Bar Exam (Next Generation) Quiz: Refreshing Recollection

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Refreshing RecollectionQuestion 1 of 12

A shareholder sues a corporation for securities fraud. Before her deposition, the corporation's former CFO reviews a memorandum that the corporation's lawyer prepared from the CFO's own earlier notes about board meetings. At the deposition, the CFO testifies in detail about what happened at the board meetings, but she never mentions the memorandum. The shareholder's lawyer learns of the memorandum and demands it. The corporation refuses, arguing that the memorandum was prepared by counsel and should not be disclosed.

Which of the following is the most significant evidentiary issue raised by these facts?

Whether the CFO's deposition testimony must be stricken because she reviewed protected material before testifying.

Whether the memorandum may be used to refresh the CFO's memory even though it was prepared by the corporation's lawyer.

Whether the CFO's pre-deposition review of the memorandum entitles the shareholder to obtain it despite the corporation's claim that it is protected.

Whether the CFO's testimony is inadmissible because it restates statements contained in a protected memorandum.

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Bar Exam (Next Generation) Quiz

Bar Exam (Next Generation) Quiz: Refreshing Recollection

Practice Refreshing Recollection in Bar Exam (Next Generation) with focused quiz questions that help you check what you know, review explanations, and build confidence with test-style prompts.

What this quiz covers

This quiz focuses on Refreshing Recollection, giving you a quick way to practice the rules, question types, and explanations that matter most for Bar Exam (Next Generation).

How to use this quiz

Try each quiz question before looking at the correct answer. Use the explanations to review missed ideas, then come back to similar questions until the pattern feels familiar.

All questions

Question 1

Which of the following is the most significant evidentiary issue raised by these facts?

Whether the CFO's deposition testimony must be stricken because she reviewed protected material before testifying.
Whether the memorandum may be used to refresh the CFO's memory even though it was prepared by the corporation's lawyer.
Whether the CFO's pre-deposition review of the memorandum entitles the shareholder to obtain it despite the corporation's claim that it is protected. (correct answer)
Whether the CFO's testimony is inadmissible because it restates statements contained in a protected memorandum.

Explanation: Whenever you see a dispute over a document reviewed by a witness before testimony, separate two questions: may the witness testify, and must the document be produced? Here, the CFO reviewed a memorandum prepared by the corporation's lawyer from her own earlier notes, then testified in detail without mentioning it. The shareholder's lawyer demands the memo; the corporation invokes counsel-prepared protection. The real issue is the intersection of work-product protection and Federal Rule of Evidence 612: if a witness uses a writing to refresh memory before testifying, the adverse party may be entitled to its production if the court decides the interests of justice require it. The CFO's pre-deposition review can therefore defeat the corporation's refusal to disclose, making that the most significant evidentiary issue. The other choices miss the mark. "Whether the CFO's deposition testimony must be stricken because she reviewed protected material" is wrong because reviewing protected material does not automatically make testimony improper or subject to striking. "Whether the memorandum may be used to refresh the CFO's memory even though it was prepared by the corporation's lawyer" is also not the central issue—lawyer-prepared materials can be used for refreshment; the contested question is disclosure. Finally, "whether the CFO's testimony is inadmissible because it restates statements contained in a protected memorandum" is wrong because testimony based on refreshed memory comes from the witness's own knowledge and is not barred merely because the underlying memo is protected. Study tip: on evidence questions, always distinguish admissibility of testimony from discoverability of documents. FRE 612 is about production, not exclusion.

Question 2

In a robbery trial, the prosecution calls a witness who was across the street from the bank. She testifies that she remembers speaking with police after the robbery but cannot remember what the defendant was wearing. The prosecutor shows her a statement she signed the next day. After reading it, she says, 'I see it says he wore a yellow jacket, but I still do not remember that myself.' The prosecutor asks to question the witness about the yellow jacket, asserting that the statement refreshed her memory. Defense counsel objects.

Which of the following is the most important issue in ruling on the objection?

