Concept
How Refreshing Works
Refreshing recollection
How Refreshing Works
The witness in the opening example cannot name the getaway car, and the report that names it sits in counsel's hand. The technique that lets counsel use it without simply reading it to the jury rests on one idea: the item shown to the witness is a memory jogger, and the witness's revived memory is the evidence. Anxious witnesses forget things they actually know, and a familiar image or phrase can bring the memory back through association, the way one part of an experience helps a person retrieve other parts.1 Because the memory belongs to the witness once it returns, the testimony is live, sworn, and open to cross-examination. That is why refreshing does not need to satisfy any hearsay exception.2
A comparison shows where the line falls. Suppose a witness says she cannot recall who else attended a meeting, silently reads her own notes, says her memory is now refreshed, and then names the attendees from memory. Her testimony is proper, and the notes are never received as evidence. Now suppose that after looking at the notes she reads them aloud, or admits she remembers nothing and is only repeating what is written. The testimony no longer comes from her memory, and what the jury would be hearing is the writing itself. The proponent would then be getting hearsay in under the label of refreshing.3
The Federal Rules say little about the technique. No provision authorizes it, but it was well accepted at common law and remains in wide use.4 Rule 612 speaks only to a writing used to refresh, and a leading question used for the same purpose falls under Rule 611(c).5 The three parts below take the technique in order: what may serve as a stimulus, the steps counsel follows in court, and the judge's control over the process.
Any Item May Refresh
The stimulus can be almost anything. Counsel may show the witness a writing, play a recording, or use a photograph, a map, a song, or even a scent, and any of these is fair game if it revives the memory.6 The reason lies in how memory works. Association can be triggered by many kinds of cues, and the law has no way to predict which cue will unlock which witness. In practice writings are the usual choice, and the writing is often a prior statement of the witness, though lawyers rarely bring an opera singer to the courtroom.7
Because the item is never offered as proof, the restrictions that govern a recorded memory do not apply to it. Under the older practice the memorandum did not have to be written by the witness or at her direction, did not have to be made close in time to the event, and did not have to be accurate or independently admissible.8 Those limits belong to the separate hearsay exception for recorded recollection, and the two practices became confused when both carried the name "refreshing." Suppose a witness reads a report written by a fellow officer, and it brings back her own memory of the scene. The report need not satisfy any hearsay exception, because it is not evidence. Her renewed memory is the evidence.
A witness who looks again at the reminder during testimony does not necessarily lack a present memory.9 A witness who consults the committee minutes once, then recalls the discussion and the vote, is testifying from memory even if she glances back at the minutes now and then.
Foundation Steps in Court
The courtroom procedure is designed so that the jury never hears the contents of the stimulus unless the witness's memory actually returns. Rule 103(c) requires that proceedings be conducted so as to prevent inadmissible evidence from being suggested to the jury, and handing a writing to the witness to read silently satisfies that mandate easily.11 The steps run as follows.
The cite for the marking step is the same description of the exhibit's role: once it has been marked and shown to the opponent, it has served its purpose, and the examiner may not admit it.12 If the witness says her memory has not been refreshed, neither counsel nor the witness may read the writing aloud before the jury.13 Reading it aloud would defeat the reason for silent review, since the jury would then hear the out-of-court statement anyway.
The first step is the one that varies in practice. Some authority says refreshing is proper only after the witness says her memory is exhausted, so that a flat answer such as "nothing else was said" forecloses it. Other decisions allow refreshing even after a positive but surprising answer, because a witness may believe she remembers everything and then recall more on seeing the memorandum.14 Counsel can often avoid the dispute by building the lack of recollection into the question, as in "Do you recall whether anything else was said?"15
Leading questions work as a stimulus too, within limits. When the forgotten matter is minor, such as which direction a street runs, counsel may lead in open court. A question that suggests something else happened without saying what, such as asking whether anything was said about the proposed merger, is also proper.16 When the matter bears directly on the outcome, as with a statement showing the defendant's guilt, counsel may not put the content of the alleged statement before the jury in a leading question.17 The proper course there is to use a writing or to put the statement in writing and proceed silently.
Judicial Control and Abuse
The technique carries a built-in risk that the judge must watch. A suggestible witness may repeat what she has just read, and sincerity does not prove accuracy, because the feeling that "it all comes back to me now" can accompany a memory of something that never happened.19 The danger is greatest when the item describes the event and could not come in on its own, since a party could then use the witness as a conduit for it.
