§ 21.04 LACK OF MEMORY REQUIREMENT

• Jurisdiction: United States

§ 21.04. LACK OF MEMORY REQUIREMENT

The witness's memory must be exhausted, or nearly exhausted, before a writing may be used to refresh recollection.⁸ As an initial step, counsel could attempt to revive memory by leading questions.⁹ If a document is used, it must, in fact, refresh the witness's recollection; the witness may not simply read aloud from a document.¹⁰ For example, in one case, counsel instructed the witness: " 'Just read the documents for yourself, and if that refreshes your recollection, tell the jury what . . . did you do to receive the commendations?' [The witness] then described what she did to receive a commendation in each instance."¹¹

⁷ United States v. Carey, 589 F.3d 187, 191 (5th Cir. 2009).

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Notes:

^[8] See United States v. Balthazard, 360 F.3d 309, 318 (1st Cir. 2004) ("It is hornbook law that a party may not use a document to refresh a witness's recollection unless the witness exhibits a failure of memory. While Special Agent Kleber refused to accept counsel's contention that St. Jacques had no knowledge of the Gkie Street operation, he did not claim that his memory on the point was impaired.") (citations omitted).

^[9] See Fed. R. Evid. 611(c).

^[10] See Rush v. Illinois Cent. R. Co., 399 F.3d 705, 718 (6th Cir. 2005) ("[D]efense counsel did not enquire whether the interview transcript refreshed Lockett's recollection of the matter at issue; namely, the post-accident interview. Defense counsel instead instructed Lockett to read, in the presence of the jury, the prior, unsworn statements contained in the interview transcript. We thus reach the inescapable conclusion that defense counsel impermissibly utilized the 'guise of refreshing recollect,' to place before the jury Lockett's prior, out-of-court...