Whether the witness had personal knowledge of the defendant's clothing when she signed the statement.
Whether the witness's memory of the defendant's clothing was actually restored by reading the statement. (correct answer)
Whether the statement was made while the events were fresh in the witness's memory.
Whether the witness was shown the statement before or during her testimony.

Explanation: When a witness cannot remember a fact and is shown a writing to jog her memory, you are in the doctrine of refreshing recollection. The key question under that doctrine is whether the writing actually restores the witness's present memory. Here, the witness read the signed statement and still said, "I do not remember that myself." That is fatal: the statement did not refresh her memory, so the prosecutor cannot use it to elicit testimony about the yellow jacket. The witness may only testify from a revived memory, not from the contents of the paper. The other choices are tempting because they sound like evidence foundations, but they belong to a different rule. Whether the witness had personal knowledge when she signed the statement may matter for past recollection recorded—a rule for admitting a record when memory remains lost—but it does not cure her current lack of memory. Similarly, whether the statement was made while events were fresh is a foundation for admitting the statement itself, not for refreshing recollection. And whether the statement was shown before or during testimony is irrelevant; a witness may be shown a refreshing document at any point, as long as it actually works. Study tip: distinguish refreshing recollection from past recollection recorded. Ask one question first—after seeing the writing, does the witness now remember? If yes, refreshment works. If no, move to the recorded-recollection requirements.

Question 3

At a deposition, a witness is asked about a conversation she had with the plaintiff. Before answering, she reads a one-page memo that her lawyer had given her. The defendant's lawyer asks to see the memo. The plaintiff's lawyer refuses, saying the memo should not be disclosed. The court later orders the memo produced, but the plaintiff's lawyer never produces it. At trial, the plaintiff calls the witness, who begins to testify about the same conversation. The defendant's lawyer asks the court to address the plaintiff's failure to produce the memo.

Which of the following issues is most directly presented by the defendant's request?

Whether the defendant waived the production issue by not objecting again at the deposition.
Whether the memo is admissible under an exception to the hearsay rule as a record of the conversation.
Whether the defendant may use the memo to impeach the witness if the memo is later produced.
Whether the witness's trial testimony should be stricken because the memo was not produced despite the court's order. (correct answer)

Explanation: Whenever you see a discovery violation at trial, focus on the remedy: the court ordered the memo produced, the plaintiff's lawyer never produced it, and now the defendant wants the court to act. The issue is squarely about sanctions for violating a court order. The most direct question is whether the witness's trial testimony about that conversation should be stricken because the memo was not produced despite the court's order — striking testimony is a recognized sanction for failing to comply with discovery, especially when the withheld material is relevant to the testimony being given. The other choices miss the point. Whether the defendant waived the production issue by not objecting again at the deposition is wrong because the plaintiff's failure occurred after the deposition, and a party need not repeat an objection to preserve a continuing violation. Whether the memo is admissible under an exception to the hearsay rule as a record of the conversation is not the issue — the memo's admissibility is separate from the failure to produce it, and a memo of a conversation is not necessarily hearsay or a "record" in the relevant sense. Whether the defendant may use the memo to impeach the witness if the memo is later produced also misses the immediate problem: the memo has not been produced, so the court must decide the consequence of that noncompliance, not a future impeachment use. On exam day, when you see a party disobeying a discovery order, think "sanctions": exclusion of evidence, striking testimony, or contempt.

Question 4

In a civil case alleging that a customer stole merchandise, the store's clerk testifies that he cannot identify the customer. The store's attorney shows the clerk a surveillance photograph that the court has already ruled cannot be admitted because the store has not authenticated it. After looking at the photograph, the clerk says, 'Now I recognize him—it was the man in the leather jacket.' The customer's attorney objects and asks the court to strike the identification, arguing that the witness was influenced by evidence the jury will never see.

Which of the following is the most significant issue raised by the customer's objection?

Whether a photograph that has been ruled inadmissible may be used to refresh a witness's memory. (correct answer)
Whether the photograph may be admitted as substantive evidence if the witness's memory is refreshed.
Whether the photograph must be authenticated before it may be shown to the witness.
Whether the witness's refreshed identification is barred by the best evidence rule.

