2. Witness Memoranda

Question 1

Can witnesses testify from prepared memoranda?

Answer 1

Generally witnesses can NOT read testimony from prepared memoranda

Question 2

What is required for use of memoranda for refreshed recollection?

Answer 2

1) W testifies it has revived his ‘present’ recollection
- NOT future recollection

2) Be shown the memoranda
- NOT read from memoranda (because it is not authenticated)

Question 3

What are the adverse party’s rights regarding refreshed recollection (Rule 612)?

Answer 3

If W refreshes recollection on the stand

• Introduce memoranda into evidence
• Request production/inspection of memoranda at trial (privilege NOT relevant)
• Cross-examine W re memoranda

If W refreshes recollection before taking the stand => Court’s discretion (as justice requires);

• Request production of memoranda at trial
• Inspect memoranda

Question 4

When may the adverse/own party introduce into evidence recorded recollection?

Answer 4

Proper foundation laid

1) W had personal knowledge
2) W made record/directed another to adopt record
3) W made record timely (at time of event)
4) Record accurately reflects W’s mind
5) W has insufficient recollection

Question 5

What is the difference between refreshing and recorded recollection?

Answer 5

Refreshing recollection

• W can remember
• Adverse party can introduce as exhibit (NOT hearsay exception)

Recorded recollection

• W can NOT remember
• Own party can show to jury (hearsay exception)
• Adverse party can introduce as exhibit (NOT hearsay exception)

Question 6

Are witness memoranda admissible as hearsay?

Answer 6

Yes

- Counts as hearsay exception

Question 7

When can witnesses rely on their memoranda?

Answer 7

Before trial

During trial

Question 8

Does adverse party have discretion to examine the memoranda?

Answer 8

Before trial
- Yes (Adverse party may examine)

During trial
- NO (Adverse party must examine)