Writing Used to Refresh Memory — Rule 612

• Jurisdiction: Colorado

Writing Used to Refresh Memory — Rule 612

SUMMARY OF RULE 612

• Recollection of a witness may be refreshed by a document or writing while testifying or before testimony.
• In the discretion of the court, the adverse party is entitled to have the writing produced at the hearing, to inspect and cross-examine the witness regarding it, and to introduce those portions that relate to testimony.
• If a claim is made that the writing used to refresh recollection contains unrelated matters, the court must inspect the writing in camera to excise any unrelated or irrelevant portions.
• Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal.
• If a party fails to produce documents in compliance with a court order, the court shall make any order justice requires.

LEGAL AUTHORITIES

• The handwritten notation on the back of a check properly refreshed the memory of a witness to an event that occurred prior to trial. People v. Clary, 950 P.2d 654 (Colo. App. 1997).

• A witness was allowed to consult a notebook after testifying it would help refresh memory. People v. Huehn, 53 P.3d 733 (Colo. App. 2002).

• Colorado courts have not decided whether a set of selected and identified documents provided to a witness prior to a deposition or trial to assist with recall are discoverable under CRE 612. Some caution is advised regarding an expectation that such disclosure would be protected by the work-product doctrine. Federal courts have applied FRE 612 by use of Fed.R.Civ.P. 30(c) to depositions, but recognize work product under Fed.R.Civ.P. 26(b)(3) where it was not established that the witness had relied on any of the documents to refresh recollection. Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).

PRACTICE TIPS

• Refreshing the recollection of a witness is different from the hearsay exception "past recollection recorded," CRE 803(5). To refresh recollection, the witness reviews the writing to revive his or her memory and then testifies on the basis of present, personal knowledge. The writing is not offered as evidence (although it may be independently admitted), as it is a memory jogging device. A good example is a tax return the witness may need to review to refresh his or her memory of specific amounts or deductions, or a calendar, parenting time log, diary, etc.

• If the witness is not able to refresh his or her memory, the writing may be admissible on its own, or as a past recollection recorded under CRE...