Federal Rule of Evidence 803(5) or a comparable State rule creates a hearsay exception for a memorandum or record concerning a matter about which a witness once had knowledge but now has insufficient recollection to enable the witness to testify fully and accurately, shown to have been made or adopted by the witness when the matter was fresh in the witness' memory and to reflect that knowledge correctly.

United States v. Porter, 986 F.2d 1014, 1018 (6th Cir. 1993) (convictions for conspiracy to possess and distribute cocaine, receive explosives, forcing a minor to help avoid capture, receiving explosives while using controlled substance, and distributing drugs to persons under 21; defendant asserted...The marital testimony privilege -- the adverse spousal testimony privilege -- begins with marriage, and the privilege terminates when the marriage terminates.

Mahone v. Lehman, 347 F.3d 1170, 1173-1174 (9th Cir. 2003) (holding, in plaintiff inmate's civil rights action against defendant prison officials, that the psychiatrist's opinion was inadmissible hearsay because the....A statement can be hearsay only if the statement is "offered to prove the truth of the matter asserted." The purpose for which a statement is offered depends on the purpose of the offeror of the statement. Hence, a statement is offered to prove the truth of the matter asserted if the offeror (normally trial counsel) seeks to use the statement to show that the matter or proposition asserted by the declarant (the maker of the statement) is in fact true.

Cf. Cooper v. Oklahoma, 517 U.S. 348, pin? (1996) (state requirement that criminal defendant establish his or her incompetence to stand trial by clear and convincing evidence violate federal constitutional due process guarantee; the Court's reasoning rests on the...The government can have the burden of proof on factual issues other than the essential elements of the crime charged and the government's burden of persuasion on such "collateral" issues can be and often is less than proof beyond a reasonable doubt. Conversely, sometimes a criminal defendant rather than the government has the burden of proof and persuasion with respect to factual issues that arise under legal rules and requirements apart from the essential elements of the crime charged; for example, a defendant may have the burden of establishing a defense such as duress.