It’s common for witnesses forget facts while testifying—often due to nerves and sometimes due to selective memory. The good news is that you can use almost any item to refresh a witness’s recollection.
A common way to refresh a witness’s recollection is with a writing. Keep in mind that opposing counsel is entitled to inspect the document you want to use, cross-examine the witness about it, and introduce parts of it into evidence. Evid C §771. And don’t be tricked by the frequently made objection that a recollection cannot be refreshed unless the witness has testified that he or she cannot recall—this is not required under California rules.
When you have a “refreshing” document, first show it to opposing counsel and then consider having it marked for purposes of identification.
In contrast to past recollection recorded, when you’re using a document to refresh a witness’s recollection, you don’t need to offer into evidence the contents of the document you’re using and the document need not be:
- Prepared by the witness or at the witness’s direction;
- At or near the time of the occurrence;
- For purpose of recording the witness’s knowledge; or
- Admissible if made by the witness while testifying.
Here are the steps to take when you want to use a document to refresh a witness’s recollection:
- Ask the court for permission to approach the witness;
- Hand the document to the witness, identify it, and ask the witness to review it (or a specified portion of it);
- Ask the witness whether his or her recollection has now been refreshed.
- If it’s not refreshed: Consider whether the document can be authenticated as a past recollection recorded and the contents admitted into evidence;
- If it is refreshed: Go back and repeat the same question that earlier prompted the need to refresh, asking the witness to give a present recollection.
You can ensure that the witness, after his or her recollection has been refreshed, doesn’t simply read from the document by either taking back the document from the witness or asking the witness to turn the document face down before testifying.
Keep in mind that refreshed recollection should be used sparingly. Overuse may lead jurors to speculate that the witness is only testifying to the words in the report or deposition and lacks any independent recollection of the facts of the case. Encourage witnesses to refresh their memories before trial by reading depositions or other materials before taking the stand; thorough witness preparation may prevent the needless interruption of the flow of direct examination by repetitive refreshing of recollection.
Also, there’s a risk of using a document to refresh recollection: when a recollection has been refreshed, Evid C §771 is an extremely effective counter to the direct examiner by allowing opposing counsel to introduce into evidence relevant portions of documents that otherwise wouldn’t be admissible.
For step-by-step advice on refreshing a witness’s recollection on the stand, turn to CEB’s Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial). Also check out CEB’s Effective Introduction of Evidence in California, chapter 44.
Related CEB blog posts:
- When It’s OK to Lead on Direct
- 12 Tips for Direct Examination in Depo or at Trial
- Do’s and Don’ts on Direct
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