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Thursday, July 25, 2024

Refreshing a witness’ memory

“Where the witness is permitted to use a memorandum when on the witness stand, he may be cross-examined as to the same and it may be inspected by the cross-examiner”

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Not all documents presented to a witness during trial has to be marked in evidence.

There are times a document is presented to the witness only to refresh his or her memory since it might have grown hazy over time.

The stimulus is the document that helps the witness recollect matters within his personal knowledge.

The purpose of refreshing the recollection of a witness is to enable both witness and his present testimony to be put fairly and in their proper light before the court (Evidence, Francisco citing People v. Zamora).

However, “[i]f you allow him to consult notes, you partly lose the advantage of that lively and quick examination which does not give bad faith time to think” (Evidence, Francisco citing Betham, Rationale Judicial Evidence).

“A witness may be permitted to read or consult a writing… [to] refresh… his recollection and then testify as to the matters… which his memory has been refreshed… [A]nd the fact that the witness did not recall the transaction until [he]… [has been] refreshed… does not [mean] that his testimony is without probative force” (Evidence, Francisco).

“Where the witness’ memory is revived, and he… recollects the facts and swears to them, the evidence is the testimony… and not the writing (or record)… used to stimulate his memory.” If “the perusal of a memorandum revives the memory of a witness, he should then testify… without the aid of the writing (or record)” (Evidence, Francisco citing 98 C.J.S 85-87). This is known as present recollection revived.

In order for a document to be admissible as a record of the witness’ past recollection, a proper foundation must be laid by showing that the witness once knew the facts narrated in the memorandum, that he recollects the making of the memorandum, and that it was truly made so that he can swear that it is correct (Evidence, Francisco).

A witness should not be allowed to see, consult, or refer to a memorandum for the purpose of refreshing his memory unless it appears that it is necessary for him to testify. It is proper to refuse to permit the use of the writing when the witness has a clear, distinct and independent recollection of the facts (Evidence, Francisco).

Under the 2019 Rules on Evidence, reference by a witness to a memorandum is allowed to refresh his memory respecting the fact that it was “written or recorded by himself or herself, or under his or her direction, at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his or her memory and he or she knew that the same was correctly written or recorded” (Section 16, Rule 132).

Generally, where the present independent recollection of the witness is revived, the use of the paper is proper regardless of whether or not it was made contemporaneously with the event to which it relates, and the trial court does not abuse its discretion by permitting the use of a memorandum made a substantial time after the event (Evidence, Francisco citing 98 C.J.S. 97-98).

“Where the witness is not testifying from his present independent recollection, he may use a writing which he made; but it has been held that he may not testify on the basis of a writing which was not made by him or under his direction” (Evidence, Francisco citing 98 C.J.S 94-96).

In simpler words, a witness may testify on the writing of another only from his past recollection, if made under his direction.

In the same 2019 amendment to the Rules on Evidence, “[A] witness may also testify from such a writing or record, though he or she retains no recollection of the particular facts, if he or she is able to swear that the writing or record correctly stated the transaction when made; but such evidence must be received with caution” (Section 16, Rule 132).

Where a witness has no independent recollection, but testifies merely from his knowledge or belief in the accuracy of the paper, it is proper that the paper should be put in evidence, or read to, or allowed to go before, the court as auxiliary to the witness’ testimony or as statement adopted by him (Evidence, Francisco).

This is known as past recollection recorded.

“The reason for this rule is that ‘…the oral testimony of the witness would amount to nothing if standing alone, because, after the examination of the memorandum, the witness concedes that his testimony is not a statement of what he then recalls in relation to the subject-matter… but… what he now knows in relation to the correctness of the memorandum…’” (Evidence, Francisco).

“But if her present memory is less effective, it is sufficient if the witness testifies that she knows the memorandum is correct because of a habit or practice to record matters accurately or to check them for accuracy…it is even sufficient if the individual testifies to recognizing her signature on the statement and believes the statement is correct…” (Johnson v. State, 967 S.W.2d 410).

The use of memoranda or documents is permissible to refresh the memory of a witness as to the date of an occurrence, the age of an individual, his physical condition at a certain time, the names and addresses of persons who witnessed an accident, and the place where the witness was on a certain day (Evidence, Francisco).

It may also include physical measurements, the whereabouts of plaintiff at the time of the filing of the suit, the contents of a lost contract, the figures of an account, the articles sold to a certain person, or the articles on the taking of which an action is based, or the birthplace of the witness (Evidence, Francisco).

Where the witness is permitted to use a memorandum when on the witness stand, he may be cross-examined as to the same and it may be inspected by the cross-examiner, since in no other way can the accuracy and recollection of the witness be ascertained.

It is only by the inspection of the paper and such cross-examination that it can be ascertained whether the memorandum does assist the memory or not (Evidence, Francisco; see Section 16, Rule 132).

Despite all these, “[t]he use of memorandum by a witness during his examination to revive or refresh his recollection rests largely in the discretion of the court [which must not be abused].”

This is clearly inferred from the very wording of the rule which states: “A witness may be allowed to refresh his [or her] memory” (Evidence, Francisco).

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