knowledge when it was made, unless the circumstances
indicate that the statement is not trustworthy; provided
that when the witness does not remember part or all of the
contents of a writing, the portion the witness does not
remember may be read into evidence but shall not be
introduced as an exhibit over objection.
In State v. Wood, 66 N.J. 8 (1974), the New Jersey
Supreme Court, affirming on the opinion below, held
that a four month time lapse between an event and it
recordation did not preclude the admission of that
recordation as past recollection recorded. Id. at 9; State
v. Wood, 130 N.J. Super. 401, 408-10 (App. Div. 1974).
The Wood Court determined that the detailed nature of
the statement showed that it was made at a time when the
relevant event was fresh in the memory of the witness. Id.
at 408. The reliability and admissibility of a statement
as past recollection recorded is enhanced if the statement
is in the handwriting of the declarant and signed by him
or her.
The history of N.J.R.E. 803(c)(5) indicates that its
“freshness” language was intended to permit the
admission of a recordation made even months after the
events recorded had transpired. Although the exception
to the hearsay rule for past recollection is grounded in the
common law, former Evid. R. 63(1)(b) was deliberately
worded to nullify existing New Jersey precedent that
required a high degree of temporal proximity between the
events recorded and the recordation. See State v. Cestone,
38 N.J. Super. 139 (App. Div. 1955). The New Jersey
Courts have recognized the expanded scope of past
recollection recorded and have since the adoption of
former Evid. R. 63(1)(b) in 1967 admitted such evidence
freely. State v. Wood, supra; Johnson v. Malnati, 110 N.J.
Super. 277, 280 (App. Div. 1970).
In State v. Hacker, 177 N.J. Super. 533 (App. Div.),
certif. denied, 87 N.J. 364 (1981), the court held that the
prior statements of a witness given under oath to the
grand jury could be read to the jury in a criminal
prosecution. Such evidence was admissible as past
recollection recorded where the witness stated that she
could not recall many of the events to which she testified
before the grand jury but that her prior statements were
truthful and that she had made them.
In a sexual assault case involving the admission of an
out-of-court statement of a juvenile witness, the
standards set forth in N.J.R.E. 803(c)(27), the “tender
years” hearsay exception, should be followed, rather than
admitting the statement as past recollection recorded,
because such statements “present a special kind of
evidence problem in sexual assault prosecutions.” State v.
Delgado, 327 N.J. Super. 137, 145-46 (App. Div. 2000).J. Prior Consistent Statements (See also, CREDIBILITY
and BIAS, supra)Under N.J.R.E. 607, formerly Evid. R. 20, a prior
consistent statement may only be utilized to support the
credibility of a witness where there is an express or
implied charge against the witness of recent fabrication or
improper influence or motive. N.J.R.E. 803(a)(2) allows
the use of such statements as substantive evidence. While
federal law permits the introduction of a consistent
statement to rebut a charge of recent fabrication or
improper influence or motive only when the statement
was made before the charged recent fabrication or
improper influence or motive, Tome v. United States, 513
U.S. 150 (1995), the New Jersey Supreme Court has not
yet resolved the issue of whether N.J.R.E. 803(a)(2)
contains this temporal requirement. State v. Chew, 150
N.J. 30, 80-81 (1997).If such evidence is admitted substantively, no
cautionary charge is needed. State v. Torres, 313 N.J.
Super. 129, 158-59 (App. Div.), certif. denied, 156 N.J.
425 (1988).In State v. Spano, 69 N.J. 231 (1976), the sister of the
defendant provided him with alibi testimony. On her
direct testimony she was not permitted to refer to her
diary, for the ostensible purpose of refreshing her
recollection. The Supreme Court of New Jersey held that
this was a proper limitation on the testimony of the
witness because there was no need for her to refresh her
recollection since she manifested no inability to recall the
pertinent event. The use of the diary was actually an
improper attempt, barred by former Evid. R. 20, to
bolster her credibility, prior to any impeachment.A tape recording of a police officer, made during a
chase of a criminal suspect, although not admissible to
bolster the officer’s credibility under former Evid. R. 20,
is admissible as highly probative independent evidence of
the criminal incident. State v. King, 215 N.J. Super. 504
(App. Div. 1987).In State v. Bass, 221 N.J. Super. 466 (App. Div.
1987), certif. denied, 110 N.J. 86 (1988), the court held
that testimony by two detectives regarding prior
statements to them by the brother of a murder victim,
consistent with the brother’s trial testimony, was
properly admitted under former Evid. R. 20. The court
determined that the cross-examination of the witness was