Explanation: When you see an objection about a witness being shown an exhibit that the jury won't see, think about the distinction between evidence and memory aids. A photograph used to refresh a witness's memory is not offered as proof—it is merely a stimulus to jog recollection. That is why the most significant issue is whether a photograph ruled inadmissible may be used to refresh a witness's memory. It may. The rules of evidence restrict what the jury may consider, not what a lawyer may show a witness to trigger a memory. Once refreshed, the witness testifies from independent recollection, and the photograph itself stays out unless separately admitted. The suggestion that the photograph may be admitted as substantive evidence if memory is refreshed misunderstands the doctrine: refreshed recollection makes the witness's testimony admissible, not the object used to refresh. Likewise, authentication is required before an exhibit is admitted into evidence, not before it is shown to a witness for refreshment. Finally, the best evidence rule applies when a party seeks to prove the contents of a writing, recording, or photograph—it does not bar a witness's in-court identification based on refreshed memory. Keep this key distinction in mind: refreshing recollection is about the witness's memory, not about getting the refreshing item into evidence. If the item is inadmissible, that affects admissibility, not the ability to refresh.

Question 5

Before testifying at trial, Chen reviewed a personal calendar to refresh his memory about the date of a meeting with his supervisor. After Chen's direct examination, the defendant requests production of the calendar. The court determines that justice requires production. The calendar also contains entries about Chen's family events and an entry about a later meeting with the same supervisor that is relevant to the claims; only the family entries are unrelated to the case. Chen's attorney asks the court to withhold the family entries.

Rule 612 of a jurisdiction's evidence code provides:

(a) Scope. This rule gives an adverse party certain options when a witness uses a writing or other item to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires.

(b) Adverse Party's Options. If an adverse party requests production of a writing or item used to refresh memory, the witness must be excused until it is produced. Unless it is produced, the court must strike the witness's testimony or declare a mistrial. If the producing party claims that the writing or item contains unrelated matter, the court must examine it in camera, excise any unrelated portion, and order that the rest be delivered to the adverse party. Any portion excised over objection must be preserved and, if the adverse party appeals, included in the record. An adverse party may use the writing or item in cross-examining the witness.

How should the court proceed?

Inspect the calendar in camera, excise the family entries, order the remaining entries produced, and preserve any excised portions for possible appellate review. (correct answer)
Order the entire calendar produced, including the family entries, because Chen used it to refresh his recollection and the adverse party is entitled to use the whole item in cross-examination.
Deny production because the calendar was used before testifying and Rule 612 gives the adverse party no right to pre-testimony review once direct examination has concluded.
Order production of only the date entry that Chen consulted, because Rule 612 permits disclosure only of the specific portion that actually refreshed the witness's memory.

Explanation: Whenever you see a question involving a witness's use of a writing to refresh memory, Rule 612 supplies a precise procedure: production is triggered, then the court protects unrelated material. Here, because Chen used the calendar before testifying and the court found justice requires production, the witness's pre-testimony review is within the rule's scope. The correct approach is to inspect the calendar in camera, excise the family entries, order the remaining entries produced, and preserve any excised portions for possible appellate review. That is exactly what the rule commands: the court must examine the item, excise unrelated matter, deliver the rest, and preserve excised portions over objection. The remaining entries—including the later supervisor meeting—are case-related and must go to the defendant for cross-examination. The choice to order the entire calendar produced, including family entries, is wrong because the rule explicitly requires excision of unrelated matter, not wholesale disclosure. Denying production because the calendar was used before testifying is also wrong: the court already determined justice requires production, and the defendant's request came after direct examination, which is permitted. Finally, ordering production of only the date entry Chen consulted is too narrow; the rule gives the adverse party the item for cross-examination and protects only unrelated matter, not portions the witness did not rely on. On exam day, apply the rule's machinery step-by-step: production, in camera review, excise unrelated, preserve for appeal. Distinguish "unrelated" from "not consulted."

