MBE Rules · Evidence
Recollection Doctrines Compared
Recorded recollection vs. refreshing
The rule
Refreshing uses any item to revive live memory (item not evidence); past recollection recorded requires a foundation of fresh-memory accuracy and lets the record be read to the jury when memory fails.
In plain English
The recollection doctrines allow a witness to testify about a past event even if they can't fully remember it at the time of the trial. Refreshing a witness's memory involves using any item to jog their memory, while past recollection recorded allows a written record to be read to the jury if the witness can confirm its accuracy from a time when they had a clear memory.
Worked example
During a trial, a witness struggles to remember details about a car accident. The attorney shows the witness a police report they wrote shortly after the accident, which helps the witness recall the event. The jury is allowed to hear the contents of the police report because it meets the criteria for past recollection recorded.
Memory hook
Refresh your memory, but record it for the jury!
The trap
Exams may confuse students by presenting scenarios where a witness uses a document but fails to establish the necessary foundation for past recollection recorded. Students might incorrectly assume any document can be used to refresh memory.
How examiners test it
Questions often present a witness with a memory lapse and ask whether a document can be used to refresh their memory or be admitted as past recollection recorded, testing the understanding of the foundational requirements.
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