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View Diary: Lori Grifa works for Samson, works for Christie; But they "Categorically Deny" her Hoboken Work (51 comments)

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  •  The contemporaneous diary... is not hearsay. (8+ / 0-)
    The lawyers are going to want to discount the contemporaneous diary for that very reason. It will stand up in court. It is not hearsay.
    I respectfully disagree.  The diary is hearsay if offered to establish the truth of its contents.  It is an unsworn, extrajudicial statement.  However, a diary can be used, e.g., to help a witness refresh his or her recollection, or in cross-examination, e.g., to undermine a witness's credibility by showing a conflict between the witness's present testimony and the witness's previous, then-contemporary diary entry.
    32.  Third, ETC claims that the trial court erred in denying its motion in limine to bar Collins' diary as evidence because it was hearsay. Collins submitted the diary entries to prove that the events reported therein actually occurred. See Fed. R. Evid. 801(c). As such, the diary entries are hearsay. Collins counters that the diary satisfies the hearsay exception for recorded recollections. See Fed. R. Evid. 803(5).3

    33  For a diary to be admissible under Rule 803(5), the party seeking to admit the document must establish 1) that the record concerns a matter about which the witness once had knowledge but now has insufficient recollection to testify fully and accurately; and 2) that the witness made or adopted the record when the matter was fresh in the witness's memory and the record reflects that knowledge correctly. See Fed.R.Evid. 803(5); United States v. Severson, 49 F.3d 268, 271 (7th Cir.1995); United States v. Lewis, 954 F.2d 1386, 1393 (7th Cir.1992).

    34  At trial, Collins recognized his diary. He explained that he started keeping a diary on March 3, 1993, the day his hours were reduced, and that each entry is his version of an episode with Kibort which he recorded when he returned to his home. Collins testified about his interactions with Kibort by reading passages from his diary. See Trial Tr. Vol. V at 41-42. Collins' counsel then moved for the diary's admission into evidence as an exhibit. After examining the document, the court accepted the diary as plaintiff's exhibit 7. See id. at 136.

    35  The trial court erred in allowing Collins to rely on his diary while testifying. Collins did not state that he could not recall the events about which he used his diary to testify. In fact, in other portions of his testimony, Collins recalled these events in detail. See id. at 9-11. Thus, Collins did not lay the proper foundation for the diary's admissibility. The trial court also should not have admitted the diary as an exhibit into evidence. See Fed.R.Evid. 803(5). Even if Collins had satisfied Rule 803(5)'s admissibility requirements, the diary itself may not be received as an exhibit unless it is offered by an adverse party. See Lewis, 954 F.2d at 1393 n. 6; Michael H. Graham, Handbook of Federal Evidence § 803.5 (4th ed.1996). Because Collins did not satisfy the requirements of Rule 803(5), the diary is inadmissible hearsay.

    Collins v. D.J. Kibort, 143 F. 3d 331 (7th Cir., 1988).

    Admittedly not a Second Circuit decision, but I doubt that the Second Circuit has held otherwise.

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