Evidence: Testimonial Evidence: Witnesses: Form of Witness Examination: Writings in Aid of oral testimony

  • Witness Examination: Writings in aid of oral testimony: A witness cannot read her testimony from a prepared memorandum. However, a memorandum may be used in certain circumstances.
    • Present Recollection Revived—Refreshing Recollection: A witness may use any writing or thing (ANYTHING, even beer!) for the purpose of refreshing her present recollection. The witness, though, may not usually read from the writing during her testimony because the writing is not authenticated into evidence.
      • If such an item is used to refresh a witness's recollection, the opposing party has a right to (1) inspect it; (2) use it on cross examination; (3) introduce it into evidence

M Watch out for Exam questions where the witness confronts a writing. Keep in mind the differences between Refreshing Recollection and the hearsay exception of Past Recollection Recorded M

    • Past Recollection Recorded—Recorded Recollection (a hearsay exception): Where a witness states that she has insufficient recollection of an event to enable her to testify fully and accurately, even after she has consulted a writing given to her on the stand, the writing itself may be read into evidence if (a proper foundation is laid): {ATM PF}
        • The writing is accurate
        • The writing was timely made when the matter was fresh in the witness's mind
        • The writing was made or adopted by the witness
        • The witness at one time had personal knowledge of facts in the writing;
        • The witness forgets, and showing the writing fails to jog witness's memory.
      • If proper foundation is laid then:
        • Witness may read the document to the jury
        • Witness MAY NOT show the document to the jury
        • The opposing counsel, however, may show the document to the jury by introducing it as an exhibit.