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Evidence and Trial Advocacy Workshop

NCJ Number
Criminal Law Bulletin Volume: 20 Issue: 5 Dated: (September-October 1984) Pages: 430-441
M H Graham
Date Published
12 pages
Rules regulating the exclusion of witnesses from trials and the refreshment of a witness's memory during a trial are reviewed.
Witnesses who cannot recall at trial a matter of which they once had personal knowledge may have their recollection refreshed. A party may refresh the recollection of a witness on direct examination by either a leading question or by showing a writing to the witness. When refreshment of recollection is through a writing, counsel hands the writing to the witness and requests that the witness read the writing silently. If the witness's recollection is then refreshed, counsel repeats the initial question. Any writing may be used for this purpose, with the only question being whether the writing is genuinely calculated to revive the witness's recollection. As protection against abuse, opposing counsel has the absolute right to inspect the writing, to cross-examine the witness regarding it, and to introduce into evidence those portions which relate to the testimony of the witness. In another vein, if witnesses hear the testimony of others, they may be influenced either consciously or unconsciously to alter their own testimony. Therefore, Federal Rule of Evidence 615 requires the court, at the request of a party, to order witnesses excluded. The court may also order exclusion on its own motion, and it may take further measures to prevent communication between witnesses. Footnotes are provided.