August 08, 2017 Articles

Recollections: Refreshed and Recorded

Recollection rules cause confusion among even the most competent and experienced of trial lawyers.

By Cheryl D. Stein – August 8, 2017

Present recollection refreshed and past recollection recorded—two evidence rules that have long common law traditions—cause confusion among even the most competent and experienced of trial lawyers. It is important to understand the foundation required to admit such evidence, which party may move its admission, and the uses to which the evidence may be put once admitted.

Present Recollection Refreshed
The key elements of present recollection refreshed, which is governed by Federal Rule of Evidence (FRE) 612, include the following: (1) the witness claims a failure of memory, (2) there is a writing or recording that will refresh the witness’s recollection, and (3) the witness’s recollection is actually refreshed after seeing the writing or recording.

Lawyers sometimes confuse refreshing present recollection with impeachment, but, in fact, the two are opposite in intent. The purpose of impeachment is to discredit a witness; the purpose of present recollection refreshed is to bolster the credibility of a witness.

Failure to remember is the first step in refreshing present recollection. The witness must first state that he or she does not remember the answer to a particular question. An offer to refresh recollection is not supposed to be a signal to the witness that the last answer was wrong. If the witness’s answer to the question is “I don’t know,” that is not a sufficient foundation for refreshing present recollection unless it is established that the witness once had firsthand knowledge of the answer. In other words, “I don’t know” is not the functional equivalent of “I don’t remember.”

Determination of a document is the second step in refreshing present recollection. After the witness claims a failure of memory, the examiner must establish which document will serve to refresh. That document (or recording) is marked for identification and shown to opposing counsel.

Assessment of recall is the third step in refreshing present recollection. Seeing the writing or hearing the recording must actually refresh the witness’s recollection. After the document for recall is chosen, it is then handed to the witness, who is instructed to review it silently. When the witness is done, the next question must be, “Has that refreshed your recollection?”

If the answer is no, the attempt to refresh recollection has failed, and the witness cannot answer the original question.

If the answer is yes, the lawyer must retrieve the exhibit before the witness gives a substantive answer. The witness cannot read from the document; the witness can testify only from a current, refreshed recollection.

Rules govern whether the writing/recording can become evidence. The offering party cannot introduce any part of the writing/recording into evidence for any purpose.

The opposing party can introduce all or part of the writing into evidence, but it does not come in as substantive evidence. It is vital to remember that present recollection refreshed is not a hearsay exception. If any of the writing used to refresh recollection is introduced by the opposing party, it is received only for its effect on the witness’s testimony—just as an unsworn prior inconsistent statement is admitted only for the purpose of evaluating the witness’s credibility.

Particulars exist for criminal cases. There are a couple of aspects of refreshing recollection that apply only in criminal cases. First, Rule 612 is limited by the Jencks Act: the rule does not accord the defendant any greater right to production than allowed by the act. Second, if the government fails to produce the refreshing document in a criminal case, the judge must strike that witness’s testimony—and may order a mistrial, if justice demands. In contrast, in a civil case, the court has the discretion to craft any remedy that it considers appropriate and is not required to strike the testimony.

There is case law holding that documents reviewed by a witness in preparation for trial—or for a deposition—may be producible under Rule 612 if they affected the witness’s recollection, even if they were not used or referred to during the testimony. In a document-heavy case, therefore, it is advisable to do a thorough cross-check of all documents reviewed by the witness before testifying and to demand their production. There is also authority stating that the requirements of Rule 612 can overcome work product and/or attorney-client privilege. The cases are not uniform on these issues; research should be done for your particular jurisdiction. Finally, although it is frequently said that anything can be used to refresh recollection, there is at least one important exception: in a criminal trial, a prosecution witness’s recollection cannot be refreshed with the defendant’s immunized testimony.

Past Recollection Recorded
There are three foundational requirements for past recollection recorded, which is governed by FRE 803(5): (1) the witness once had firsthand knowledge of the matter but can no longer “recall well enough to testify fully and accurately,” (2) the record was made at a time when the witness had a fresh recollection of the matter, and (3) the record accurately reflects the witness’s knowledge.

Particular specifications guide implementation of past recollection recorded. Several specific requirements control past recollection recorded.

Most of the time, for example, the witness’s memory of the matter will not be totally exhausted; the rule requires only that the witness not remember well enough to provide all the details necessary to testify fully and that the record was made when “the matter was fresh in the witness’s memory.” There is no requirement that the recording have been made close in time to the event described.

Furthermore, the accuracy of the record can be established by witnesses other than the declarant and may be inferred from circumstantial evidence.

In addition, once the proper foundation is laid, the witness may read from the record.

Finally, only the adverse party may introduce the record itself into evidence.

Past recollection recorded is an exception to hearsay. As the FRE number indicates, past recollection recorded is an exception to hearsay—one of the exceptions where the availability of the declarant is irrelevant.

Because past recollection recorded is a hearsay exception, there is the potential for a confrontation issue in admitting the evidence. When a document or recording is admitted as past recollection recorded, it is received as substantive evidence, and the truth of its contents may be argued. Most of the courts that have addressed such arguments have rejected them. However, defense counsel should be alert to the possibility of raising a confrontation objection to forms of recorded recollections that are testimonial. There are cases, for example, that have admitted grand jury testimony under Rule 803(5), when a government witness claims a failure of recollection at trial. In such circumstances, a Crawford objection should be made.

Many unknowns exist at trial, including a witness’s memory. Trial lawyers should make sure that they are versed in the rules concerning present recollection refreshed and past recollection recorded in order to minimize those unknowns.

Cheryl D. Stein is a criminal defense lawyer in Washington, D.C.