Evidence question Forum

[thexfactor]

in refreshing recollection, if you are using a document to refresh someone's memory, do you have to give it to the opposing side immediately when you use it, or only if the person's memory is refreshed?

[blsingindisguise]

You have to offer them a refreshing beverage first.

[Renzo]

If you ask them on the stand, "does this refresh your recollection?" you have to turn it over, regardless of the answer. You've used the document to refresh, even if it was unsuccessful.

[nleefer]

I'm not sure if that's right, although I'm by no means an authority. My evidence casebook dedicated all of 1 paragraph to rule 612, but as I understand it, if the document doesn't refresh the witness' memory, then he or she won't be testifying about anything it says, so there's no reason the other side would need it.

The text of the rule states that "if a witness uses a writing to refresh memory for the purpose of testifying...an adverse party is entitled to have the writing produced at the hearing..."
This suggests to me that if memory is not actually refreshed, then there is no obligation to supply the document to the opposing party. This makes some sense, because the rule is designed to allow the opposing party to cross examine the witness on the refreshed memory, not the document itself.

[Renzo]

I'm not sure if that's right, although I'm by no means an authority. My evidence casebook dedicated all of 1 paragraph to rule 612, but as I understand it, if the document doesn't refresh the witness' memory, then he or she won't be testifying about anything it says, so there's no reason the other side would need it.

The text of the rule states that "if a witness uses a writing to refresh memory for the purpose of testifying...an adverse party is entitled to have the writing produced at the hearing..."
This suggests to me that if memory is not actually refreshed, then there is no obligation to supply the document to the opposing party. This makes some sense, because the rule is designed to allow the opposing party to cross examine the witness on the refreshed memory, not the document itself.

Under the recollection refreshed rule, the witness cannot ever testify about the contents of the document; that's not the purpose of disclosure to the other side. It's one of those give-and-take rules of evidence; you get the benefit of the refreshed testimony, but the other side gets the document/object as well, and they get to decide if it should itself be introduced into evidence.

Some jurisdictions even say that if you show something to someone in a meeting before they take the stand, the other side is entitled to it.

[Dr. Van Nostrand]

Yeah under Rule 612 the thing used to refresh the memory is never read, or entered into evidence. Coolest Rule 612 case we read, lawyer literally just held up a pizza box to refresh the witness's memory. Good question on the other side, I don't really know to be honest.