Definition
Recollection, in law, refers to a witness's actual memory of a fact or event — the subjective, mental act of calling something previously known back to conscious awareness. It is the foundation of testimonial competency: a witness testifies from recollection, not from inference or discovery.
The term carries specific procedural weight in two evidentiary contexts:
1. Present recollection: A witness's current, unaided memory of a fact at the time of testifying. This is the default and preferred basis for testimony.
2. Refreshed recollection (present recollection refreshed): A witness whose memory has lapsed may have it jogged by reviewing a document, object, or other stimulus. After reviewing the stimulus, the witness testifies from their own revived memory — not from the document itself. The document is the trigger, not the evidence.
3. Past recollection recorded: When a witness cannot recall a fact even after attempted refreshment, a prior written record made by the witness (or adopted by them) when the matter was fresh may itself be read into evidence. Here the writing substitutes for recollection rather than restoring it.
Recollection is also a threshold concept in new trial doctrine. A party claiming newly discovered evidence must distinguish between evidence they genuinely did not know existed (discovery) and evidence they knew but failed to remember (a lapse of recollection). Only the former supports a new trial motion.
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Common Language
Modern common usage (Wiktionary): The act of recalling something to memory; the power of remembering; something called to mind; a reminiscence.
Historical common usage (Webster's 1913): The act of recollecting, or recalling to the memory; the operation by which objects are recalled; reminiscence; remembrance. Also, the period within which things can be recollected.
The gap between common and legal meaning is narrow in one direction and significant in another. Ordinary usage treats recollection and memory as interchangeable. Legal usage does not — it draws a precise line between recollection (the retrieval of something previously known) and discovery (encountering something unknown). This distinction has real procedural consequences: courts will not grant a new trial merely because a witness or party "forgot" something they could have remembered with due diligence. The common-language looseness about memory versus knowledge does not survive contact with the new trial doctrine.
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Common Confusion
RECOLLECTION vs. DISCOVERY: In procedural law, these terms are opposites, not synonyms. Discovery concerns facts previously unknown to the party; recollection concerns facts previously known but temporarily forgotten. Bouvier's draws this distinction directly: a want of recollection of a fact that could have been remembered with due attention is not a basis for a new trial, because such a want can always be feigned and is difficult to disprove. Researchers encountering new trial motions grounded in "newly discovered evidence" should look carefully at whether the court treated the evidence as truly unknown or merely forgotten — courts have consistently denied relief in the latter case.
PRESENT RECOLLECTION REFRESHED vs. PAST RECOLLECTION RECORDED: These doctrines are frequently collapsed in casual usage but operate differently. In the first, the witness testifies from restored memory; the refreshing document is not admitted for its contents. In the second, the witness cannot remember even after refreshment; the document itself comes in as a hearsay exception. The distinction matters for authentication, foundation requirements, and what the jury ultimately receives.
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Why It Matters in Research
The evidentiary doctrines built around recollection — present recollection refreshed and past recollection recorded — appear under varying names in historical sources and older treatises. Researchers working in pre-twentieth-century materials may find "recollection refreshed" used interchangeably with "memory refreshed" or "revival of memory," without the modern doctrinal precision separating present from past recollection. The Federal Rules of Evidence codified the past recollection recorded doctrine (Rule 803(5)) and the refreshing testimony procedure (Rule 612), but the earlier case law uses looser vocabulary.
In new trial research, the recollection/discovery distinction is a hidden trap. A motion for new trial based on "newly discovered evidence" that a court denies on the ground that the evidence was known but forgotten will not always flag itself clearly as a recollection case. Bouvier's note — citing the difficulty of disproving a claimed want of recollection — signals that courts treated the distinction as a prophylactic rule against abuse, not just a definitional nicety. Researchers tracing new trial doctrine should watch for this reasoning even when the word "recollection" does not appear in the headnote.
Jurisdictional vocabulary also varies. Some states use "past recollection recorded" as a freestanding hearsay exception label; others fold it into broader recorded recollection or business records frameworks. The underlying concept is consistent even when terminology shifts.
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Historical Dictionary Support
Bouvier's entry on recollection is brief but analytically pointed. It defines the term primarily through contrast: recollection is not discovery. Where discovery addresses the unknown, recollection addresses the known — and the legal system's tolerance for forgetting is low. Bouvier cites the practical concern that a want of recollection is easy to allege and hard to disprove, making it an unsuitable foundation for new trial relief.
What Bouvier's does not address is the evidentiary doctrine of refreshing recollection — the procedural machinery for using documents or other stimuli to restore a witness's memory during testimony. That doctrine was well established in common law courts by Bouvier's time but receives no dedicated treatment here. Researchers relying solely on Bouvier's for recollection doctrine will find the new trial angle well covered but the testimonial mechanics entirely absent.
No substantive divergence from modern doctrine on the core recollection/discovery distinction — that line has remained stable.
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Jurisdictional Note
The past recollection recorded doctrine and present recollection refreshed procedure operate in all American jurisdictions, but the precise foundation requirements — how fresh the memory must have been when the record was made, who must have made or adopted the record — vary by state rule and case law. Federal practice is governed by FRE 612 and FRE 803(5); state analogs track closely but not uniformly.
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Encyclopedia Cross-Reference
See Law Mind Encyclopedia: Present Recollection Refreshed; Past Recollection Recorded; New Trial (Newly Discovered Evidence)
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