§612 Refreshing Recollection

• Library: Evidence Restated Deskbook (2021 Ed.)

§612 Refreshing Recollection

A. Refreshing recollection at trial

1. General rule. When a witness does not recall or is uncertain about the matters that the witness is being asked to testify about, the witness's memory may be refreshed for the purpose of testifying.

2. Right of adverse party to inspect and cross-examine from writing used to refresh memory. When a witness uses a writing to refresh memory while testifying, the adverse party has a right to inspect it and to cross-examine from it in order to verify that the testimony is truly drawn from the witness's memory.

B. Refreshing recollection before testifying—Adverse party not entitled to inspect and cross-examine from writing used to refresh memory. When a witness uses a writing to refresh memory before testifying, the adverse party is not entitled to inspect it and to cross-examine from it in order to verify that the testimony is truly drawn from the witness's memory. The prohibition does not prevent an adverse party from obtaining documents through discovery that are within the scope of discovery.

Notes

A. Refreshing recollection at trial

1. General rule

When a witness does not recall, or has difficulty recalling, facts that are within the witness's personal knowledge, it is common for counsel to refresh the witness's recollection in regard to those facts so that the witness can testify about them. This is commonly done by "sparking" a present recollection by having the witness review documents, memoranda, or other writings on the witness stand. State v. Bradley, 234 S.W.2d 556, 560 (Mo. 1950).

What may be used to refresh a witness's recollection?

· A writing written by the witness. Examples include the following:

- A letter seeking compensation from a litigant's insurer before trial, even though the content would be inadmissible as evidence of settlement and negotiation, Hancock v. Shook, 100 S.W.3d 786, 799 (Mo. banc 2003)

- Notes that a sheriff made regarding statements made by a defendant two days after the statements were made, Bradley, 234 S.W.2d 556

- A memorandum prepared by the plaintiff from time to time as he recalled the articles that he stored with the defendant, Ward v. Morr Transfer & Storage Co., 95 S.W. 964, 966 (Mo. App. W.D. 1906)

· Any writing, prepared by anyone, and at any time. Because a writing refreshes the witness's recollection of facts, enabling the witness to testify to them, the evidence rests in the witness's testimony and not the writing. State v. Freeman, 489 S.W.2d 749, 753 (Mo. App. S.D. 1973). Accordingly, the time when the writing was prepared, the person who prepared it, and whether it is an original or a copy is irrelevant. Reproductive Health Servs., Inc. v. Lee, 660 S.W.2d 330, 336 (Mo. App. E.D. 1983); see also:

- Thos. Cusack Co. v. Lubrite Refining Co., 261 S.W. 727, 729 (Mo. App. E.D. 1924) (no error was found in allowing a witness to refresh recollection in regard to dates with a statement of account prepared by the bookkeeper)

- Freeman, 489 S.W.2d at 753 (no error was found in allowing a patrolman to refresh his memory by using a copy of his notes prepared by a stenographer)

- State v. Crow, 486 S.W.2d 248, 257 (Mo. 1972) (no error was found in allowing the commanding officer of the Major Case Squad to refresh his memory with a police report prepared by another officer from notes turned in to him by other officers assigned to the case at the conclusion of an investigation)

But, it is said, if the writing used to refresh recollection was not prepared by the witness, it must be a writing known by the witness to be correct. See:

- State v. Patton, 164 S.W. 223, 225 (Mo. 1914) (a witness's memory may be refreshed "by referring to writings, plats, maps, and similar things made by the witness himself . . . but not by papers of which he knows nothing of their correctness or verity, and of which he had no part in the making")

- State v. Payne, 126 S.W.3d 431, 442 (Mo. App. S.D. 2004)

- State v. Gustin, 826 S.W.2d 409, 418 (Mo. App. S.D. 1992)

- S tate ex rel. Pini v. Moreland, 686 S.W.2d 499, 502 (Mo. App. E.D. 1984)

- Voyles v. Columbia Terminals Co., 223 S.W.2d 870, 871 (Mo. App. E.D. 1949)

· An object. "Whether a witness should be permitted to refresh his memory by referring to a writing or some other object depends upon the particular circumstances present in each case." Freeman, 489 S.W.2d at 752.

· A leading question. A trial court has the discretion...