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THE HARDT OF THE MATTERBy: Hon. Frederick Hardt, Circuit JudgeREFRESHING RECOLLECTION AND PAST RECOLLECTION RECORDEDTrial counsel may use the method of refreshing recollection to assist a witness who has no present recollection or memory of a fact. This method may be used on either direct or cross examination. Let’s review the steps trial counsel should follow in refreshing recollection with this scenario:“Detective Smith, at what time did you arrive at the scene of the bank robbery?”“I can’t remember, but it was dark outside.”“Detective, is there any document that would refresh your recollection as to the exact time you arrived?”“Yes, I’m sure it’s in my report.”At this point, you have established the preliminary foundation for refreshing the recollection of the witness. Of course, you have in your file a copy of the detective’s report or whatever document is to be used. First, have the clerk mark the document as an exhibit. Some judges do not require that it be marked. However, even though the document may not be offered into evidence, the better practice is to have it marked for purposes of the record should an appellate court need to review the document shown to the witness. Next, show the document to opposing counsel.“Let the record reflect that I am showing State’s Exhibit No. 12 to counsel.”Now approach the witness (with permission from the judge first) and hand the document to the witness. “Detective, would you please review Exhibit 12 by reading page 2 to yourself.”Witness complies and puts exhibit down.“Detective, does that document refresh your recollection as to the exact time you arrived at the bank that night?”“Why, yes. It was 10:35 p.m.”Remember, the witness may not read from the document. The witness may only testify from his or her present memory after reviewing the document. For example, it would be improper for the detective to testify: “Well, it must have been 10:35 p.m. because that’s what my report states.” A motion to strike this answer on the grounds of inadmissible hearsay should be granted by the judge. The document does not have to be written or prepared by the witness, does not have to be made at the time of the event or occurrence, and does not have to be independently admissible into evidence. In our scenario above, the document used to refresh the detective’s memory could be a dispatch report, a field note or even a newspaper article.Opposing counsel is entitled to cross-examine the witness about the document and may introduce into evidence that portion used to refresh the memory of the witness. In that case, remember that the document is not admissible as substantive evidence but may be considered by the trier of fact to assess the credibility of the witness. Of course, the entire document may be offered into evidence by either side if properly authenticated and if admissible as an exception to the hearsay rule, such as a business record. Whether or not the document is admitted into evidence, the clerk should retain the exhibit for the record. In some situations the refreshing recollection method may not be practical or feasible. Doctors and other expert witnesses often need to frequently refer to their notes or files during testimony. It’s not practical to have the expert refresh his or her recollection over and over again. Here you can use the past recollection recorded method which is an exception to the hearsay rule. (See F.S. 90.803(5)). In the following scenario, we will lay the proper foundation for the use of past recollection recorded:“Doctor, I see you have brought Mr. Jones’ medical file with you today.”“Yes, I have.”“Does the file contain notes of each office visit?”“Yes, it does.”“ Doctor, is it fair to say that at this time you have no independent memory of each office visit?”“Oh, yes, that is correct.”“Were these notes made by you when the office visit was fresh in your memory in order to accurately reflect what transpired during the office visit?”“Well, I dictated the notes immediately after each visit and then the notes were typed by a medical transcriptionist and placed in Mr. Jones’ record.”Now you can ask the witness to read into evidence from the memo or record.“Doctor, what were Mr. Jones’ complaints of pain at his first office visit?”Witness reads from the notes:“The patient reported severe pain radiating from his low back into both legs.”Again, just like refreshing recollection, the document itself is not admitted into evidence unless otherwise qualified under another exception to the hearsay rule. However, the writing is admissible into evidence if offered by opposing counsel. One final point: Remember, if the refreshing recollection method is not successful, you can still try the past recollection recorded method provided you lay the proper foundation. In a future article, we’ll discuss impeachment of a witness through the use of prior inconsistent statements. ................
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