Recollections Refreshed and Recorded

• Author: Len Niehoff
• Pages: 39-42

Published in Litigation, Volume 47, Number 3, Spring 2021. © 2021 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be

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Recollections

Refreshed and Recorded

LEN NIEHOFF

The author is Professor from Practice at the University of Michigan Law School, of counsel to Honigman LLP

in Ann Arbor, and an associate editor of Litigation.

Witnesses forget stuff. When they do, the evidence rules give us

two tools to help solve the problem. Lawyers call one “refreshed

recollection” and the other “past recollection recorded,” labels

just similar enough to guarantee confusion. Nevertheless, these

principles get at very different things and are well worth the ef-

fort necessary to distinguish and understand them.

So how do we get there?

Let’s begin with a story—a true one, even. The place is Ann

Arbor. Specifically, the University of Michigan Law School, where

I teach. It’s August 2005. A truck runs into a car stopped at a traf-

fic light. The impact is so great that it forces the car into another

one, which strikes yet another. The truck drives away. The driver

doesn’t even pause to see if anyone is hurt.

A remarkable phenomenon brings this generic traffic accident

to the attention of the Associated Press and a leading television

morning talk show. On this particular day, a squad of cheerlead-

ers from the neighboring town of Ypsilanti happens to be in Ann

Arbor for a camp being conducted by the Universal Cheerleaders

Association. The young women and their coach, Patricia Clark,

witness the accident. They see the truck pull off and head down

the street. Coach Clark springs into action, chases the truck, and

gets a good look at its license plate number.

To her team, she yells out, “Remember this!” Then she calls

out the number. The cheerleaders begin repeating it over and

over. Then they come up with an idea. To make sure they recall it

accurately until they have a chance to write it down, they trans-

form it into a cheer. “[We] just turned it into a big chant,” ob-

served Kimmie Ostrowski, a team captain later interviewed about

the events on the NBC Today program.

Later, the team provides the license number to the police,

who—using it—successfully track down the driver.

As far as we can discern from the reporting on those events, no

serious injury to person or property resulted from the accident.

The driver faced, at most, a misdemeanor charge for leaving the

scene. No trial occurred.

But, as I’m a law professor, my job description includes trying

to tease out the lessons that emerge when we imagine alterna-

tive universes in which facts play out a little differently. So let’s

switch up the facts and see what happens.

First, let’s assume that the occupants of the cars did, indeed,

suffer extensive injuries from the collision. Let’s further assume

that the prosecutor has charged the truck driver with felony

reckless driving. And that the defense has refused to concede

any facts, forcing the prosecution to present its proof.

The prosecutor’s first order of business is to establish that the

truck was at the scene of the crash.

Imagine that, at the time of the accident, Coach Clark had

found her way to a pen and paper, listened to the chant of

her cheerleaders, recognized it as correct, and written down

“HTNRN 666 3X”—the number that she saw on the plate and