February 27, 2014 § 3 Comments
The forgetful witness can be the bane of even the most accomplished barrister. Faced with what could prove to be a fatal memory lapse, lawyers twist themselves into proverbial pretzels cajoling, wheedling, leading, suggesting, and — when those ploys don’t work — yelling, at witnesses whose memories somehow have escaped them altogether.
To compound matters, counsel opposite, perhaps stimulated by the scent of blood in the water, pounces shark-like with a confounding flurry of objections, insisting that since the witness says she does not remember, no further questioning on the point should be allowed.
It doesn’t have to be so complicated, however.
Mississippi law has long recognized the right of a witness to have her memory refreshed, and our law has allowed anything to be used to refresh independent recollection. Refreshing recollection is not limited to written documents. As MRE 612 states “If a witness uses a writing, recording or object to refresh his memory for the purposes of testifying …” Or, as a law professor eloquently put it, you can use a pencil or a flower pot, if that will do the job.
Bear in mind that the process of refreshing recollection is intended to restore the witness’s independent recollection of a matter. It is not a process of educating a witness about matters beyond his ken, nor is it a backdoor path to admission of an otherwise inadmissible item. Once the witness’s recollection has been restored, the witness continues her testimony based on her now-restored recollection, independent of the refreshing item.
Here are the proper steps:
- Establish that the witness is unable to recall a particular thing.
- Counsel may then use leading questions to refresh the witness’s memory (e.g., “Ms. Jones, don’t you recall telling me last week about the amount of money you deposited into that account?”) See, e.g., James v. State, 86 So.3d 286 (Miss. App. 2012). Also, whether to allow leading questions is entirely within the trial court’s discretion. Dorrough v. State, 812 So.2d 1077 (Miss. App. 2001).
- If the witness still can not recall, counsel may then show the witness the writing, recording or object, which the witness reads or looks at silently. An example: “Ms. Jones, let me hand you this deposit slip, and ask you to read it to yourself.”
- Now the lawyer asks again if the witness now remembers after looking at the writing.
- If the witness responds that she now recalls independently of the writing, her recollection has been refreshed and she may testify to that independent recollection, ideally not using the writing, recording or object further. I say ideally because there are plenty of reported cases in which a police officer, or deputy, or dispatcher has been allowed to continue to use case reports and notes after having recollection refreshed. See. e.g., King v. State, 615 So.2d 1202 (Miss. 1993).
- If the witness still can not recall after looking at the writing, then the lawyer may have to resort to MRE 803(5), which we will look at in a later post.
MRE 612 requires that the opposing party be provided with a copy of the item if it is used for refreshing memory while testifying, and to cross examine the witness about it, and to have relevant portions admitted into evidence. If, on the other hand, the witness uses an item to refresh before testifying, then it is within the court’s discretion whether counsel opposite should have a copy if the court determines that “… it is necessary in the interests of justice …” Any part of the item or writing that the court orders not to be admitted into evidence is required to be preserved in the record for appeal. The court may make any order it deems necessary to effect the intention of the rule.
The best evidence rule does not apply to writings used to refresh recollection. Hunt v. State, 687 So.2d 1154 (Miss. 1997).
The comments to the rule say that it was intended to end pre-rules confusion between simply refreshing the witness’s independent recollection (MRE 612) and laying the foundation for admission of a recorded recollection as an exception to the hearsay rule (MRE 803(5)). In my experience, that confusion sadly persists despite this rule.
In a nutshell, here is the distinction: (a) Rule 612 instructs us on how to refresh a witness’s present recollection. That is, the witness at the time of trial can testify as to his recollection of what happened, but his recollection needs to be refreshed before he can testify. After looking at the item, the witness’s recollection is restored, enabling him to testify from memory. (b) Rule 803(5) tells us what to do where a witness once had personal knowledge, but now has insufficient recollection to be able to testify, and the witness made an accurate record of his observations when the event was fresh on his mind.
An important caveat: Before you stick something under the witness’s nose to refresh his recollection, be aware of what it is that you are handing to your opponent, because that is what you are doing when you offer it to your client. In a case I tried years ago, a key witness was hazy about details of an important event that would affect the outcome of the case. In an effort to jog her memory, her lawyer asked her whether there was anything that would help her recall the details. She said she could recall if she could look at a sheaf of notes she had left on counsel’s table. Without even glancing at them, the attorney handed them to her, whereupon I demanded to look over the papers. There, in the witness’s own handwriting, were dozens of statements that contradicted her own testimony to that point, flatly contradicted her deposition testimony, and aided us immensely in her impeachment. And it was handed to us by her own attorney.
February 24, 2011 § 3 Comments
It’s a familiar scene. The witness is asked a crucial question and suffers that dreaded lapse of memory. “I don’t remember,” she says, and the lawyer knows the answer is right there on counsel’s table. How do you recover?
Unfortunately many lawyers follow the “I don’t remember” response with a leading question in an attempt to suggest the answer. That provokes a series of objections to leading questions and even, “The witness has already said she doesn’t remember, so she can’t answer any questions about this!” Often the examining lawyer gives up and moves on to something else.
The solution is in MRE 612, which allows a witness to use just about anything, admissible or not, to refresh his or her recollection.
Instead of asking that suggestive question, simply ask the forgetful witness whether there is anything she could refer to that would refresh her recollection. When she says she needs to look at her calendar, or her checkbook, or her diary, or her driver’s license, hand it to her and ask her to take a moment and look it over, and then ask the question again. Any objection should be overruled because she said she needed to refresh her recollection, and she should be allowed to do so. Note that any object can be used. It may be a photograph of a loved one, or a pencil, or a cell phone. The rule does not require that it be admissible in evidence.
Whatever object is used is subject to examination and inspection by the other side. And, of course, that is the practice as to any document or object used by a witness on the witness stand. The other party has the right under Rule 612 to offer into evidence those portions relating to the witness’s testimony, and there is a procedure for objecting to portions of the document that are not relevant, and preserving for appellate review any matter not made a part of the record.
It is quite common in court for a witness to say, “I need to look at some papers on the table to answer that.” The court will routinely allow the witness to look at what he or she needs to answer.
Rule 612 is the only procedure available to refresh a witness’s recollection. It is limited to a writing or a tangible object, and does not apply to an out-of-court oral statement, which would simply be an attempt to circumvent the hearsay rule. Eastover Bank v. Hall, 587 So.2d 266, 269 (Miss. 1991).
Some lawyers apparently confuse attempts to refresh the recollection of the witness with MRE 803(5), which pertains to the admissibility of a recorded recollection in a memorandum or record in lieu of the witness’s testimony when the witness has no recollection of the facts in the record. The two rules address different problems: Rule 612 is a method to refresh the recollection of the witness; Rule 803(5) is a way to get the facts in the record via documentary proof when the witness has no recollection.
Another source of confusion for older lawyers is that Rule 612 is a departure from pre-MRCP practice. In the era before MRCP it was much more cumbersome to refresh a witness’s faulty memory. But that was then (now 28 years ago) and this is now. If you’re still playing tapes of pre-rules practice in your head after all these years, you need to get out a rule book and get up to date.