The Witness Forgot (again!)

We’ve previously talked about what to do when your witness temporarily forgets what they’re supposed to say (“What to Do When Your Witness Forgets”), but what can you do when your witness seems to have permanently forgotten what happened?

Before we begin, let’s start with the assumption that your witness honestly has no recollection of what happened, and isn’t intentionally “forgetting.”   (If your witness is trying to side-step perjury charges by saying he “doesn’t recall,” “cannot remember,” or “has no present recollection,” that’s an entirely different nightmare you’ll need to address, and it’s beyond the scope of this article.)  The issue we’re tackling in this article is what to do when time or mental infirmity completely destroys your witness’s memory.

The most dramatic example of lost memories that I ever saw arose when I was a prosecutor intern in the Crimes Against Children / Sex Crimes unit.  One of the cases I was helping with involved a woman who had been drugged with GHB and then raped in the parking lot of a nightclub.  She was able to identify her attacker from photo lineups, so a few days later the police were able to locate him and arrest him.

Tragically, before the case went to trial, she was in a traumatic car accident, suffering a head injury that caused significant brain damage and completely erased her memory of what had happened the night of the rape.

Without her testimony, how were we going to prove the case?  If we couldn’t come up with something, the rapist was going to escape scot-free.

The prosecutor’s first thought was, “Let’s try to refresh her memory.”  Talking with the family, we learned that before the accident, the victim had kept a daily journal.  Her journal entry describing the night of the rape was very detailed, so he was optimistic that the journal might do the trick.  Unfortunately, even after reading through her journal several times, she told us that it didn’t do anything to help her remember.  She recognized her own handwriting and knew that she must have written the entry shortly after being attacked, but she couldn’t summon up an independent memory of the events.

What did that leave us with?

She couldn’t remember the evening, so she wouldn’t be able to testify from memory about what had happened.  We couldn’t refresh her memory, so that option wouldn’t work either.  The crash had happened before she could be deposed and before she could testify in a bond hearing, so we didn’t have any prior testimony we could introduce into evidence.  We’d run into a brick wall.  What were we going to do?

“It’s too bad her journal is hearsay,” I said.  “If she could just read from her journal during trial, we could probably win the case.”

Have you ever had a situation where you became so emotionally invested in a case that you ended up with “tunnel vision” that blinded you from seeing other options?  When that happens, sometimes all it takes is an isolated comment to help you open your eyes and get right back on track.

That’s exactly what had happened here.  The prosecutor had become so focused on having the victim testify that he was overlooking another option for getting her story in front of the jury.  But immediately after I made my comment, he said, “Duh!  Of course we can do that!”

“We can?” I asked.  “How are you gonna overcome the hearsay objection?”

“Easy,” he replied, “we just introduce her journal as a Past Recollection Recorded!”

Hopefully, you’ll never find yourself in a similar situation with a witness whose memory has gone missing, but if you do, you’ll want to know how to admit their prior statement into evidence.  Here are the steps we took to qualify the statement as a recorded recollection:

First, you must show that the witness once had knowledge of the event.  In our case, we could do that by either asking her family members to establish the victim’s knowledge before the car crash, or asking her about her journal writing habits and whether the journal was a fictional work or whether it accurately reflected events in her life.

Next, you’ll need to show that your witness now has an insufficient recollection to testify fully and accurately.  Obviously, our victim didn’t have any memory of what happened, so this was an easy element to establish.  If your witness has a partial memory of what happened, you may be more limited in your use of the recorded recollection.

Once you’ve established that the witness once knew about the event, but now can’t remember, you’ll need to establish the veracity of the written statement you’re seeking to introduce.  There are three things that you’ll need to prove:

First, the statement must have been made by the witness.  If someone else wrote the statement (for example, a police report capturing a summary of the witness’s statement), you’re probably out of luck.

Second, you’ll need to show that the statement was made when the matter was still fresh in the witness’s memory.  In our case, the victim could testify that she wrote in her journal on a daily basis, so each entry was made while the events were still very fresh in her mind.  Often, you’ll be able to establish the freshness of the writing by showing that the statement is dated at or near the time of the purported event.

Finally, you must show that the statement correctly reflects the witness’s knowledge of the event.  This may be established within the four corners of the document.  Is it based on knowledge that only the writer would know, or is it based on hearsay?  If the statement appears to be prepared in anticipation of litigation, you’ll have more difficult hurdles trying to establish this element.

Once you’ve jumped through all of these hoops, your Past Recorded Recollections can be introduced into evidence.  Although you’re going to have the clerk mark the exhibit for evidentiary purposes, the actual writing won’t be introduced into evidence.  Once you’ve laid the predicate, the witness simply reads the statement aloud.  It’s important to remember that the physical document is usually NOT admissible unless your opponent offers it into evidence.

Luckily, we were able to establish all of the elements for admissibility of her recorded recollection, so we were able to successfully prosecute the rapist and keep him off the streets.  One again, a good knowledge of the evidence code had saved the day.

Here’s your practice tip for the week: Before you go to court, print out a copy of the evidentiary predicates for the admissibility of Past Recollection Recorded1 and place it in your trial notebook.  Chances are, even if you try dozens of cases, you’re probably never going to need it.  However, for that one time when you do need it, this article will prove to be a lifesaver!


1 Federal Rule of Evidence 803(5) Recorded recollection. A memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness’ memory and to reflect that knowledge correctly. If admitted, the memorandum or record may be read into evidence but may not itself be received as an exhibit unless offered by an adverse party.

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2 thoughts on “The Witness Forgot (again!)

  1. Actually Mr. Elliot, I’m subscribe from Sri Lanka. In our context most witnesses have forgotten what they said in previous occasion. That was a big trouble for us. So this article is very helpful for me to face to that difficulty.

  2. This article was extremely helpful. I appreciate words-of-one-sylable directions on how to lay the proper predicate for admission of evidence. As an appellate lawyer this gives me extra ammo when I seek on appeal to attack a judge’s decision to admit or exclude evidence.