Doty v. Elias, 733 F.2d 720 

U.S. Court of Appeals for the Tenth Circuit

1984

Chapter

5

Title

Evidence A Contemporary Approach

Page

108

Topic

Witnesses

Quick Notes

The schedules merely helped them recall quickly, without repetition of the mental process of organizing their memories, the approximate dates of specific occurrences.

Book Name

Evidence: A Contemporary Approach.  Sydney Beckman, Susan Crump, Fred Galves.  ISBN:  978-0-314-19105-2.

Issue

o         Whether the trial court erred in computing the number of hours plaintiffs worked?  No.

o         Whether the hearsay exception for past recollection applies?  Yes, to refresh memory.

Procedure

Trial

o         Trial Court permitted the Dotys to refer to the schedules occasionally during their testimony.

Appellant

o         Affirmed.  Trial court did not abuse its discretion in permitting the Dotys to refer to the writings.

Facts

Discussion

Key Phrases

Rules

Pl Doty

Df Elias

Party Description

Brought Suit

o         Becky Doty, Vicky Doty, David Price, and Roy Price brought this action against Eddy Elias under the Fair Labor Standards Act, 29 U.S.C. 201-19.

Alleged Violation

o         Alleging that Elias violated the Act's minimum wage and overtime compensation provisions.

Eddys Steakhouse

o         Plaintiffs formerly worked as waitresses or waiters at Eddy's Steakhouse

Tips  Only

o         None of the plaintiffs received an hourly wage or salary while working at the restaurant.

o         Instead, Elias permitted plaintiffs to keep all of the tips they received.

Bench Trial Found Violation

o         After a bench trial, the district court found that plaintiffs were Elias' employees within the meaning of the Act and that Elias had violated the Act's minimum wage provision

Court Awarded

o         The court awarded plaintiffs unpaid wages and prejudgment interest but refused to award liquidated damages.

Appealed

o         Both parties appealed.

Elias Argues (refer to notes during testimony)

o         Elias argues that the trial court committed reversible error by permitting Becky Doty and Vicky Doty to refer to notes during their testimony.

Department of Labor Representative (Compile Schedule)

o         Several months after the Dotys stopped working at the restaurant, a representative of the United States Department of Labor asked the Dotys to compile a schedule of the times they had worked for Elias.

o         Using a calendar and relying largely upon memory, they did so. Plaintiffs did not offer the schedules into evidence or read them into the record.

Trial Court (Permitted referral to schedules)

o         However, the trial court permitted the Dotys to refer to the schedules occasionally during their testimony.

Elias Argues (Inadmissible, Constituted hearsay)

o         Elias argues that the Dotys' testimony from the schedules was inadmissible because it constituted hearsay under Fed. R. Evid. 801(c)

o         Does not fall within the hearsay exception for past recollection recorded, Fed. R. Evid. 803(5).

Plaintiffs Content (Properly Refreshed Memories, which 612 permits)

o         The trial court properly permitted the Dotys to refer to the schedules to refresh their memories as Fed. R. Evid. 612 permits.

Court Usage of Notes merely to refresh memory

Refreshing During Testimony Rule

o         Where the trial court permits a witness to use notes during his or her testimony to refresh memory, the testimony is not hearsay, and its admission is not error

Distinction Between Present Recollection Revived and Past Recollection Recorded

o         The primary difference between present recollection revived and past recollection recorded is the ability of the witness to testify from present knowledge:

Present Recollection Revived

o    where the witness' memory is revived, and he presently recollects the facts and swears to them,

Past Recollection Recorded

o    the witness who cannot directly state the facts from present memory and who must ask the court to accept a writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true.

Testimony > Refreshing Recollection > Memory Aids > Writings

o         The trial judge enjoys broad discretion in determining whether a witness is using a writing to refresh memory or offering a writing for the truth of something the witness can no longer recall.

Courts Summary

o         Both at the time they compiled the schedules and at the time of trial the Dotys apparently recalled the number of weeks they worked for defendant and approximately how many hours per week they worked.

Merely to help recall quickly

o         The schedules merely helped them recall quickly, without repetition of the mental process of organizing their memories, the approximate dates of specific occurrences.

Approximations from Memory

o         The trial court understood that the schedules were approximations from memory and it treated them as such.

Courts Holding

o         Thus, we hold that the trial court did not abuse its discretion in permitting the Dotys to refer to the writings.

Doty v. Elias Rules

The schedules merely helped them recall quickly, without repetition of the mental process of organizing their memories, the approximate dates of specific occurrences

Possible Questions

         Do you remember how many hours you worked?  No.

         Did you make a schedule?  Yes.

         Would seeing the schedule refresh your memory?  Yes.

         Please read the document to yourself silently, and put it face down when you are finished.

Refreshing During Testimony Rule

o         Where the trial court permits a witness to use notes during his or her testimony to refresh memory, the testimony is not hearsay, and its admission is not error

Distinction Between Present Recollection Revived and Past Recollection Recorded

o         The primary difference between present recollection revived and past recollection recorded is the ability of the witness to testify from present knowledge:

Present Recollection Revived

o    where the witness' memory is revived, and he presently recollects the facts and swears to them,

Past Recollection Recorded

o    the witness who cannot directly state the facts from present memory and who must ask the court to accept a writing for the truth of its contents because he is willing to swear, for one reason or another, that its contents are true.

Testimony > Refreshing Recollection > Memory Aids > Writings

o         The trial judge enjoys broad discretion in determining whether a witness is using a writing to refresh memory or offering a writing for the truth of something the witness can no longer recall.

Rule

Rule 612. Writing Used to Refresh Memory

         Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either--

o    (1) while testifying, or

o    (2) before testifying,

          if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have

o     the writing produced at the hearing,

o    to inspect it,

o    to cross-examine the witness thereon, and

o    to introduce in evidence those portions which relate to the testimony of the witness.

         If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall

o    examine the writing in camera [in private with judge],

o    excise any portions not so related, and

o    order delivery of the remainder to the party entitled thereto.

         Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal.

         If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Class Notes