|
If the victim testifies, but is evasive,
or claims not to remember what happened,
then the prosecution may attempt to refresh
the witness's present recollection (Rule 11-612).
Definition
Rule 11-612: If a witness does not have
present recollection of an event, the witness may use a writing
or anything else to refresh the witness's past recollection, even
if the writing or other memory aid used is itself inadmissible.
If a witness uses a writing to refresh memory for the purposes of
testifying, the court may order that the adverse party be allowed
to inspect the writing, cross-examine the witness on it, and introduce
into evidence those portions relating to the witness's testimony.
Foundation
To use a writing or other memory aid to refresh the recollection
of a testifying witness, a party must show that the witness is having
trouble remembering the incident or event from her own memory.
Note: After the foundation is laid
and the witness has reviewed the writing or other aid, the witness
can be asked to testify from his or her own memory, which has
been revived. The purpose of present recollection refreshed is
to fan back to life a smoldering memory.
Admissibility
The writing or other aid may not be admissible in evidence, and
does not become admissible by the party who called the witness just
because the witness used it to jog her memory. The adverse party,
however, is entitled to have those portions of a writing that relate
to the witness' testimony introduced into evidence for any purpose.
Example
An alleged victim of a domestic violence assault has difficulty
remembering who assaulted her the night when the police came to
her house in response to a domestic disturbance call. The prosecutor
shows her the police report written by the officer who intervened
that night. Reading the police report, the witness now remembers
that her boyfriend beat her up, and so testifies. Her testimony
becomes evidence in the case. The police report is not admissible
into evidence, unless the defendant asks to have the relevant portions
admitted.
|
