Past Recollection Recorded

March 4, 2014 § Leave a comment

We talked in a post here last week about how to cope with the forgetful witness. That post focused on refreshing the present recollection of a witness with a writing or other object per MRE 612. Once the witness’s ability to recall has been restored, the witness may then go forward with his testimony. 

But how does one handle the case where the witness simply has no present recollection whatsoever, even after your best effort under MRE 612?

Well, if the witness has no recollection whatsoever, the witness should be excused, because he does not meet at least one of the most basic criteria of a competent witness, which are the ability to recall and relate truthfully. MRE 601, 602, 603; See, e.g., Goforth v. State, 70 Miss.3d 174 (Miss. 2011).

If, however, the witness once did have personal knowledge, but now has insufficient recollection, and there is a record made or adopted by the witness while the matter was fresh on his mind, MRE 803(5) gives you a way to get those matters before the court.

Here are the steps:

  1. Establish that the witness once had personal knowledge of the matter, but now has insufficient recollection to testify independently, fully and accurately. 
  2. Establish that there is a written or recorded record of the matter that was made by or adopted by the witness while it was within his memory and was within his knowledge.
  3. Have the witness confirm that it correctly reflects the witness’s knowledge at the time.
  4. Ask that the statement be admitted. If the court deems it admissible, then MRE 803(5) provides that it “may be read into evidence,” but it is not itself received as an exhibit unless offered by an adverse party. This is a somewhat curious procedure, and I have never seen it done this way, but that is what the rule dictates.

An example of MRE 803(5) in action is where a physician is called as a witness to testify about a person’s physical and medical condition when the doctor examined him. She has no independent recollection on the day of trial of this particular patient’s condition as it existed at the time in question, but she has her patient record, either dictated by her at the time or recorded by a nurse or aid and adopted by the doctor as an accurate reflection of the facts while they were fresh in her memory. See, e.g., Harness v. State, 58 So.3d 612 (Miss. 2009).

MRE 803(5) and 612 are two excellent tools at your disposal to overcome the dilemma of the witness stranded alone on the witness stand devoid of memory.

When a document is admitted into evidence, or the court overrules an objection allowing a witness to testify as to a particular point, all that means is that the information gets to the judge either in the form of something that the judge can look at and study, or verbally. Either way, when it is in evidence, it is fair game for the court to weigh and take it into account in its ruling. It’s your job to get those key items into the judge’s hands to look at, or into the judge’s ear.

When you quit thinking about the MRE as a collection of obstacles to the admission of evidence, and begin seeing them in terms of how they offer you many portals to the court’s consideration, you will find your trials a whole lot easier and more successful.


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.

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