MBE Rules · Evidence
Recorded recollection
FRE 803(5)
The rule
A record on a matter the witness once knew about but cannot fully recall, made or adopted by the witness when matter was fresh, AND that accurately reflects the witness's knowledge. READ INTO evidence but not received as an exhibit (only an adverse party may offer the record itself).
In plain English
If a witness can't remember something they once knew, a record they made when it was fresh in their mind can be read to the jury, but only the other side can use it as an exhibit.
Worked example
Officer A can't recall details of a car accident. He reads his notes made right after the crash to the jury. The defendant can introduce the notes as evidence, but Officer A's side cannot.
Memory hook
Write it, forget it, read it. Record when fresh, recall when foggy, read in but don't exhibit.
The trap
Students think: the record can be entered as an exhibit. Wrong, because only an adverse party can offer it. The actual rule is read into evidence, not admitted.
How examiners test it
The MBE loves: witness can't recall details, a record exists. Trap: assuming record can be admitted as evidence. It's read into evidence, not admitted unless by adverse party.
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