Question 6

Marcus was injured when his car collided with a delivery truck. At trial, the only eyewitness, Delia, testifies that she cannot remember the color of the truck. Marcus's attorney hands Delia a handwritten statement she gave to a police officer at the scene. Delia reads it silently, looks up, and says, 'Yes, now I remember—the truck was dark green.' The delivery company's attorney asks to see the statement and to question Delia about it. Marcus's attorney objects that the statement is hearsay and was never produced in discovery.

Which evidentiary issue is most directly raised by the delivery company's request?

Whether Delia's statement may be admitted as substantive evidence of the truck's color despite the hearsay rule.
Whether Marcus's attorney may show Delia a statement she made after the accident to help her remember the truck.
Whether the delivery company may inspect Delia's statement and question her about it because it was shown to her to restore her memory. (correct answer)
Whether the statement must be excluded because Marcus's attorney did not disclose it during discovery.

Explanation: This question tests "present recollection refreshed" and the opposing party's right to probe it. When a witness's memory is jogged by a writing, the other side is entitled to inspect that writing and cross-examine the witness about it—that is the core of what the delivery company asked for. Here, Marcus's attorney showed Delia her past statement merely to refresh her memory; Delia then testified in court that the truck was dark green. The evidence is her live testimony, not the statement itself. Therefore, the delivery company may inspect the statement and question her about it because it was used to refresh her memory, making the correct answer the one about inspecting and questioning on that basis. The first wrong answer, allowing the statement in as substantive evidence of the truck's color despite hearsay, is not what the request is about—the request is for inspection and cross-examination, not admission of the statement's content. The second wrong answer, whether Marcus's attorney may show Delia the statement, is a different issue; refreshing recollection generally is permitted, and the request here did not object to the showing. The discovery-based wrong answer, excluding the statement for non-disclosure, is also off-target: discovery violations may lead to sanctions, but they do not automatically control this evidentiary request or override the right to inspect a refreshed-writing. So watch for the trap: hearsay objections often fail when a prior statement is used only to refresh a witness's current memory. The witness's answer, not the old paper, is the testimony.

Question 7

At trial, a witness for the plaintiff, Maria, is testifying about a conversation she overheard. She cannot remember the defendant's exact words. Her lawyer shows her a letter she wrote to her sister the next day. Maria reads the letter and says, "Now I remember—the defendant said, 'I will take care of it.'" Her lawyer asks Maria to state what the defendant said. Defense counsel requests production of the letter and asks the court to admit it into evidence.

Federal Rule of Evidence 612 provides that an adverse party may require production of a writing or other item used by a witness to refresh memory, and the adverse party may use the writing or item in cross-examining the witness.

Federal Rule of Evidence 803(5) provides: Recorded Recollection. A record that: (A) is on a matter the witness once knew about; (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 the record itself may be received as an exhibit only if offered by an adverse party.

What is the correct ruling on defense counsel's request to admit the letter?

The letter may be read into evidence but not received as an exhibit, because Maria has adopted it as her present recollection and the content is now her own testimony.
The letter should be admitted as a full exhibit because Maria used it to refresh her recollection and then testified consistently with it; the letter is therefore a prior consistent statement.
The letter must be excluded because the best evidence rule requires the original conversation to be proved by the testimony of the person who heard it, not by a self-made summary.
The letter is not admissible as substantive evidence merely because it refreshed Maria's memory; however, defense counsel is entitled to have it produced and may use it in cross-examining Maria. (correct answer)

