June 01, 2016

From the Bench: Memories

Hon. Samuel A. Thumma

Download a printable PDF of this article.

What a nonparty witness recalls can be admitted in evidence at a civil trial in a variety of different ways. The most common and forceful way for memories to be admitted is a witness’s testimony about what the witness recalls. But there are at least a half dozen other ways such memories are admissible under the Federal Rules of Evidence. Using a simple hypothetical, this article highlights some of these alternatives that should be in every trial lawyer’s evidentiary toolbox.

Wanda Witness is walking down a sidewalk one afternoon and sees two cars collide. Being a good citizen, Witness waits with the drivers until the police arrive, writing in her journal what she saw. The police take Witness’s statement, and she identifies drivers Peter Plaintiff and Danny Defendant and signs her name on a picture of each. The police then prepare a report. Plaintiff files a civil case against Defendant. Witness is deposed and testifies at trial held years later. How can Witness’s memories of the accident be admitted at trial?

A witness’s unaided testimony about memories. Witness presumptively is competent to testify and, after giving an oath or affirmation, can testify based on her personal knowledge about what she recalls of the accident. Fed. R. Evid. 601–603. If her memory is pristine, life is good. But what are the options if it isn’t?

Leading questions (gasp!) during direct. Witness generally should not be asked leading questions during direct examination. Fed. R. Evid. 611(c). But judges “should exercise reasonable control over the mode . . . of examining witnesses” to “avoid wasting time,” and may allow leading questions even during direct “as necessary to develop the witness’s testimony.” Fed. R. Evid. 611(a), (c).

So, if Witness can’t recall the day of the week the accident occurred and the day of the week is not disputed, asking Witness a leading question on direct to move things along—“The accident happened on a Friday, correct?”—should not be objectionable. If, however, the day of the week was a hotly disputed material fact, that same question may be objectionable. So, contrary to urban legend, leading questions can be used on direct examination for limited purposes, including times when a witness’s memory is a little fuzzy.

Writing used to refresh a witness’s memory. An attorney also can attempt to refresh the witness’s memory. Trick question: What rule of evidence allows a witness’s memory to be refreshed? Answer: There isn’t one. (I said it was a trick question.) But the evidence rules do provide some guidance.

The rules of evidence don’t describe how to refresh a witness’s recollection but, instead, provide disclosure obligations and an adverse party’s options “when a witness uses a writing to refresh memory.” Fed. R. Evid. 612(a). “[A]n adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony.” Fed. R. Evid. 612(b). And if the writing is not produced as ordered, the court “may issue any appropriate order” up to and including striking a witness’s testimony or declaring a mistrial. Fed. R. Evid. 612(c).

If Witness does not recall at trial what day the accident occurred, she could be shown a copy of the police report to see if it refreshes her memory. It doesn’t matter whether Witness wrote the report or even had seen it before. She could then read the report to herself, set it aside, and be asked whether the report refreshes her recollection. If it does refresh her recollection, she answers the question; if not, she’s still at a loss. What Witness can’t do is to answer the question by reading aloud from the police report. And the document used to refresh her recollection can’t be received in evidence unless it is admissible on some other basis.

Recorded recollection. What if no writing refreshes Witness’s memory? Witness’s journal entry might be admissible as a recorded recollection—an exception to the rule against hearsay regardless of whether a witness is available to testify. Fed. R. Evid. 803(5). The journal entry is “a memorandum, report, or data compilation,” meaning it is a record. Fed. R. Evid. 101(b)(4). The journal entry appears to be “on a matter the witness once knew about but cannot recall well enough to testify fully and accurately”; “was made or adopted by the witness when the matter was fresh in” Witness’s memory; and accurately reflects her knowledge. Fed. R. Evid. 803(5). So her journal entry should be admissible under the recorded recollection exception to the rule against hearsay. Would the police report be treated the same way? Probably not. Witness did not write the police report, and unless she “adopted” it when the matter was fresh in her memory, it would not qualify as Witness’s recorded recollection.

Another trick question: If the journal entry is admissible as a recorded recollection, it is admitted in evidence as an exhibit the jury can consider during deliberations, right? Wrong. “If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party.” Id. Because it is the functional equivalent of witness testimony, the document is read to the jury, but the jury can’t consider the written journal during deliberations.

A witness’s prior identification. What if the police report says Witness identified Defendant the night of the accident, but now she can’t remember doing so, nothing refreshes her recollection, and her journal entry doesn’t reflect the identification? Game over on the jury learning Witness identified Defendant, right? Not so fast!

Evidence of Witness’s statement identifying Defendant the night of the accident, where Witness testifies and is subject to cross-examination, sure feels like hearsay, but by rule, it isn’t. Fed. R. Evid. 801(d)(1)(C). So a police officer who saw Witness identify Defendant the night of the accident could testify to that fact without implicating the rule against hearsay.

Former testimony. During her pretrial deposition, Witness recalled a great deal about the accident not otherwise captured in any document. But now, at trial, she can’t remember much of anything. How can the deposition be used?

Her deposition testimony is admissible as an exception to the rule against hearsay if offered against a party who had an opportunity and similar motive to develop her testimony. Fed. R. Evid. 804(b)(1). But wait! Witness is testifying at trial, and that exception is limited to “if the declarant is unavailable as a witness.” True, but a declarant is considered unavailable if she “testifies to not remembering the subject matter.” Fed. R. Evid. 804(a)(3). So, if Witness remembers nothing, she may be deemed unavailable for purposes of this exception to the rule against hearsay.

A declarant-witness’s prior statement. Although Witness’s out-of-court statements sure feel like hearsay, they may be admissible as non-hearsay depending on (1) whether they are consistent or inconsistent with her trial testimony and (2) how they were made. Fed. R. Evid. 801(d)(1)(A).

Witness is testifying at trial and is subject to cross-examination, meaning her prior statements under oath that are inconsistent with her trial testimony are not hearsay. Id. Is this also true for her unsworn statements to police? No. For prior inconsistent statements to be “not hearsay,” they must be “given under penalty of perjury.” Id.

Witness’s prior statements, even if not under oath, are not hearsay if they are consistent with her trial testimony and offered to rebut a claim of recent fabrication or improper influence or motive or offered to rehabilitate her credibility “when attacked on another ground.” Fed. R. Evid. 801(d)(1)(B)(i) & (ii).

Although disclosure to the adverse party is required if requested, the examining party need not show or disclose the statements to Witness when questioning her about her prior statements. Fed. R. Evid. 613(a). However, extrinsic evidence of a prior inconsistent statement is admissible only if Witness is given an opportunity to explain or deny the statement and the adverse party is given an opportunity to examine Witness about it, “or if justice so requires.” Fed. R. Evid. 613(b).

The best way for Witness’s testimony to have maximum force and impact at trial is for her have a good, crisp memory. But failing that—and she’s human after all—there are numerous other ways to admit evidence of her memories. This article discusses half a dozen ways to do so. Undoubtedly, there are many more; present sense impression and excited utterance exceptions to the rule against hearsay immediately come to mind. Fed. R. Evid. 803(1) & (2). But given the potential importance of Witness’s testimony, particularly her memories, the alternatives highlighted in this article should be in every trial lawyer’s evidentiary toolbox.

Hon. Samuel A. Thumma

The author is a judge on the Arizona Court of Appeals, Division One. He wishes to express his sincere appreciation to his law clerks Molly Schiffer and Byron Martz for assistance with an earlier version of this article.