Introduction

Refreshing a Witness's Recollection

Introduction

Imagine a witness to a robbery who, halfway through direct examination, cannot remember the make of the car that sped away. The lawyer holds the police report the witness signed a week after the event, and the report names the make. Two instincts collide here. Reading the report aloud to the jury would put an out-of-court statement in front of them in place of live testimony. Yet a witness who is stuck on a detail they once knew is not helped by silence, and a lawyer who simply asks the same question again gets the same blank answer.

The technique that resolves the collision is refreshing recollection. Counsel gives the witness something that may jog the memory, the witness looks at it silently, and the witness then testifies from a memory that has come back. The reason this is permitted is that the evidence remains the witness's own testimony, given under oath and open to cross-examination. The item shown is only a stimulus and is not offered to prove what it says. That is also why refreshing is a different thing from offering a document as evidence, a contrast the chapter returns to later.

Because the stimulus can shape what the witness says next, the opposing party has a stake in seeing it, and Rule 612 supplies that protection. When a writing is used to refresh, an adverse party is entitled to have it produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the testimony.¹ The disclosure removes a temptation: without it, a lawyer could use the writing to supply a version of events that the opponent never learns about and cannot test. The chapter proceeds in order. It begins with how the technique works and the courtroom steps that lay its foundation, then separates a refreshed memory from a recorded one. It ends with the adverse party's rights under Rule 612. The first question is what may serve as a stimulus at all.