Explanation: When you see a question about a witness using a writing to refresh memory, think about two separate doctrines: Rule 612 (production and use in cross-examination) and Rule 803(5) (recorded recollection as a hearsay exception). They are often confused. Here, Maria used the letter to jog her memory and then testified from her refreshed recollection—she did not adopt the letter as her own prior recorded statement. The letter itself is not substantive evidence; it's just a memory aid. Defense counsel's request to admit it as an exhibit fails because Rule 803(5) only allows the record to be read into evidence (and received as an exhibit only if offered by the adverse party—but here the defense is offering it as substantive evidence, not as a hearsay exception, and Maria's testimony is already in). The correct ruling is that the letter is not admissible as substantive evidence merely because it refreshed Maria's memory, but defense counsel is entitled to production under Rule 612 and may use it in cross-examining her. Why the wrong answers fail: The first choice ("may be read into evidence but not received as an exhibit") misapplies 803(5)—that rule applies only if the witness's memory is not refreshed and the record is used as a substitute for testimony, not when the witness testifies from refreshed memory. The second ("prior consistent statement") is a misnomer—the letter was written before trial and is consistent, but it's not being offered to rebut a charge of recent fabrication, and a prior consistent statement is not automatically admissible as substantive evidence. The third ("best evidence rule") is a classic trap—the rule applies to proving the content of a writing, not a conversation; the letter is a summary of the conversation, not the original. Finally, the correct answer (the fourth) correctly distinguishes between the use of the letter as a memory refresher and its inadmissibility as substantive evidence. Study tip: Always ask "Did the witness actually recall the fact from refreshed memory?" If yes, the writing is not evidence—it's just a prop. Only when the witness still cannot remember does 803(5) allow the record to be read into evidence.

Question 8

Palmer sues Drayton for injuries from a car accident. Palmer calls Lopez, an eyewitness. Before Lopez's deposition, Lopez's lawyer gave her a one-page typed summary of an interview that Lopez had given to a claims adjuster six months earlier. Lopez read the summary to refresh her recollection about the sequence of cars before the deposition began. During the deposition, Drayton's lawyer asks Lopez whether she reviewed anything to prepare and then requests production of the summary. Palmer's lawyer objects.

Federal Rule of Evidence 612 provides:

(b) Adverse Party's Options. If an adverse party requests production of a writing or item used to refresh memory, the witness must be excused until it is produced. Unless it is produced, the court must strike the witness's testimony or declare a mistrial. If the producing party claims that the writing or item contains unrelated matter, the court must examine it in camera, excise any unrelated portion, and order that the rest be delivered to the adverse party. An adverse party may use the writing or item in cross-examining the witness.

Is Drayton's lawyer entitled to obtain the summary?

Yes, because Lopez used the summary to refresh her memory for the purpose of testifying, and Rule 612 makes the summary producible automatically once such use is shown.
Yes, but only if the court decides that justice requires production, because Lopez used the summary before the deposition began rather than while she was actually testifying. (correct answer)
No, because the summary was used before the deposition, not while Lopez was actually testifying, and Rule 612 gives no right to production for pre-deposition review.
No, because the summary is attorney work product prepared by Lopez's lawyer, and Rule 612 does not override work-product protection.

Explanation: This question tests FRE 612's distinction between refreshing memory on the stand and refreshing before testimony. When a witness uses a writing while actually testifying, an adverse party has a right to production once the writing is shown. But when the witness used the writing before testifying—even immediately before a deposition—Rule 612(a)(2) gives no automatic right. Production occurs only if the court decides that justice requires it. Because Lopez read the summary before the deposition began, Drayton can get it only through that discretionary route, so the answer is yes, but only if justice requires. The choice claiming production is automatic once refresher use is shown misstates the law: automatic production applies only to uses while testifying, not to pre-testimony use. The choice saying no because the summary was used before the deposition is also wrong: pre-testimony refreshment is not irrelevant; it is simply governed by the court's justice-requires standard. Finally, the work-product choice does not provide a categorical no. Even if the summary was prepared by Lopez's lawyer, work product does not automatically immunize a document once it has been used to refresh a witness's memory;a court can order production under Rule 612, and work-product concerns may be considered in deciding whether justice requires. Exam takeaway: For Rule 612 questions, first identify when the witness used the item. On-the-stand use means automatic production; pre-testimony use means discretionary production only if justice requires. Don't let "work product" or "before testimony" distract you from that timing distinction.

Question 9

A witness, Okafor, observed a delivery truck collide with a bicycle. At trial, Okafor has no memory of the truck's license plate or the name of the street where the collision occurred. Two years after the accident, Okafor wrote a letter to his brother describing the truck and the street. At trial, Okafor testifies that he remembers writing the letter and that he would not have written anything he did not believe was true. The plaintiff offers the letter under the recorded-recollection exception.

Should the court admit the letter?

