Under the rules of evidence, one way to get a witness to remember the answer to a question is by refreshing the witness’s recollection. An attorney can refresh their witness’s recollection by showing them a document that will jog their memory and then take the document away and ask the same question again.
Witnesses forgetting an answer to a question during trial is a common occurrence. It can happen for many reasons, such as an attorney asking a lousy question, the witness being nervous, or the event that happened a long time ago, and it is hard to remember all of the details. If a witness can’t remember the answer to a question, there is no reason to worry because the rules of evidence allow you to help jog their memory as long as you follow a few simple steps.
Steps to Refreshing a Witness’s Memory
When refreshing a witness’s recollection, the first step is to have the witness admit that they do not remember the answer. For example, an attorney may ask their witness, “what color was the car that hit you?” The witness must then respond with “I do not know,” “I cannot remember,” “I do not recall,” “I used to know, but I cannot remember,” or something of the like. If they say one of these phrases, then the first step is complete. However, not all witnesses are going admit they do not know because they may be nervous or embarrassed and so the attorney can also ask, “do you remember?” If they say no, the first step is accomplished.
The next step is to show that the witness previously remembered the information. To continue with the car theme above, an attorney could ask, “did you used to know what color the car that hit you was?” If the witness answers in the affirmative, then the second step is completed.
Step three, the attorney must ask the witness if anything would help refresh their memory. For example, the attorney may ask, “is there anything that would help you remember?” Or they could ask a more pointed question like “would it help if you looked at your police report?” Again, if the witness answers yes or explains what would help them remember, the attorney can move on to the next step.
Now the next few steps follow quickly in sequence. The attorney must show the document or piece of evidence that the witness stated will help jog their memory to the opposing counsel. Then the attorney may bring evidence to the witness for them to look at. Once the witness is given time to refresh their memory, the attorney must ask if the witness’s memory has been refreshed. If the witness states that it has, the attorney may then ask the question again.
It is always good practice for the attorney to either take the evidence back or have the witness turn it over before asking the question. This is because the rule requires that the witness answer the question from their memory instead of reading it.
Hopefully, you do not run into this issue during trial, but if you do, it is crucial to have these steps down so that you continue to convey confidence during a trial.
Thanks to Eglet Adams for their insight on refreshing a witness’s recollection. As car accidents lawyers, Eglet Adams has the experience and understanding of when it is useful to refresh a witness’s recollection.