LAW TREK SERIES INSTALLMENT 1: When Your Witness Shuts Down On the Stand

Going to court for any reason is not usually pleasant.

The court environment is purposefully architected to evoke solemnity and gravitas: it can be a scary place.

The most confident personality may find themselves paralyzed with fear or emotion causing a shutdown of memory.

Having to take a seat in the witness chair to testify at trial can be stressful for anyone.

Preparation for trial in the office may help; but you never know how a person is going to perform in the fog of trial.

“I CAN’T REMEMBER.”

HERE IS THE SCENARIIO: YOUR WITNESS HAS BEEN TESTIFYING WELL ANSWERING ALL QUESTIONS ABOUT THEIR RESIDENCE, EDUCATION, AND EMPLOYMENT. BUT AS THE QUESTIONS BECOME MORE DEMANDING THE WITNESS BECOMES SHAKEN AND BEGINS ON AN EMOTIONAL DOWNWARD SPIRAL. THEY ARE ASKED A QUESTION THAT YOU SPOKE ABOUT JUST THE DAY BEFORE, BUT NOW THEY JUST CANNOT REMEMBER. YOU ASK THE QUESTION A ND THE WITNESS JUST STARES BACK AT YOU .
DO NOT PANIC.

SMILE AT THEM (REALLY), AND BEGIN TAKING STEPS TO REFRESH THEIR RECOLLECTION. YOU HAVE IT UNDER CONTROL..

STEP ONE: ESTABLISHING FAILURE OF MEMORY
WELL, THE WITNESS HAS SHUT DOWN AND I S UNABLE TO ANSWER THE QUESTION. YOU KNOW THE WITNESS HAS THE ABILITY TO ANSWER. HERE IS YOUR NEXT QUESTION:

Q: “DO YOU REMEMBER WHAT DATE IT WAS THAT YOU MAILED THE CONTRACT?”
A: “I DO NOT REMEMBER THE DATE RIGHT NOW.”

THAT IS IT. FAILURE OF MEMORY HAS BEEN ESTABLISHED. THAT NOW OPENS THE DOOR FOR YOU TO REFRESH THE MEMORY OF THE WITNESS.

FEDERAL RULE OF EVIDENCE 612 PROVIDES THAT: “A WITNESS MAY USE A WRITING OR OTHER ITEM TO REFRESH MEMORY FOR THE PURPOSE OF TESTIFYING WHILE TESTIFYING, OR BEFORE TESTIFYING.” NY STATE LAW AUTHORITY IS McCarthy v. Meaney, 183 N.Y. 190 (1905).

STEP TWO: ESTABLISHING THAT MEMORY FAILURE CAN BE FIXED

HERE IS THE NEXT QUESTION THAT YOU PUT TO THE WITNESS:

Q: IS THERE SOMETHING THAT EXISTS THAT WOULD REFRESH YOUR MEMORY?

A: YES.

Q: WHAT IS THAT.?

A. I WAS INVOLVED IN AN ACCIDENT ON THE WAY TO MAILING CONTRACT; SO, THE ACICIDENT REPORT WOULD HELP.

Q: I WILL SHOW THAT TO YOU.

STEP THREE: GETTING THE DOCUMENT (OR THING) TO THE WITNESS’S HANDS

NEXT YOU RETRIEVE THE DOCUMENT THAT YOU WILL BE SHOWING THE WITNESS TO REFRESH THEIR MEMORY.

YOU THEN ADDRESS THE COURT: “YOUR HONOR, MAY I HAVE THIS DOCUMENT MARKED FOR IDENTIFICATION PURPOSES ONLY AS PLAINTIFF’S EXHIBIT 10-B.”

THE TRIAL STOPS: THE COURT REPORTER STOPS TAKING DOWN THE TESTIMONY (SEE NEXT SLIDE). YOU HAND THE DOCUMENT TO THE COURT OFFICER OR BAILIFF AND THE REPORTER PLACES AN EXHIBIT STICKER ON THE DOCUMENT (SEE PHOTO RIGHT HAND CORNER), AND WAIT FOR THE DOCUMENT TO BE HANDED BACK TO YOU.

HERE IS A COURT REPORTER. THEY ARE MAGICIANS. THE MACHINE THEY TYPE ON IS A STENOTYPE MACHINE. HERE IS THE LINK TO AN INTERESTING SIX-MINUTE EXPLANATION OF THE SYSTEM THAT IS USED: https://www.youtube.com/watch?v=__JkYUrIglg

STEP FOUR: REFRESHING

THE DOCUMENT HAS BEEN HANDED BACK TO YOU. NOW YOU ASK THE COURT’S PERMISSION TO HAVE THE DOCUMENT HANDED TO THE WITNESS. AFTER SHOWING THE DOCUMENT TO YOUR ADVERSARY, YOU SAY THIS:

“YOUR HONOR, MAY WE HAVE THE DOCUMENT PRESENTED TO THE WITNESS.”

THE DOCUMENT IS THEN HANDED TO THE WITNESS BY THE COURT OFFICER OR BAILIFF. THEN YOU SAY:

“YOU HAVE JUST BEEN HANDED PLAINTIFF’S 10-B FOR ID. CAN YOU PLEASE REVIEW THAT DOCUMENT AND TELL ME IF YOUR MEMORY IS REFRESHED? “

IF THE WITNESS IS HAVING DIFFICULTY FINDING THE INFORMATION THEY NEED TO REFRESH THEIR MEMORY, ASK THE COURT’S PERMISSION TO APPROACH THE WITNESS AND DIRECT THEM TO EXACTLY WHERE THE INFORMATION IS LOCATED IN THE DOCUMENT. YOU SAY:

“YOUR HONOR, MAY I APPROACH THE WITNESS?”

