Presentation of evidence - Refreshing recollection

Learning Outcomes

After reading this article, you will understand the rules for refreshing a witness’s recollection during trial, including when and how it is permitted, the distinction between present recollection refreshed and past recollection recorded, and the procedural rights of opposing counsel. You will be able to identify correct and incorrect applications of these principles in MBE-style questions.

MBE Syllabus

For MBE, you are required to understand the rules governing the presentation of evidence, particularly the methods for refreshing a witness’s memory. This includes:

• Recognizing when a witness’s recollection may be refreshed.
• Identifying permissible materials and methods for refreshing recollection.
• Distinguishing between present recollection refreshed and past recollection recorded.
• Understanding the procedural rights of opposing counsel during the process.
• Applying these rules to fact patterns involving witness testimony.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. During direct examination, a witness cannot recall a key fact. The attorney shows the witness a document to help the witness remember. Which of the following is true?
   1. Only documents created by the witness may be used.
   2. Any item may be used to refresh recollection, subject to the judge’s discretion.
   3. The document must be admitted into evidence before being used.
   4. The witness must read the document aloud to the jury.
2. If a witness’s recollection is refreshed with a document, what right does opposing counsel have?
   1. No right to inspect the document.
   2. The right to inspect and cross-examine on the document.
   3. The right to exclude the document from evidence.
   4. The right to demand the witness read the document verbatim.
3. What is the main difference between present recollection refreshed and past recollection recorded?
   1. Only the latter allows the document to be read into evidence.
   2. Both require the document to be admitted as an exhibit.
   3. Both require the witness to have written the document.
   4. There is no difference.

Introduction

A witness’s memory may fail during testimony. The rules of evidence allow an attorney to help a witness recall facts by refreshing the witness’s recollection. This process is strictly regulated to ensure fairness and prevent improper influence. Understanding when and how recollection may be refreshed, and the rights of the opposing party, is essential for MBE success.

When May Recollection Be Refreshed?

If a witness cannot recall a fact while testifying, the attorney may attempt to refresh the witness’s memory. The goal is to stimulate the witness’s present recollection so the witness can testify from memory, not from the document or item itself.

Key Term: Present Recollection Refreshed The process of using a writing or object to prompt a witness’s memory so the witness can testify from present memory, not from the writing or object.

Permissible Materials and Methods

Any item may be used to refresh recollection—notes, photographs, letters, or even sounds or smells—if the judge finds it appropriate. The item does not need to be admissible evidence or created by the witness. The attorney shows the item to the witness, who reviews it silently, then sets it aside and testifies from memory.

Key Term: Refreshing Recollection The act of showing a witness a writing or object to help the witness remember facts, so the witness can testify from present memory.

Rights of Opposing Counsel

If a witness’s recollection is refreshed, the opposing party has the right to inspect the item, cross-examine the witness about it, and introduce relevant portions into evidence if fairness requires.

Key Term: Inspection Right The procedural right of the opposing party to review any item used to refresh a witness’s recollection, and to use it for cross-examination.

Distinguishing Present Recollection Refreshed from Past Recollection Recorded

If refreshing fails and the witness still cannot recall, a different rule applies: past recollection recorded. Here, if the witness once had knowledge and made or adopted a record when the matter was fresh, the record may be read into evidence, but is not itself received as an exhibit except by the adverse party.

Key Term: Past Recollection Recorded A hearsay exception allowing a writing to be read into evidence when a witness cannot recall, if the writing was made or adopted when the matter was fresh in memory.

Worked Example 1.1

A witness cannot remember the color of a car involved in an accident. The attorney shows the witness a police report written by another officer. The witness reviews the report, then testifies, “Now I remember—the car was blue.” The opposing attorney asks to see the report.

Answer: This is proper. Any item may be used to refresh recollection, even if not created by the witness. The opposing party has the right to inspect the report and cross-examine the witness about it.

Worked Example 1.2

A witness cannot recall the serial number of a stolen laptop. The attorney shows the witness a receipt the witness wrote at the time of purchase. The witness still cannot remember, even after reviewing the receipt. The attorney offers the receipt as evidence.

Answer: If the witness cannot recall after reviewing the receipt, the attorney may use the past recollection recorded exception. The attorney may have the witness read the serial number from the receipt into evidence, but the receipt itself is not admitted as an exhibit unless the opposing party requests it.

Exam Warning

If a witness reads from a document while testifying, rather than testifying from memory after reviewing it, this is not present recollection refreshed but past recollection recorded. Only the latter allows the document to be read into evidence.

Revision Tip

Opposing counsel should always request to inspect any item used to refresh recollection and consider using it for cross-examination or to introduce relevant portions into evidence.

Key Point Checklist

This article has covered the following key knowledge points:

• A witness’s recollection may be refreshed with any item, at the judge’s discretion.
• The witness must testify from present memory after reviewing the item.
• The item used to refresh does not need to be admissible or created by the witness.
• Opposing counsel has the right to inspect, cross-examine, and introduce relevant portions.
• If refreshing fails, the past recollection recorded exception may allow the writing to be read into evidence.
• The writing itself is not admitted as an exhibit unless the adverse party requests it.

Key Terms and Concepts

• Present Recollection Refreshed
• Refreshing Recollection
• Inspection Right
• Past Recollection Recorded