Refreshing Recollection Flashcards
Problem 1: The ATF agent who interviewed defendant Gerald Garnosio is called as a witness in the criminal case. During his direct examination the agent cannot remember certain of the statements he has attributed to Garnosio in the report of interview. Which of the following may the prosecutor show the agent in an attempt to refresh his recollection?
a. The notes the agent took of the interview - b. The report later written about the interview - c. The notes taken by a St. Louis police officer who was also present at the interview - d. A transcript of the suppression hearing at which the agent testified about the interview - e. A newspaper article which summarized the testimony of the agent at the suppression hearing - f. A video tape of the interview – g. A videotape of a news report about the government’s evidence at the suppression hearing – h. A dead cat –
Yes to all, Anything can be used as long as it refreshes memory
Assume that the prosecutor chooses to use the agent’s notes. Must he authenticate them before the agent may view them?
No need to authenticate the agent’s notes. Item does not have to be accurate to be used
What is the correct method for the prosecutor to use in attempting to refresh the agent’s memory?
(1) Establish that the witness does not remember something, (2) Establish that the witness believes that seeing the item might refresh their recollection, (3) Show the item to the witness, and ask them to review it without sharing it with the trier of fact, (4) Take the thing from the witness, (5) Ask if the witness’s memory has been refreshed, (6) Ask the witness the question.
After seeing the notes, the agent states that his memory is refreshed. Before he is allowed to testify the defendants ask to be allowed to voir dire him. In the questioning, they get the agent to acknowledge that his notes do contain some significant errors. They then object that as the agent states the notes have errors, he should not be allowed to testify after using them to refresh his memory. How should the judge rule and why?
(1) The fact that an item is inaccurate is of no consequence, however, (2) it this may change if agent admits the notes are inaccurate, the cross-examiner might then use those inaccuracies to impeach the witness.
The judge overrules the defendant’s objection and the agent testifies to the statements made by Garnosio. Are the defendants allowed to use any portions of the notes to cross-examine the agent? May they seek the introduction of any parts of the notes into evidence?
The defendants may use the portion of the notes that are inaccurate to impeach the credibility of the witness. However, if defendant admits those statements are inaccurate, cannot use to impeach the defendants credibility. Can cross with or without introduction
The agent looks at the notes and says that they do nothing for him. While he knows that defendant Garnosio made statements, he simply cannot remember them. What is the next step for the prosecution?
So the witness has no memory that can be refreshed, next question then becomes what else can the attorney do to get the evidence into trial. Proponent of the evidence must try to use a hearsay exception to admit the agent’s notes Rule 803(5). A Record that: (A) is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately; (B) was made or adopted by the witness when the matter was fresh in the witness’s memory; and (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.
Gustav Holts, who will testify to seeing other ammonia gas leaks at AB cannot recall the specific dates, but did make notes. The notes do not refresh his memory as to the dates, and the plaintiffs seek to have the notes read to the jury. What is the procedure the plaintiffs must follow?
Procedure to use Past Recollection Recorded: (1) Establish that the witness’s memory is such that it cannot be refreshed, (2) Show that a document exists which contains the witness’s past knowledge of the fact or event, (3) Show that the witness either made the document him or herself or that document was made by someone else, but the witness has reviewed it and adopted it as correct, AND (4) Show that the document was made or adopted at a time when the fact or event was fresh in the mind of the witness.
Assume that Holts did not write the notes himself, but instead dictated to his wife. Assume further that Holts is illiterate so he has never been able to read the notes to verify their accuracy. What must the plaintiffs do to have the notes read to the jury?
Document does not have to be made by Holts for it to be admitted, but Holts does have to review the document and adopt it as being correct. Can look to the person who made the notes to get to adoption
Someone can read it to him
Tran Nguyen saw a person running from the AB site. He further saw that person get into a car and drive away. He was able to see the license of the car and called it out to a friend. Nguyen has no present memory of the license number, but the friend is capable to telling the jury what Nguyen said. The defendants object. How should the judge rule and why?
Is there a record or not?
Correctly reflects the knowledge that he was there and no reason to fabricate other guy’s memory could be good enough
No record – can’t use 803(5) - Won’t allow a verbal recitation of memory need a document – even if there was a recording in the past (i.e. written on hand)
