MBE Evidence Practice Exam 2026 – The All-in-One Guide to Mastering Your Bar Exam Success!

The key idea is that FRE 803(5) lets a contemporaneous memorandum of a witness’s memory be used at trial as substantive evidence, even if it isn’t admitted as an exhibit. The memorandum must have been prepared at or near the time of the events by someone with knowledge, and it must accurately reflect what the witness knew at the time. If the witness cannot recall fully, the memo can be read into the record to prove the matter described. It isn’t required to be admitted as an exhibit, though it can be, if the party wants.

So the best answer is that the memorandum may be read into evidence without necessarily being received as an exhibit. It also helps explain why it can be used even when the witness is present and why a memo prepared after trial wouldn’t satisfy the timing requirement.