1. Spring 2016, Vol. 24, No. 2
TABLE OF CONTENTS
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Articles »
Prior Consistent Statements: The Dangers of Misinterpreting Amended Rule 801(d)(1)(B)
By Laird Kirkpatrick and Christopher B. Mueller
To apply the amendment properly, attorneys and courts must research and consider law outside the rule.
The Hearsay Exception for Market Reports
By Ryan W. Babcock
Recent cases and traps for the unwary.
The State-of-Mind Exception to the Hearsay Rule
By Michael R. Lied
Three circuit court cases illustrate the difficulty of applying the exception.
Who Uttered the "Statement Made for Medical Diagnosis or Treatment"?
By Ankur Mandhania
A burgeoning split of authority.
Practice Points »
Hearsay Exception for Recorded Recollections: Pitfalls to Avoid
Lessons to learn from recent cases.
NY State Institutes New Rule Regarding Use of Expert Testimony on Summary Judgment
The amendment was intended to overrule cases that held that the use of expert affidavits was at the
discretion of trial courts.

2. Trial Evidence
Spring 2016, Vol. 24, No. 2
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PRACTICE POINTS
April 1, 2016
Hearsay Exception for Recorded Recollections: Pitfalls to
Avoid
Rule 803(5) of the Federal Rules of Evidence operates as an exception to the hearsay rule,
provided the requirements governing the rule as to the “recorded recollection” are satisfied. The
rule is as follows
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.
If admitted, the record may be read into evidence but may be received as an exhibit only
if offered by an adverse party.
While the literal text of the rule might prompt philosophical reflection regarding whether the
record complies with subpart (c), and how one might go about proving “accuracy” when the
witness does not remember enough about the matter to testify fully and accurately, courts have
taken a pragmatic approach in applying the rule. See Priester v. Texas, No. 08-13-00278-CR,
2015 Tex. App. LEXIS 10165, *28–*29 (Tex. Ct. App. 8th Dist. Sept. 30, 2015) (even where a
witness displayed an inconsistent or spotty memory, the court allowed the state to read the
witness’s prior grand jury testimony into the record, as the witness’s recollection would only be
partial).
Still, counsel will not be able to establish a proper foundation when the witness cannot vouch for
the accuracy of the statement because she does not remember making it, meaning that it cannot
be shown to “accurately reflect[] the witness’s knowledge” at the time the witness offers her
testimony. Kubsch v. Neal, 800 F.3d 783, 793–94 (7th Cir. 2015) (applying Indiana law, but
describing outcome as consistent with federal evidentiary rules and those applicable in other
states).
What about a situation where the witness made a statement to another person, and that other
person was the one who took notes of the conversation? Even if it was not contemporaneously
“adopted by” the witness, courts have found that it is admissible, provided that the witness
testifies that the record is accurate. Bostwick v. Watertown Unified School District, Case No. 13-
C-1036, 2015 U.S. Dist. LEXIS 46495 (E.D. Wis. April 9, 2015); see also United States v.
Williams, 951 F.2d 853 (7th Cir. 1993). This result appears to be at odds with the express terms
of the rule, but many courts have permitted this evidence nonetheless. If the witness is not
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© 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.
Page 16 of 19

3. Trial Evidence
Spring 2016, Vol. 24, No. 2
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present to testify at all, however, this hearsay exception will not apply. Arizona v. Havatone,
No. 1 CA-CR 14-0223, 2015 Ariz. App. Unpub. LEXIS 1298 at *27 n.7 (Ariz. Ct. App. Oct. 27,
2015) (statement from a deceased witness not admissible).
Counsel should also consult Rule 612 when considering this type of evidence. That rule gives an
adverse party certain rights when a writing has been used by a witness to refresh his memory, at
or before the party offers the testimony into evidence. For example, counsel can demand to
inspect the writing, may cross-examine the witness about it, and may introduce in evidence any
other portion that relates to the witness’s testimony.
Notwithstanding the exception to the hearsay rule provided for recorded recollections, another
common problem in these types of documents is hearsay within hearsay. This can be important
because the really objectionable (or critically important, depending on your circumstances)
evidence might still be kept out of trial altogether under that rationale.
—Ryan W. Babcock, Freeman Mathis & Gary, Atlanta, GA
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April 1, 2016
NY State Institutes New Rule Regarding Use of Expert
Testimony on Summary Judgment
In December 2015, the New York State Legislature passed an amendment to CPLR 3212(b),
governing the use of expert testimony in support and opposition to summary judgment motions.
The newly amended section reads:
Where an expert affidavit is submitted in support of, or opposition to, a motion for
summary judgment, the court shall not decline to consider the affidavit because an expert
exchange pursuant to subparagraph (i) of paragraph (1) of subdivision (d) of Section
3101 was not furnished prior to the submission of the affidavit.
This amendment was specifically intended to overrule a line of cases decided by the Appellate
Division, First and Second Departments, of New York that had held that it was within the
discretion of the trial court to decide whether to consider an affidavit of an expert on summary
judgment when that expert had not been part of the pretrial discovery process. See Construction
by Singletree, Inc. v. Lowe, 55 A.D.3d 861 (2d Dep’t 2008).
The sponsor memo submitted along with the bill explained part of the perceived need for this
amendment—“the multitude of different Judicial District, County, and individual judges' rules
addressing the timing of expert disclosure, many of which may be at odds with CPLR
3101(d)(1)(i) [the rule on expert disclosure] or which do not require disclosures of expert
_________________________________________________________________________________________________________
© 2016 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any
portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database
or retrieval system without the express written consent of the American Bar Association.
Page 17 of 19