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 record2. About something which W once knew3. About something which W now has

insufficient knowledge eithera. To testify fully orb. To testify accurately

4. Which W eithera. Made orb. Adopted

5. While fresh in W’s memory6. 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 record2. About something which W once knew3. About something which W now has

insufficient knowledge eithera. To testify fully orb. To testify accurately

4. Which W eithera. Made orb. Adopted

5. While fresh in W’s memory6. 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 Exception1.

2.

3.

4.

5.

6.

7.

Exception:

7 Elements and 1 Exception1. Memorandum or record in any form2. About essentially anything3. Made at or near the time 4. Made by

a. Person with personal knowledge, orb. Person who got information from source with

personal knowledge and either 1) Source had business duty to report, or2) Source’s statement not barred by hearsay

5. Kept in the ordinary course of business6. By business that ordinarily keeps such records7. 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 to Court

The Record

[Everything that she wrote]

Exhibit 1

The same things that I

wrote in Exhibit 1.

Basically Subject to the

same objections as if Writer

testified in court.

But normally, writer could not testify unless

she had personal knowledge

Brings Writer to Court

The Record

[Everything she wrote]

Exhibit 1

We let record in if

Writer received information from

source with personal knowledge

Writer had personal

knowledge.

Source had

business duty to report.

Source’s statement

is not barred by hearsay.

or

or

and

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 Records803(8)

What Are the 3 Types of Public Records Admissible Under 803(8)?

• Activities of the Office

• Matters Observed

• Factual Findings

The record is about the

activities of the office.

Activities of Office:

1 Element

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, orb. A criminal case in which the report is

offered against the government; and2. 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.

An Example

On 3/1/00, I Sam Smith (an EEOC Investigator) went to ER’s 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

Observations

Findings

Activities

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)