Past Recollection Recorded

Past Recollection Recorded

Past recollection recorded is a well-established exception to the hearsay rule.  Although the test has been described in different language over the years, the essential conditions for admissibility are as follows:



Reliable record 

The past recollection must have been recorded in a reliable way.  This requirement can be broken down into two separate considerations:  First, it requires the witness to have prepared the record personally, or to have reviewed it for accuracy if someone else prepared it.  Second, the original record must be used if it is available.



Timeliness

The record must have been made or reviewed within a reasonable time, while the event was sufficiently fresh in the witness’s mind to be vivid and likely accurate.

The timeliness requirement does not call for strict contemporaneity.  It is sufficient if the record is prepared close enough to the events to ensure accuracy.  The appropriate length of time will vary with the circumstances of the case.  The key is whether the events were fresh in the declarant’s mind.  See R. v. Lauzon, [2000] O.J. No. 3940 (C.A.)  (3 days);  R. v. Weinberg, [1993] O.J. No. 4041 (C.A.) (48 hours);  R. v. Eisenhauer (1998), 1998 CanLII 1901 (NS CA), 123 C.C.C. (3d) 37 (N.S.C.A.) (6 days); R. v. Richardson, 2003 CanLII 3896 (ON CA) (where the passage of 16 hours between the events and the recording came within the acceptable bounds to give rise to an assumption of reliability).


Absence of memory

At the time the witness testifies, he or she must have no memory of the recorded events.

The absence of memory requirement does not mean that a statement is admissible as past recollection recorded only where the witness has a total loss of memory regarding the relevant events: R. v. Richardson, 2003 CanLII 3896 (ON CA).


Present voucher as to accuracy

The witness, although having no memory of the recorded events, must vouch for the accuracy of the assertions in the record;  in other words, the witness must be able to say that he or she was being truthful at the time the assertions were recorded. 

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Stuart O'Connell - http://www.leadersinlaw.ca/
Stuart is Lead Counsel at O’Connell Law Group (http://www.leadersinlaw.ca/) and works in association with the Firm.
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