§ 21.05 Admissibility

• Jurisdiction: United States

§ 21.05 Admissibility

A writing does not become admissible solely because it is used to refresh a witness's recollection. Under Rule 612, the testimony of the witness whose recollection has been refreshed is the evidence.¹¹ The writing itself is not admissible unless (1) introduced by the opposing party (only for impeachment) or (2) some other evidence rule applies.

Impeachment. The opposing party not only has the right to inspect the writing but also the right "to cross-examine the witness" on the writing and to introduce into evidence the parts that relate to the witness's testimony.¹² In this situation, the writing is used to impeach the witness's credibility and not as substantive evidence. A limiting instruction under Rule 105 is required upon request.¹³

Hearsay. The writing may also be introduced in evidence if it is independently admissible. For example, the writing may qualify as an admission of a party-opponent,¹⁴ or come within an exception to the hearsay rule, the most obvious of which is the recorded recollection exception, which is discussed below. Other exceptions are also available.¹⁵

Misuse of writing. Rule 612 should not be used to circumvent the hearsay rule by having the witness read aloud from the document. In Douglas v. Alabama,¹⁶ the Supreme Court found a confrontation violation when this tactic was employed: "Under the guise of cross-examination to refresh Loyd's recollection, the [prosecutor] purported to read from the document, pausing after every few sentences to ask Loyd, in the presence of the jury, 'Did you make that statement?' Each time, Loyd asserted the privilege and refused to answer, but the Solicitor continued this form of questioning until the entire document had been read."¹⁷

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Notes:

^[11] See id. ("Consistent with the requirements of Fed. R. Evid. 612, the court ensured that DHL had copies of the documents, assured the documents were relevant to the case, allowed DHL to cross-examine Aponte regarding the recollections recorded, and instructed Aponte to testify to her own recollections and not hearsay."); Rush v. Illinois Cent. R. Co., 399 F.3d 705, 718 (6th Cir. 2005) ("It is the witness's present refreshed recollection—as opposed to the contents of the writing used to refresh memory—that is the substantive evidence of the matter at issue.").

^[12] See Kenai Chrysler Center, Inc. v. Denison, 167 P.3d 1240, 1253 (Alaska 2007) ("Kenai Chrysler had the opportunity to inspect the rate quote and to use it as a basis...