STEP FIVE: PREVENTING PREMATURE TESTIMONY

MANY TIMES THE WITNESS WILL BE SO ELATED THAT THEY CAN REMEMBER THE ANSWER TO THE QUESTION THAT THEY BEGIN BLURTING OUT TESTIMONY OR THEY START READING THE DOCUMENT OUT LOUD. THAT WILL DRAW AN INDIGNANT OBJECTION FROM OPPOSING COUNSEL AND AN ADMONISHMENT FROM THE BENCH. HERE IS WHAT YOU SAY TO THE WITNESS:

“DO NOT SAY ANYTHING UNTIL I ASK YOU A QUESTION. JUST READ THE DOCUMENT TO YOURSELF. LET ME KNOW WHEN YOU ARE FINISHED.

YOU CAN REFRESH THE MEMORY OF A WITNESS USING VIRTUALLY ANYTHING

“I AM SHOWING YOU WHAT HAS BEEN MARKED AS PLAINTIFF’S EXHIBIT 7 FOR IDENTIFICATION. CAN YOU PLEASE EXAMINE THIS EXHIBIT? IS YOUR MEMORY NOW REFRESHED AS TO WHAT COLOR THE DEFENDANT’S PANTS WERE ON THE DAY OF THE ATTACK?”

EVEN PHOTOGRAPHS
“DOES THIS PHOTOGRAPH REFRESH YOUR RECOLLECTION AS TO WHO THE THIRD PERSON WAS AT THE MEETING ON THE NIGHT IN QUESTION?”

OBJECTS: “HOW ABOUT THS?”

OR WEBSITES

YOU CAN USE JUST ABOUT ANYTHING TO REFRESH THE MEMORY OF THE WITNESS. BUT IT IS IMPERATIVE TO ALLOW THEM TO REFRESH THEIR MEMORY FIRST BEFORE ASKING THE QUESTION THAT THEY FORGOT THE ANSWER TO AGAIN.

STEP SIX :TAKING THE REFRESHING EXHIBIT BACK
THE WITNESS HAS NOW REVIEWED THE EXHIBIT. YOU THEN ASK THIS QUESTION:

“IS YOUR MEMORY NOW REFRESHED?”

YOU THEN ASK THE COURT TO HAVE THE EXHIBIT RETURNED TO YOU.
“YOUR HONOR, MAY I PLEASE HAVE THE EXHIBIT RETURNED?”

RETURN TO THE PODIUM

STEP SEVEN: RE-ASKING YOUR QUESTION

YOUR WITNESS’S MEMORY HAS NOW BEEN REFRESHED AND IS READY TO BE RE-ASKED THE QUESTION:

“WHAT WAS THE DATE THAT YOU MAILED OUT THE CONTRACT?”

THAT IS IT. IF YOU ASK THE QUESTION BEFORE YOU HAVE THE EXHIBIT RETURNED TO YOU, HERE IS THE OBJECTION THAT YOU WILL MOST LIKELY HEAR:
“I OBJECT TO THE WITNESS’S READING FROM THE EXHIBIT USED TO REFRESH RECOLLECTION BECAUSE IT IS NOT IN EVIDENCE AND BECAUSE IT IS HEARSAY”
IT IS OKAY. JUST GET THE DOCUMENT AWAY FROM YOUR WITNESS AND ASK THE QUESTION AGAIN.

CAVEAT

KEEP IN MIND THAT AN ADVERSE PARTY IS ENTITLED TO HAVE THE WRITING PRODUCED AT THE HEARING, TO INSPECT IT, TO CROSS-EXAMINE THE WITNESS THEREON, AND TO INTRODUCE IN EVIDENCE THOSE PORTIONS WHICH RELATE TO THE TESTIMONY OF THE WITNESS. SO YOU HAVE TO BE CAREFUL OF THE DOCUMENTS OR THINGS THAT YOU USE TO REFRESH THE WITNESS’S RECOLLECTION


DISTINGUISH REFRESHING RECOLLECTION FROM PAST RECOLLECTION RECORDED

Refreshing recollection IS different from past recollection recorded. If the witness has no present memory of the fact after examining the document or notes, the witness will not be permitted to read from the document or notes unless they are admitted into evidence. Since writings are typically hearsay, they will not be admitted unless they qualify as an exception to the hearsay rule.

CHEAT SHEET

Witness knows the facts, but has a memory lapse on the stand.
Witness knows the exhibit will refresh their memory.
Witness is given and reads the document.
Witness states their memory has now been refreshed.
Witness now testifies to what they know, without further aid of the exhibit.


YOUR CHEAT SHEET

Ask “Do you remember?”
Mark the exhibit (it should be marked for identification purposes even though it is not offered into evidence – no need to lay foundation).

Show to opposing counsel, they are entitled to inspect the writing and cross-examine the witness concerning it

Get the exhibit back from the witness before you ask the questions otherwise opposing counsel can object.

LAST LOOK. AND GOOD LUCK ON TRIAL

LAW TREK® SERIES END OF INSTALLMENT 1

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