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Taken from: http://www.udayton.edu/law/_resources/d ... _final.pdf

[24] In U.S. v. Davidson, the defendant was charged with murder. The indictment alleges Davidson pushed Vernon into an open manhole on the street early on a Monday morning. Several people were on the street at the time and some of them were eye witnesses to the event. Officer Oliver arrived at noon and was able to locate and interview some of the witnesses. He could remember interviewing one woman, Willow, but later he could no longer remember her name or what it was she had told him that day. But he did have his notebook that day and he wrote down the statement as Willow was speaking to him. At trial, Officer Oliver brought the notebook with him and the Prosecution asked him to read Willow’s statement from it to the jury. Defense counsel objected. The trial court should:

[A] sustain the objection because Willow’s statement is classic hearsay and not within any exception.
overrule the objection because the statement is an excited utterance.
[C] overrule the objection because the statement is a past recollection recorded.
[D] overrule the objection because Officer Oliver’s notebook is a business record

What about this fact pattern makes answer C wrong? Is it necessary that the past recollection is that of the witness, rather than a recording of someone else's statements? Or, something else?

I get why B and D are wrong - answer key says A.

The officer's recorded recollection still contains the assertions by the witness.
The hearsay diagram is Witness-->Officer-->Court. The officer could use a recording of his own recollection, but that doesn't make the witness's statement admissible.

803(5) Recorded Recollection. A record that:

(A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

(B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and

(C) accurately reflects the witness’s knowledge.

D is wrong because the business records exception requires that the record be made by someone who had a business duty to make the record. In Johnson v. Lutz they shot down a police report of an accident containing witness statements since the witness had no business duty.

I think.

What about this fact pattern makes answer C wrong? Is it necessary that the past recollection is that of the witness, rather than a recording of someone else's statements? Or, something else?

Past recollection recorded (803.5) does not allow the testimony to be read or shown to the jury. It may only be used to refresh the police officer's recollection of what he was told. If what he was told doesn't fall into a hearsay exception, though, it doesn't matter how many times you use 803.5 to refresh his recollection, it still doesn't get to come into the record.

Tanicius wrote:

What about this fact pattern makes answer C wrong? Is it necessary that the past recollection is that of the witness, rather than a recording of someone else's statements? Or, something else?

Past recollection recorded (803.5) does not allow the testimony to be read or shown to the jury. It may only be used to refresh the police officer's recollection of what he was told. If what he was told doesn't fall into a hearsay exception, though, it doesn't matter how many times you use 803.5 to refresh his recollection, it still doesn't get to come into the record.

You're mixing up two provisions. 803.5 isn't the refresher one. 803.5 allows the writing to serve as the testimony itself. Refreshing a witness' memory does not allow the writing to serve as testimony. Witness can only look at it to be refreshed, then must testify from memory.

A is right because there are two levels of hearsay here. The writing in the notebook is an out of court statement by the officer. Willow's statement to the officer is an out of court statement. So if the testimony is to be admitted we need an exception for both. The officer's writings could get in under past recollection recorded. But there isn't a hearsay exception for Willow's statement so it should be excluded.

Also a Confrontation Clause problem.

Exam's in the morning, so if I could get some help with this one it'd be appreciated.

D's on trial for robbery. D's brother (B) was convicted and won't say who his accomplice was. D's father (F) wants to testify that his brother (U - D's uncle) called him the night before the robbery to ask F to give C, his son (D's cousin), money so C could fly home for a family emergency. C had been living with D and B.

There is other evidence indicating that C, not D, was B's accomplice.

Can F testify to what U told him? Can it come in because it is not hearsay at all - it is being offered to show C's intent (effect on hearer) - it's not being offered to prove the truth of the matter asserted - that there is a family emergency?