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7 Elements and 1 Exception

• Memorandum or record in any form
• About essentially anything
• Made at or near the time
• Made by
• Person with personal knowledge, or
• Person who got information from source with
  personal knowledge and either
• Source had business duty to report, or
• Sources statement not barred by hearsay
• Kept in the ordinary course of business
• By business that ordinarily keeps such records
• Shown by qualified witness (e.g. custodian)
• Exception Unless there are indications of
  untrustworthiness

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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?

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Permissible Sources of Information
The Record Everything that she wrote Exhibit
1
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Brings Writer to Court
The same things that I wrote in Exhibit 1.
The Record Everything that she wrote Exhibit 1
But normally, writer could not testify unless she
had personal knowledge
Basically Subject to the same objections as if
Writer testified in court.
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Brings Writer to Court
We let record in if
Writer received information from source with
personal knowledge
Writer had personal knowledge.
or
and
The Record Everything she wrote Exhibit 1
Source had business duty to report.
Sources statement is not barred by hearsay.
or
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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.

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Do Problem 36
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Public Records803(8)
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What Are the 3 Types of Public Records Admissible
Under 803(8)?

• Activities of the Office
• Matters Observed
• Factual Findings

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Activities of Office 1 Element
The record is about the activities of the office.
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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
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Matters Observed 3 Elements 1 Exception

• Exception

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Matters Observed 3 Elements 1 Exception

• Report is about a matter that was observed, and
• The observer had a legal duty to observe the
  matter, and
• 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.

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Factual Findings 3 Elements 1 Exception

• Exception

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Factual Findings 3 Elements 1 Exception

• The case must be either
• A civil case, or
• A criminal case in which the report is offered
  against the government and
• Report contains factual findings (i.e.,
  conclusions about a factual dispute)
• Those findings must result from a legally
  authorized investigation

Exception Not admissible if sources or
circumstances indicate it is untrustworthy
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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
• Report is not admissible if sources or
  circumstances indicate that it is untrustworthy.
• The report cant be offered by the government in
  a criminal case.

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Factual Findings 2 Elements 2 Exceptions

• Exceptions

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An Example
On 3/1/00, I Sam Smith (an EEOC Investigator)
went to ERs plant.
I spoke to Fred Foreman who said that Elmer EE
was fired because he hit a supervisor. I then
spoke to Elmer who said he never hit anyone and
that he was fired after complaining about racial
slurs.
Based on the interviews, I find probable cause
to believe that ER fired Elmer because of his
complaints about racial slurs. Sam
Activities
Observations
Findings
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Do Problem 37
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Do Problem 38
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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.
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Any Questions About

• Ancient Documents 803(16)
• Family History 803(19)
• Reputation re Boundaries or General History
  803(20)
• Prior Convictions 803(22)