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Fisher v. Swartz

Supreme Judicial Court of Massachusetts, Dukes County
130 N.E.2d 575 (1955)
ELI5:

Rule of Law:

A writing that constitutes a witness's past recollection recorded may, at the discretion of the trial judge, be admitted as substantive evidence.


Facts:

  • A plaintiff furnished labor and materials to repair a house owned by the defendant.
  • The plaintiff created an itemized statement with over one hundred charges for the labor and materials.
  • The plaintiff sent the original of this statement to the defendant.
  • The plaintiff kept a carbon copy of the statement for his records.

Procedural Posture:

  • The plaintiff sued the defendant in a trial court to recover payment for labor and materials.
  • At trial, the plaintiff used a carbon copy of an itemized statement to refresh his memory while testifying about over one hundred charges.
  • The plaintiff's counsel offered the carbon copy as evidence.
  • The defendant's counsel objected to its admission.
  • The defendant, who had the original statement in court, refused the plaintiff's request to produce it.
  • The trial judge admitted the carbon copy into evidence over the defendant's objection.
  • A jury returned a verdict in favor of the plaintiff.
  • The defendant appealed the trial court's evidentiary ruling to the appellate court.

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Issue:

Is a written memorandum, used by a witness as a record of past recollection, admissible as substantive evidence?


Opinions:

Majority - Spalding, J.

Yes. A writing that qualifies as a past recollection recorded is admissible as substantive evidence at the trial judge's discretion. The court distinguishes between 'present recollection revived,' where a writing stimulates a witness's memory, and 'past recollection recorded,' where a witness has no present memory but can attest to the accuracy of a document they previously created. Acknowledging its prior contrary ruling in Bendett v. Bendett, the court now overrules that precedent, stating that refusing to admit the document itself after it has been read into evidence is to press a 'legal fiction too far.' Admitting the writing aligns with the prevailing view in other jurisdictions and with the opinions of leading evidence scholars. This rule is not absolute; the trial judge retains discretion to exclude the writing if its probative value is outweighed by the danger of undue prejudice or misleading the jury. Because the defendant possessed the original document in court and refused to produce it, the plaintiff was properly allowed to introduce the carbon copy as secondary evidence.



Analysis:

This decision marks a significant change in the jurisdiction's evidence law by explicitly overruling Bendett v. Bendett. It modernizes the rule for 'past recollection recorded' by aligning it with the majority rule in the United States and the Model Code of Evidence. By eliminating the 'squeamish' distinction between allowing a witness to read a document into the record and admitting the document itself, the ruling grants trial judges greater discretion and promotes judicial efficiency. This change simplifies trial practice and recognizes that the writing itself is often the most reliable evidence when a witness's memory has faded.

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