Yes, because Okafor once had knowledge of the matters, the letter accurately reflects that knowledge, and Okafor has authenticated it by testifying that he wrote it.
Yes, because Okafor now has insufficient memory of the matters and the letter may be read into evidence even if not received as an exhibit.
No, because a letter to a relative is not a "record" within the meaning of the recorded-recollection exception, which is limited to business and official records.
No, because the letter was not made or adopted when the matter was fresh in Okafor's memory, as the recorded-recollection exception requires. (correct answer)

Explanation: Whenever you see a hearsay exception for recorded recollection, test every foundation element: the witness once knew the matter, the record was made or adopted when the matter was fresh in memory, the record accurately reflects the witness's knowledge, and the witness now has insufficient memory to testify fully. Here, the letter fails the freshness requirement. Okafor wrote it two years after the collision, which is far too late to say the street and truck details were still "fresh" in his memory. Even though he once knew the facts, lacks current memory, and can authenticate the letter, all elements must be satisfied—so the court should not admit it under Rule 803(5). The first wrong answer, "yes, because Okafor once had knowledge… and authenticated it," overlooks the missing freshness element; authenticating a document is not the same as showing it was made while his memory was fresh. The second wrong answer, "yes, because Okafor now has insufficient memory…," treats insufficient memory as sufficient by itself, but it is only one requirement and the record still must satisfy the other elements. The third wrong answer, "no, because a letter to a relative is not a 'record' limited to business and official records," misstates the rule: Rule 803(5) applies to any "record," including a personal letter, if the foundation is met. The strategy takeaway: do not confuse recorded recollection with refreshing recollection. If a writing merely refreshes a witness's memory, the witness can testify from revived memory; if the record is admitted under 803(5), it is read into evidence but not received as an exhibit unless offered by the adverse party.

Question 10

At trial, the prosecution calls Officer Bell. During cross-examination, Officer Bell cannot remember the license plate number of the vehicle he stopped. After a recess, he returns to the stand and testifies that he listened to the audio recording of his patrol-car microphone during the recess and now remembers the number. Defense counsel asks to inspect the recording.

Federal Rule of Evidence 612 provides:

(b) Adverse Party's Options. If an adverse party requests production of a writing or item used to refresh memory, the witness must be excused until it is produced. Unless it is produced, the court must strike the witness's testimony or declare a mistrial. If the producing party claims that the writing or item contains unrelated matter, the court must examine it in camera, excise any unrelated portion, and order that the rest be delivered to the adverse party. An adverse party may use the writing or item in cross-examining the witness.

Is defense counsel entitled to inspect the recording?

Yes, but only if the prosecution had previously listed the recording as an exhibit and disclosed it in discovery before trial.
No, because Rule 612 applies only to writings, and an audio recording is not a writing or item within the meaning of the rule.
Yes, because the recording is an "other item" Officer Bell used to refresh his memory while testifying, even though he listened to it during a recess. (correct answer)
No, because the recording was not used while Officer Bell was on the witness stand and the defense did not ask to see it before the recess.

Explanation: This question tests Rule 612's refreshed-recollection doctrine. When a witness uses a writing or other item to remember, an adverse party has the right to inspect it and use it in cross-examination—provided the witness used it while testifying or, if before testifying, when justice requires. Officer Bell, already on the stand, could not remember the plate. He listened to an audio recording during a recess and then returned to testify that he now remembered. That recording is an "other item" under Rule 612, not merely a "writing," and the recess did not end his testimony: he was still in the middle of being examined. Defense counsel is therefore entitled to inspect the recording and use it on cross-examination. The answer that conditions inspection on pretrial exhibit listing or discovery adds a requirement Rule 612 does not contain. The answer that Rule 612 applies only to writings ignores the rule's explicit "writing or other item" coverage, which plainly includes audio recordings. And the answer that the defense had to ask before the recess mistakes the timing: the defense could not know about the refreshment until Officer Bell revealed it, so a request when he returns is timely. Remember: whenever you learn a witness refreshed memory with anything—document, photo, recording—request production immediately; the rule is broad enough to cover nearly any item.

