A driver takes his new sedan on a test drive. The new car features a car phone that records telephone conversations at the driver’s option. During the test drive, the sedan driver places and records a call to his friend, using his new car phone. As the sedan driver rounds a curve on the road, he remarks to his friend, “There is a large truck with license plate number 789123H which is about to force a jeep off the road.” Subsequently, the jeep was forced off the road by the truck, and the jeep driver was injured. The truck continued on its way without stopping.
The sedan driver assisted at the accident scene and permitted the investigating police officer to listen to the recorded telephone conversation and to make a copy of it on her portable tape recorder. The jeep driver traced the owner of the truck through the license plate number and brought suit against the truck driver for her injuries.
At the trial, the sedan driver is called as a witness by the plaintiff (the jeep driver). Although he testifies generally about the accident, he cannot remember the license plate number of the car.
The plaintiff then calls the officer, who establishes the circumstances under which she recorded the sedan driver’s conversation with his friend and then proposes to play for the jury that portion of the recording dealing with the license plate number.
The trial judge should rule that the playing of the recording is:
A. Admissible only as a past recollection recorded.
B. Admissible only as a present sense impression.
C. Admissible either as a present sense impression or a past recollection recorded.
D. Inadmissible, unless the original tape from the sedan is offered into evidence.
{ 5 comments… read them below or add one }
Answer C is correct. The testimony is admissible both as a past recollection recorded and as a present sense impression. It is admissible as a past recollection recorded under Federal Rule 803(5) because the tape constitutes a record concerning a matter, namely the license plate number, about which a witness at the proceeding once had knowledge but now has insufficient recollection to enable him to testify fully and accurately. The record was made at a time when the witness’s memory was fresh and reflects the knowledge of the license plate number correctly. The best evidence rule is satisfied because this copy is a “duplicate.” The testimony is also admissible as a present sense impression. It is a statement describing an event, namely the number plate on the truck which was forcing the jeep off of the road, while the declarant was perceiving the event. There is no requirement that the friend also have perceived the event. Therefore, A and B are incorrect.
Answer D is incorrect. The tape recording made by the officer is a “duplicate” since it was produced from the original by electronic re-recording. Federal Rule 1001(4). A duplicate is admissible to the same extent as an original, under Rule 1003, unless a genuine question as to the authenticity of the original is raised, or it would be unfair in the circumstances to admit the duplicate. Since neither of those appears to be true here, the original tape need not be produced.
B. It couldn’t be past recollection recorded since it’s the officer testifying. Only the sedan driver had personal knowledge of the license plate number at one point. I think D is wrong because of the ‘unless’ — if they had a good reason as to why the original wasn’t available, it could still get in as secondary evidence.
b
answer c
C