Refreshed Memory vs. Can’t Remember

By Monte E. Hester; July 2000

     Evidence Rule 612 is intended to give a witness who is testifying from memory the benefit of using almost any resource available to refresh his recollection when the memory needs to be restored.  The resource used conceptually is to be a tool that restores recall of the matter enabling the witness to thereafter testify based upon the witness’s current personal reflections.  See U.S. v. Rappy, 157 F.2d 964, 967 (2d Cir. 1946), State v. Huelett, 92 Wn.2d 967, 603 P.2d 1258 (1979).

     If a witness has no recollection and can’t testify from his or her independent memory, then it is objectionable for the witness to continue to testify from the contents of whatever resource is being utilized as a claimed means of refreshing recollection.

     The rule also gives the opposing party a right upon request to receive a copy of the document or other resource and to use its contents as evidence or for purposes of cross examination.

     The danger of objecting to the use of materials to refresh recollection when it appears that the witness has no independent recollection is that a worthy opponent might well then attempt to offer the content of the resource under Hearsay Rule 803(a)5.

     Evidence Rule 803(a)5 is titled “Recorded Recollection.”  It is different from recollection refreshed.  Under 803(a)5, a prior written statement or recording reflecting the witness’s prior personal knowledge of an event may be admissible if foundation is made which establishes that the writing or recording relates to a matter about which the witness once had personal knowledge and about which the witness now has such a scant recollection that the witness is unable to testify fully and accurately. The writing or recording that is offered must be one that was made or adopted by the witness when the matter was fresh in his or her memory and which accurately reflects the witness’s prior knowledge.

     If the foundation requirements are satisfied, then the content of the writing or recording is admissible, however, the document or recording is not.  See State v. Mathes, 47 Wn.App. 863, 737 P2d 700 (1987).

     In State v. Alvarado, 89 Wn.App. 543, 949 P.2d 831 (1998), the witness purported to have no recollection of an event and testified that he was unable to verify a recorded statement given orally to the police which by its content indicated that the witness was an eyewitness to a murder committed by the defendant.  The court allowed the content of the recording as evidence.  The trial court felt that detailed notice of the statement and other circumstantial factors suggested the statement was accurate.  The appellate court agreed saying that a trial judge should consider whether the witness claimed accuracy at the time of the statement and whether the recording process is reliable and whether other indicia of reliability established the trustworthiness of the statement.

     Watch out for the opponent that has a witness who doesn’t testify well but looks good on paper per a statement given to another or sounds good in a recorded response to leading questions.