Past Recollection Recorded

This page was last substantively updated or reviewed November 2017. (Rev. # 95403)

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General Principles

Where a witness has testified that he cannot recall core details of a statements made but that she told the truth whenever speaking to them. The Court may admit the notes or document if it is satisfied that they meet the Wigmore criteria:

1. Reliable recording: the past recollection must have been recorded in some reliable way;
2. Timeliness: at the time the record was created, the recollection must have been sufficiently fresh and vivid to be probably accurate;
3. Voucher for Accuracy: the witness must be able now to assert that the record accurately represented his knowledge and recollection at the time. The usual phrase requires the witness to affirm that he “knew it to be true at the time”; and
4. Absence of Memory: the witness must have no memory of the recorded events.

In practice, counsel should establish:

1. that the witnesses memory is exhausted and cannot answer the question;
2. that a record was made by the witness or on behalf of the witness;
3. the record was made near the time that the information was learned;
4. the information was fresh in their mind at the time;
5. the information was recorded from what they knew at the time and was done as accurately as possible.

Counsel can then asks the record to be put in as an exhibit.

An example would be where asking a witness to recall a licence plate number that they observed and wrote down in a statement. This statement or note would have been made at a time when the information was fresh in their mind and they made an effort to be accurate.

The witness will be asked about whether they recall the licence plate number. Often they will not recall the number by heart, this will prompt a request to introduce past recollection recorded. Counsel should go through questions establishing the lack of memory; the existence of the record; the circumstances of its creation; and the accuracy of its contents.

As Compared with Present Memory Revived

There has been a recognized misconception with counsel that a witness can "refer to notes only if he made the notes reasonably contemporaneously with the event, or if someone else made the notes, he verified the accuracy of the notes when the events were reasonably contemporaneous in his mind." These additional requirements only apply where the doctrine of "past recollection recorded" is being used to admit the records into evidence.

Error in making the distinction can result in a conviction being overturned where evidence relied upon was the product of document recitation rather than independent memory.

See Also

• Refreshing Memory
• Traditional Exceptions to Hearsay