June 20, 2018 § Leave a comment
It happens sometimes that the witness simply can not recall something that you need to have in the record. Before you give up and move on to something else, consider MRE 612, which is entitled, “Writing Used to Refresh a Witness’s Memory.”
Actually, the title is a misnomer, because under MRE 612(a) you can use a “writing, recording, or object” to refresh the witness’s memory.
Here are the steps:
- Establish that the witness is unable to recall something;
- Counsel is unable to jog the witness’s memory through questioning. The court may allow leading questions;
- Counsel shows the writing, recording, or object to the witness and asks whether looking at it will help refresh her memory. If yes, she is allowed to read or look over it silently;
- If the witness after looking at it can then say she now recalls the matter independent of the writing, recording, or object, she may then testify to that independent recollection;
- If the witness can not recall the matter after that procedure, counsel may lay a foundation for admitting the writing’s, recording’s, or object’s contents under MRE 803(5), past recollection recorded exception to the hearsay rule (that’s for another day).
What is an “object?” The advisory committee note mentions a photograph as an example. But there is no requirement in the rule that the object have content or substance, as would a photograph, a map, or a hand-drawn sketch. In law school our evidence professor said that a pencil or a comb could be used, so long as they would help refresh the witness’s memory.
When I practiced, I liked to do step 3 a little differently. I would ask the witness whether there was something that would help jog his memory. Most times the answer was something like, “Yes, if I could look over the inventory I made,” or something to that effect, I would then hand the witness what he identified.
Remember that under the MRE the writing, recording, or object used in R612 need not meet the requirements of past recollection recorded unless and until the witness has no independent recollection after looking at it and must use it to testify (e.g., “I don’t remember well enough to testify without referring back to this list …”).
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.