The Pause that Refreshes

October 12, 2016 § Leave a comment

In a divorce case, your client Harold is testifying about the condition of the former marital residence when he returned home from work and discovered that Maude, his wife, had left him and taken many household items with her. Now, when you ask Harold to list the items taken, he draws a blank:

Harold: Well, I remember the fireplace logs and the stuffed squirrel lamp, but my memory’s kind of hazy about the rest.

“No problem,” you think, recalling that Harold told you he made a complete list later the evening of the day in question, after he had time to take stock of what was missing. You sift through the bales of paper on the courtroom table and find the dog-eared document. You snatch it up and hand it to him.

You: Here; look at this paper. Does that help you recall?

Counsel opposite: Objection. That document is not in evidence. Best Evidence Rule. Hearsay. Privileged. Unduly prejudicial. Surprise.

“Yikes,” you think. What did I do wrong?

When a witness is unable to recall, your first remedy is MRE 612. That rule provides that a witness may use a “writing, recording or object” to refresh his memory, if by referring to the item it refreshes his present ability to recall. But there is a proper way to do it:

  1. You have to establish that the witness is unable to recall.
  2. You must try to jog the witness’s memory before resorting to refreshing memory. In federal court, leading questions are permitted; I’m not so sure of authority in state court, but it seems that this would be “necessary to develop the witness’s testimony” for which leading is permitted per MRE 611(c).
  3. If the witness still can not recall, ask him whether there is anything to which he could refer to refresh his recollection.
  4. Hand the witness the item and ask him to study or read it silently. After he has had a chance to do so, ask him if he now has a recollection independent of the writing or other item. If yes, his recollection has been refreshed, and you may then question him as to that recollection. Take the object away and question him based on his newly-refreshed recollection. If you have gone through this and he still has no independent recollection, you have to proceed under MRE 803(5), as explained below.

Notice that no foundation for the document or thing has to be established, other than that the witness does not recall and needs to refer to a given object. The thing does not need to be admissible in evidence; however, counsel opposite may review the entire item that the witness referred to, and may use it in cross-examination and may demand that all or part of it be introduced into evidence.

Some older lawyers still (after 31 years) still insist that you have to lay a non-hearsay foundation for the document or thing, but that requirement went out the window when the MRE was adopted in September, 1985. If you run into this particular buzz-saw and have a puzzled-looking judge, simply refer the judge to the fifth paragraph of the Advisory Committee Notes (former known as “Comments”) to MRE 612, which offers a helpful explanation of the distinction.

Some lawyers confuse MRE 612 with the rule for Recorded Recollection, which is MRE 803(5), and is an exception to the hearsay rule. It does require that you lay a foundation. But remember, you don’t need to go to 803(5) if the witness’s recollection is refreshed by looking at the object.

If you’ve reached Step 4, above, and your witness still is stuck, here is how to avail yourself of MRE 803(5):

  1. If you establish that there is a record (i.e., memorandum, report, data compilation, electronically stored information, or the like) that pertains to a matter the witness once knew about but can not now recall well enough to testify fully and accurately, and
  2. The record was made or adopted by the witness at a time when the matter was fresh in his memory; and
  3. It accurately reflects the witness’s memory,

Then, the witness may testify from it and even read all or part into the record, but it may be received into evidence only if offered by the adverse party. The classic situation where we encounter this in chancery is a private detective who has notes she made during and shortly after surveillance and now, two years later, has no clear recollection of dates, times, and other details.

I hope this helps clear up some confusion on this point. I sometimes find myself squirming along with attorneys struggling to figure out how to help the witness over the hump in the face of objection on top of objection.

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