By Hon. Robert Trentacosta

A witness’s failure to recall a fact or event at trial is a common occurrence. Trial lawyers must master the mechanics of refreshing the recollection (memory) of a witness or risk foregoing the admission of valuable, relevant evidence. The following is a breakdown of the elements of refreshing the recollection of a witness and an exemplar script.

The elements of Refreshing Recollection

• The Witness cannot recall a fact/event;
• The Witness states that a certain writing could help refresh his/her memory;
• The Proponent of the evidence tenders the writing/object to the witness;
• Proponent asks witness to silently read the writing or study the object;
• The Witness states his/her memory is refreshed;
• The Witness testifies from revived memory.

Discussion

Any writing or object may be used to refresh the memory of the witness. For example, it is not a requirement that the witness authored the writing, created the diagram, or took the photograph.

If a writing is used, Evidence Code §771(a) requires that any writing used by the proponent of the evidence “must be produced at the hearing at the request of the adverse party…” A failure to do so, will result in the witness’s testimony on that specific subject being stricken.

Remember, the document itself does not have independent evidentiary value. The document is relevant only inasmuch as it refreshes the memory of the witness. It is the witness’s recollection that has evidentiary value. Accordingly, the document may not be admitted into evidence by the proponent.

Refreshing Recollection Script

In the following script, the witness to a traffic collision is being examined on direct by plaintiff’s counsel. The witness cannot recall the specific intersection where the collision occurred. Plaintiff’s counsel will attempt to refresh the witness’s memory.

Refreshing Recollection: An Exemplar Script

Q: Where did the collision occur?

A: It was at Main Street and…I can’t remember the cross street.

Q: Would looking at the traffic collision report refresh your memory as to the cross street?

A: Yes

Q: [The proponent shows the writing to opposing counsel] May the record reflect, I am now handing the witness a copy of the traffic collision report of this incident. Sir, I invite your attention to the highlighted paragraph on page two. Please read the paragraph silently to yourself and look up when you are ready. [Witness complies]. May the record reflect, I have now taken back the report. [The witness may not simply read from the document]. Did looking at the traffic collision report refresh your memory as to the name of side street?

A: Yes

Q: Where did the collision occur?

A: At the intersection of Main Street and 3rd Avenue.