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REFRESHING MEMORY

NCJ Number
56102
Journal
Criminal Law Review Dated: (JULY 1978) Pages: 408-416
Author(s)
M NEWARK; A SAMUELS
Date Published
1978
Length
9 pages
Annotation
CONDITIONS UNDER WHICH A WITNESS SHOULD BE PERMITTED TO REFER TO TESTIMONY NOTES IN THE WITNESS BOX AND BEFORE COMING INTO COURT ARE DISCUSSED, ALONG WITH WHETHER THE NOTES SHOULD BE EVIDENCE UNDER ENGLISH LAW.
Abstract
A WITNESS SHOULD ONLY BE PERMITTED TO USE NOTES IN THE WITNESS BOX TO REFRESH HIS MEMORY WHEN IT IS CLEAR THAT HIS MEMORY OF THE EVENT ABOUT WHICH HE IS TESTIFYING IS EITHER NONEXISTENT OR EXHAUSTED. WHERE THE WITNESS HAS NOT EXHAUSTED HIS MEMORY AND MERELY WANTS TO REFER TO HIS NOTES SO AS NOT TO CONTRADICT HIMSELF, A COURT WILL BE RELUCTANT TO ALLOW THE WITNESS TO REFER TO HIS NOTES. THE NOTES USED MUST HAVE BEEN MADE CONTEMPORANEOUSLY WITH THE MATTER ABOUT WHICH TESTIMONY IS BEING RECEIVED. THIS CONCEPT MUST BE FLEXIBLE, HOWEVER, WITH REFERENCE TO THE TYPE OF EVENT OR INFORMATION RECORDED IN THE NOTES, IN THAT SOME INFORMATION OR EVENTS REQUIRE IMMEDAITE RECORDING TO INSURE ACCURACY WHILE OTHERS MAY BE ACCURATELY RECALLED IN A MATTER OF HOURS OR A FEW DAYS. THE NOTES USED IN TESTIMONY MAY HAVE BEEN MADE BY ANOTHER PARTY, PROVIDED THEY WERE MADE IN THE PRESENCE AND UNDER THE DIRECTION, SUPERVISION, OR DICTATION OF THE WITNESS, OR WERE SIGNED AND ADOPTED BY SUCH WITNESS AS HIS OWN, CONTEMPORANEOUSLY WITH THE INCIDENT. WHERE THE MEMORY OF THE WITNESS IS REVIVED BY REFERRING TO NOTES, HE MAY RELY ON A COPY OF HIS ORIGINAL NOTES, BUT WHERE THE WITNESS IS ONLY ABLE TO SWEAR TO THE RECORD ON ACCOUNT OF HIS HABIT OF ACCURATE RECORDING, THEN ONLY THE ORIGINAL DOCUMENT MAY BE USED BY THE WITNESS. THERE APPEARS TO BE NO OBJECTION UNDER LAW TO THE COMMON PRACTICE OF HAVING WITNESSES READ NOTES BEFORE GOING INTO COURT. WHILE THE USE OF A NOTE TO REFRESH MEMORY DOES NOT AUTOMATICALLY MAKE THE NOTE EVIDENCE, THE OPPONENT, JUDGE, AND JURY MAY INSPECT THE PART OF THE DOCUMENT MATERIAL TO THE CASE. THE OPPONENT IS ENTITLED TO HAVE THE DOCUMENT MADE EVIDENCE IN THE EVENT THERE IS MATERIAL EVIDENCE THEREIN THAT SERVES HIS CASE. SUGGESTIONS FOR REFORM IN THE PRESENT LAW GOVERNING THE USE OF WITNESS NOTES ARE OFFERED. A BIBLIOGRAPHY IS PROVIDED. (RCB)