§ 21.03 REFRESHMENT; TYPES OF WRITINGS

• Jurisdiction: United States

§ 21.03. REFRESHMENT; TYPES OF WRITINGS

Almost anything may be used to awaken a slumbering memory. One court said "a song, a face, or a newspaper item"² may be the source of the refreshment. Another court pointed out that it "may be a line from Kipling or the dolorous strain of the 'Tennessee Waltz'; a whiff of hickory smoke; the running of the fingers across a swatch of corduroy; the sweet carbonation of a chocolate soda; [or] the sight of a faded snapshot in a long-neglected album."³ Not really. It is not going to be Kipling or the Tennessee Waltz. Nor is it going to be Walt Whitman or the Beatles. It is going to be a document.

The document need not have been created by the witness,⁴ nor prepared contemporaneously with the event recorded.⁵ It doesn't even have to be accurate or admissible.⁶ For example, a witness's recollection could be refreshed by a newspaper account, even though the witness believes the account is erroneous. In sum, the "admissibility of testimony accompanied by a Rule 612 refreshment does not depend upon the source of the writing, the identity of the writing's author, or the truth of the writing's contents."⁷

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Notes:

^[2] Jewett v. United States, 15 F.2d 955, 956 (9th Cir. 1926).

^[3] Baker v. State, 371 A.2d 699, 705 (Md. App. 1977).

^[4] See United States v. Marrero, 651 F.3d 453, 471-72 (6th Cir. 2011) ("By its terms, Rule 612 does not limit the type of writings that might be used as refreshers. . . . The fact that the warrant tabulation report was prepared by a person other than Officer Brennan does not establish that the district court abused its discretion by allowing her to refresh her recollection with it."); Rush v. Illinois Cent. R. Co., 399 F.3d 705, 716 (6th Cir. 2005) ("The propriety of permitting a witness to refresh his memory from a writing prepared by another largely lies within the sound discretion of the trial court."); United States v. Darden, 70 F.3d 1507, 1540 (8th Cir. 1995) ("As an informant, Parnell took part in many meetings with members of the enterprise during which the criminal activities of the enterprise were discussed. After those meetings, Parnell would meet with government agents to discuss what he had heard. Following each of these debriefing sessions, a DEA report would be prepared detailing Parnell's account of his conversations. . . . Parnell reviewed these DEA reports in preparation for his testimony. The DEA reports in this case were based on Parnell's own accounts of conversations in which...