Evidence: What is the difference btwn FRE 612 and 803(5) Forum

[Connor Benz]

Slightly confused, thanks.

[Nat Sherman]

Under 612 you can refresh a witnesses memory with literally any writing. 803(5) is a writing made or adopted by the witness that accurately reflects their knowledge. So certain things you can use to refresh under 612 can't come in under 803(5). However, when the writing could be used in 612 and would be able to come in under 803(5), as a trial strategy, you always want to try 612 first.

If a witness doesn't remember the answer to a question you ask, you'll first try to refresh them under 612. You ask them if there's anything that will help refresh your memory, the say yes x (x can literally be any writing) you give it to them, they read it over, then you have to take it away from them, and ask is your recollection refreshed. Then re-ask your original question. The document is not admitted into evidence.

If after giving them them whatever you tried to refresh their memory with doesn't help and the document is a past recorded recollection, you can get the document entered into evidence.

You want to try the 612 route first because it will mean more to the jury hearing the words out of the witnesses mouth rather than the lawyer saying, this person is too incompetent to remember something that happened and wanted to enter in what they said a year prior.

[Connor Benz]

Thank you! I was really confused between the two. Is this what the difference would be with present recollection refreshed vs. past recollection recorded?

Any thoughts would be greatly appreciated.

[Nat Sherman]

Yes, it's exactly what the difference is between the two. 612 regulates past recollection refreshed and 803(5) is past recollection recorded.

[ValerOn1820]

I see here's a specialist in Evidence: ok -> I have 5 days till exam->open book (right now - low level of knowledge; have student's guide to hearsay)

Please recommend a routine/strategy to be well prepared.