Whether the item has in fact refreshed memory is a preliminary question for the judge under Rule 104(a). The judge must decide whether the witness is testifying from a revived memory or is merely reciting the item, which would mean the party is engineering the introduction of hearsay through the guise of refreshing.20 That judgment is often hard, because a witness may be unable to tell whether she remembers the event or only the item. When the judge is in doubt, the usual course is to let cross-examination test the claim and to leave the jury to decide whether the witness has a genuine memory.21
If the judge concludes that memory has not been restored, the witness's testimony cannot stand as her own, because the real evidence would then be the reminder itself.22 Even when refreshing succeeds, the proponent still may not offer the item in evidence. The party who called the witness may admit it only if it is independently admissible under the hearsay rules, since memoranda used to refresh are memory aids and not substantive evidence.23 The opposing party's access to the item is a separate safeguard, and the later section on Rule 612 takes it up.
Any Item May Refresh
The stimulus used to revive a memory can be almost anything, because memory works by association. Retrieving one piece of an experience tends to bring back other pieces from the same moment, and a new sensation can call up earlier similar events.25 A faded photograph, a few bars of a song, or the smell of hickory smoke may therefore unlock a fact that direct questioning could not. The law cannot predict which cue will work on which witness, so it sets no list of approved items and asks only whether the item genuinely is calculated to revive the witness's recollection.26 In practice a writing is the usual choice, but a recording, a map, or an image qualifies on the same terms.
The item is shown to the witness and never offered to the jury as proof, so the requirements that protect a writing relied on as evidence have no work to do. The writing need not have been prepared by the witness or at her direction, and it need not have been made at or near the time of the event.27 It also need not be accurate or independently admissible.28 The Original Writing Rule, Rule 1002, does not apply either, which means a copy will serve and the proponent need not account for the original.29 Stricter conditions about authorship and timing belong to the hearsay exception for recorded recollection, where the writing itself becomes evidence and must be trustworthy enough to carry that weight. They spilled over into refreshing only because both practices were once called by the same name.30
A fair objection is that a liberal rule leaves room for suggestion, since a witness who reads a fact may sincerely come to feel that she remembers it. Most courts accept that risk because other safeguards address it. The judge decides under Rule 104(a) whether the item actually refreshed memory and may also restrain the technique under Rules 403 and 611(a), while the opponent may inspect the item and test the witness's claim on cross-examination.31 Supervision of the process takes the place of limits on the kind of item.
Two situations show where the rule applies and where it stops. Suppose an officer on the stand cannot recall the license plate of a suspect's car. Counsel hands him a report written by a different officer, full of statements from bystanders, and the officer reads it silently, says his memory is restored, and then gives the plate number from memory. The report is hearsay and was written by someone else, yet it served properly because it was only a stimulus. Now suppose counsel, having finished with the witness, tries to offer that report as an exhibit because the officer looked at it. The offer fails, since using an item to refresh does not make it substantive evidence, and the party who called the witness may admit it only if it is independently admissible under the hearsay rules.32 The same item passes the first test and fails the second, because the first asks whether it jogged memory and the second asks whether it can prove its contents.
Only one inquiry about the item remains open, which is whether it genuinely revived the witness's memory. If the contents have no apparent connection to the fact the witness claims to remember, the judge may find that refreshing did not occur and need not accept the witness's word for it.33 The cross-examiner may also use the lack of a connection to attack the plausibility of the claim.34
Foundation Steps in Court
The courtroom procedure for refreshing is built so that the jury hears what the stimulus says only if the witness's own memory actually returns. Rule 103(c) requires that proceedings be conducted so as to prevent inadmissible evidence from being suggested to the jury by any means, including questions asked in the jury's hearing. When the stimulus is a writing, handing it to the witness with a request to read it to herself satisfies that requirement without difficulty.36 That is the reason the technique follows a fixed order, which can be run as a sequence on any set of facts.
Each step has its own job. The lapse in step one shows there is something to refresh, and a witness who simply testifies fluently needs no reminder. The silent review in step three keeps the contents away from the jury. The question in step four matters most, because the witness's statement that her memory has returned is what turns a document that might be hearsay into a mere stimulus. Without it, counsel could script the testimony by putting a writing in the witness's hands and asking her to confirm what it says. The final repetition of the original question confirms that the evidence is the witness's answer and not the paper.37
The path splits at step four. Suppose a paralegal-turned-witness testifies that she cannot remember the date a contract was signed, reads her calendar entry silently, says it brings the date back, and then states the date from memory. The foundation is complete. Now suppose she reads the same entry and says it does not help. Neither counsel nor the witness may then read the writing aloud before the jury.38 Reading it aloud would put the out-of-court statement in front of the jury through the side door, and the only difference from offering it as an exhibit would be the label. A witness whose memory has not been refreshed has nothing further to say on the point, and counsel moves on.