Question 11

At a trial arising from a traffic accident, the plaintiff calls Gina, who saw the collision. At trial, Gina remembers the make and color of the car and that the driver was wearing a red jacket, but she cannot remember the license plate number or the driver's face. The day after the accident, Gina's friend Ramon wrote a one-page memorandum describing the license plate number and driver's face, read it aloud to Gina, and Gina said, "That's exactly what I saw," and signed it. Gina testifies that the memorandum accurately reflects what she observed. The plaintiff offers the memorandum as an exhibit.

How should the court rule on the plaintiff's offer of the memorandum?

Exclude the memorandum because Gina has some memory of the accident, and the recorded-recollection exception applies only when the witness has no memory at all.
Admit the memorandum as an exhibit, because it meets all requirements of the recorded-recollection exception and Gina adopted it by signing it.
Permit the memorandum to be read into evidence by Gina, but refuse to receive it as an exhibit because the plaintiff, not the adverse party, is offering it. (correct answer)
Admit the memorandum as an exhibit only if the jury is instructed that it is not offered for the truth of the matters asserted.

Explanation: When you see a question about recorded recollection under Rule 803(5), check the three elements first, but then watch for the special exhibit rule—it's a classic trap. The rule has a built-in limitation: even if the record is admissible as a hearsay exception, the physical document itself can only be received as an exhibit if it is offered by an adverse party. Here, Gina's memorandum meets all three elements: she once knew the license plate and face, she adopted the memo by signing it after Ramon read it aloud (the matter was fresh), and she testifies it accurately reflects her observation. So the record is admissible. However, because the plaintiff is the one offering the exhibit, the court must permit the memorandum to be read into evidence but refuse to receive it as an exhibit. That is exactly what the correct choice states. The choice to exclude the memorandum because Gina has some memory is wrong—the rule does not require total amnesia; it only requires that the witness once knew the matter and now has insufficient memory to testify fully. The choice to admit the memorandum as an exhibit outright misreads the adverse-party-only restriction. The choice to admit it only with a limiting instruction that it is not for the truth mischaracterizes the exception—recorded recollection is a hearsay exception, meaning it is offered for the truth of the matters asserted, so no such limiting instruction is appropriate. Remember: 803(5) gives you reading rights for any party, but the exhibit itself is a prize only the adverse party can claim.

Question 12

A pedestrian sues the city for injuries from a pothole. Before trial, the city's maintenance supervisor met with the city attorney to prepare for her testimony. At trial, the supervisor testifies from memory about the condition of the road and never refers to any document. The pedestrian's attorney asks the court to order the city to produce any documents the supervisor reviewed during that preparation. The city responds that the supervisor did not use any document while testifying.

Which of the following facts, if true, would most strengthen the pedestrian's argument that she is entitled to the documents?

The supervisor's trial testimony is consistent with the incident report in every material respect.
The incident report was prepared by another city employee who investigated the pothole.
The incident report contains hearsay statements from another witness about the pothole's condition.
The supervisor read an incident report about the pothole during the meeting with the city attorney. (correct answer)

Explanation: When you see a discovery dispute over a witness's preparation materials, think of Federal Rule of Evidence 612: if a witness uses a writing to refresh memory before testifying, the court may require production if justice so requires. The key is whether the witness actually used the document. Here, the supervisor testifies from memory and never uses a document on the stand. That alone does not bar production, but the pedestrian needs to show the supervisor used a document to refresh her recollection during preparation. The fact that the supervisor read an incident report about the pothole during the meeting with the city attorney directly establishes that use. That is exactly what triggers the court's discretion to order production, even though the witness did not refer to it at trial. Each wrong answer misses that trigger. Consistency with the incident report in every material respect suggests the report exists, but it does not prove the supervisor read it or refreshed her memory from it. The report being prepared by another employee just shows who wrote it, not that the supervisor used it. The report containing hearsay from another witness is irrelevant to whether the supervisor relied on it during preparation — hearsay concerns admissibility, not the witness's use of the document. Strategy tip: on bar-exam discovery questions, separate "existence of a document" from "witness used the document to refresh memory." Only the latter triggers Rule 612 production.