Witness Recollection Flashcards
Can witnesses testify from prepared documentation?
Generally witnesses can NOT read testimony from prepared documentation
Steps for refreshing witness’s recollection
1) Witness testifies cannot recall facts or facts important to the case; and,
- NOT future recollection
2) Proponent asks whether document (usually W own words) would refresh the witness’s recollection; and,
3) Witness reviews document and affirms can now recall facts or facts that were previously forgotten; should be permitted to testify based on now-refreshed recollection
What are the adverse party’s rights regarding refreshed recollection (Rule 612)?
If W refreshes recollection on the stand:
- Can introduce document into evidence
- Request production/inspection of document at trial (privilege NOT relevant)
- Cross-examine W re document
If W refreshes recollection before taking the stand => Court’s discretion (as justice requires):
- Request production of document at trial
- Inspect document
When may the adverse/own party introduce into evidence recorded recollection?
Proper foundation laid:
1) W had personal knowledge
2) W made record/directed another to adopt record
3) W made record timely (at time of event)
4) Record accurately reflects W’s mind
5) W has insufficient recollection
What is the difference between refreshing and recorded recollection?
Refreshing recollection:
- W can remember
- Adverse party can introduce as exhibit (NOT hearsay exception)
Recorded recollection:
- W can NOT remember
- Own party can show to jury (hearsay exception)
- Adverse party can introduce as exhibit (NOT hearsay exception)
Are witness documents admissible as hearsay?
Yes
- Counts as hearsay exception
When can witnesses rely on their documents?
Before trial
During trial
Does adverse party have discretion to examine the documents?
Before trial
- Yes (Adverse party may examine)
During trial
- NO (Adverse party must examine)