The first step is the one on which courts differ. Some authority holds that refreshing is proper only after the witness testifies that her memory is exhausted, so that a categorical answer such as "nothing else was said" forecloses the technique. Other decisions allow refreshing even after a positive but unexpected answer, reasoning that a witness may believe she remembers everything and then recall more on seeing the memorandum.39 The more flexible view fits how memory works, since a witness cannot always tell what she has forgotten. Counsel can often avoid the dispute by building the lapse into the question itself, as in "Do you recall whether anything else was said?"40
A leading question can also serve as the stimulus, and it falls under Rule 611(c) rather than Rule 612.41 Whether counsel may use one depends on how much the forgotten point matters. When the witness cannot recall a preliminary or minor detail, such as which direction Main Street runs, counsel may lead in open court and supply the answer. A question that suggests something else happened without saying what it was is also proper. If a witness answers "Not that I can recall" to "Was anything else said?", counsel may ask, "Was anything said about the proposed Acme merger?"42
The answer changes when the forgotten matter is significant in the case. Suppose the prosecution has called a witness who now cannot recall a statement bearing directly on the defendant's guilt. The prosecutor may not recite the content of that statement in a leading question before the jury.43 The reason is that counsel's spoken words would then do what the witness's testimony should do, and the jury would hear the statement as counsel's assertion with no memory behind it. Suggestion is most harmful on contested facts, where a witness who is unsure may adopt whatever she is handed. On an uncontested detail the same suggestion risks almost nothing. The proper course for an important statement is to use a currently existing writing or other item, or to reduce the oral statement to writing, and then proceed silently as above. On rare occasions the court may excuse the jury and let counsel try the refreshing outside its hearing. In every case the original non-leading question is repeated before the jury only after the witness says her memory has in fact been refreshed.44
Judicial Control and Abuse
Because almost anything may serve as a stimulus, and because the item need not be accurate or admissible, the rules place no limit on what counsel may show a witness. The protection against abuse therefore has to come from the judge's supervision of how the technique is used. The danger is that a witness will repeat what she has just read and call it memory, so that the proponent gets the contents of an inadmissible writing before the jury under the label of refreshing.46 The judge has several tools against this: a preliminary finding on whether memory was actually revived, discretion to bar the technique, control over whether the witness keeps the writing in hand, and the power to reject testimony that is only recitation. The same discretion lets the judge relax the usual restraints when a witness has to consult a long record.
The first tool is the preliminary question under Rule 104(a), which asks whether the item in fact refreshed the witness's memory. The judge need not accept the witness's statement that her memory has returned. When the contents of the item have no apparent connection to the fact she claims to remember, the judge may find that refreshing did not occur.47 A second tool is available even when the item did refresh. Under Rules 403 and 611(a), the judge controls the manner of examination and may decline to permit the memory aid when the danger of undue suggestion substantially outweighs its probative value.48 These powers exist because suggestion is a real hazard. A witness who sincerely feels that it all comes back to her may be remembering something that never happened, and the item that prompted the feeling cannot tell the judge which it was.
The judge can also change how the test is run. The court may require the witness to read the writing to herself and give it up before she answers any question.49 This works as a test because a witness whose memory has really been revived can answer without the paper in front of her. A witness who cannot go on without it has shown that the writing, not her memory, is supplying the testimony. If the judge concludes that this is what happened, the court has considerable discretion to reject the testimony on the ground that the writing did not revive her recollection.50 The testimony then cannot count as her own evidence, since what the jury would be hearing is the reminder.51
The judgment is often hard, because a witness may be unable to tell whether she remembers the event or only remembers the item. When the judge is in doubt, the usual course is to let cross-examination challenge the claim of refreshed memory and to leave it to the jury to decide whether the witness has a genuine memory of the events.52
The gatekeeping power has a limit, because a flat rule that the witness must put the writing away once refreshed would be too rigid. Some matter is so long or detailed, such as dates, dollar figures, or serial numbers, that even a witness with a vivid memory could not recite it unaided. In that situation the court frequently allows her to consult the writing as she speaks.53 The practice is so common with expert witnesses that counsel will often simply tell a physician early in the examination to feel free to consult her medical records. The judge keeps discretion here instead of a categorical rule, because a witness may remember the substance and still need the paper for the particulars.54
Two witnesses show where the line falls. Suppose a doctor testifies about the structure of a patient's treatment, explains from her own knowledge what the readings meant, and glances at her chart for the exact numbers. She is using the writing for detail, and the judge may properly allow it. Now imagine a witness who says he has no memory of a meeting and then answers every question by reading from a memorandum. The writing is doing the work of memory, and the judge may find that no refreshing occurred and strike or exclude the testimony. The difference between the two lies in whether the witness's own recollection carries the testimony or the document does.
A finding that memory was not revived does not necessarily leave the proponent with nothing. It may open the way for the writing to come in under the hearsay exception for recorded recollection in Rule 803(5), if that rule's own requirements are met.55 That fallback is the subject of the next section, where the writing itself becomes the evidence and must satisfy conditions that refreshing never requires.