§21.11 KEY POINTS

• Jurisdiction: United States

§21.11. KEY POINTS

Refreshment. Almost anything may be used to awaken a slumbering memory. The document need not have been created by the witness, nor prepared contemporaneously with the event recorded. It doesn't even have to be accurate or admissible. 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."

Lack of memory. The witness's memory must be exhausted, or nearly exhausted, before a writing may be used to refresh recollection.

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. The writing itself is not admissible unless (1) introduced by the opposing party (only for impeachment) or (2) some other evidence rule applies.

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. In this situation, the writing is used to impeach the witness's credibility and not as substantive evidence.

Right ofinspection. The right is mandatory for trial refreshment. The production of a writing used prior to trial to refresh a witness's recollection may...