Chapter 5 - § 5.3 • PRESENT RECOLLECTION REFRESHED

• Jurisdiction: Colorado

§ 5.3 • PRESENT RECOLLECTION REFRESHED

§ 5.3.1—Introduction

When a witness is unable to recall information that the witness once had personal knowledge of, an examining attorney is permitted to refresh the witness's recollection. CRE 612 governs the use of a writing to refresh a witness's memory, the means by which an opposing party may examine the writing, and the handling of a document where only a portion of the writing was used to refresh the witness's recollection. The language of CRE 612 is substantially the same as FRE 612 except that Colorado's rule excludes reference to federal statutory limitations on criminal proceedings under 18 U.S.C. § 3500. Although the language of the rule speaks only to the use of a writing to refresh a witness's memory, almost anything can be used to refresh a witness's recollection. See United States v. Rappy, 157 F.2d 964, 967 (2d Cir. 1946) ("Anything may in fact revive a memory: a song, a scent, a photograph, an allusion, even a past statement known to be false"). This concept does not mean an attorney may simply ask the witness if one version of events is correct. The attorney must follow the procedures described below instead of merely asking leading questions in order to refresh the witness. People v. Stewart, 417 P.3d 882, 886 (Colo. App. 2017) ("Here, the prosecutor did not attempt to call the witness's attention to a prior inconsistent statement. Instead, the prosecutor simply told the witness what the prosecutor wanted to prove.").

Counsel must establish that the witness does not have a memory of the event in question and that viewing the writing or other item would help to refresh his or her recollection. People v. Huehn, 53 P.3d 733, 740 (Colo. App. 2002); People v. Clary, 950 P.2d 654, 656-57 (Colo. App. 1997). See also "Foundation required to refresh witness's recollection," 23 Colorado Practice, Evidence Law § 612:3 (Nov. 2020 Supp.). In a typical case, the examiner will provide the witness with the document, and once the witness confirms that his or her memory has indeed been refreshed, the examiner will retrieve the document so that the witness may testify from memory, rather than by reading off the paper. Id.

An opposing party has a right to inspect material used to refresh the witness's memory, but only those portions relating to the matter in suit. CRE 612(2); Clary, 950 P.2d at 656-57; Parks v. Biebel, 69 P. 273, 274 (Colo. App. 1902) (where witness used memoranda from a book containing other...