Lawyers call one “refreshed recollection” and the other “past recollection recorded,” labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are …

Oct 1, 2024 · AND WHEN AND HOW TO USE PAST RECOLLECTION RECORDED IF A WITNESS ONCE HAD PERSONAL KNOWLEDGE OF A FACT BUT CANNOT RECALL THAT FACT WHILE …

A writing (or essentially any other material) can be used to refresh a witness’s recollection, even if it is not itself admissible and regardless of whether the witness created it or has even seen it before.

Ask if something will refresh recollection, referring to the writing to be used. If witness says “no”, ask if witness once had personal knowledge of the fact he has now forgotten. Witness should say “yes”, …

As the writing is only being used to refresh recollection, the writing is not admitted, nor are its contents disclosed to the finder of fact except as provided by subdivision (2).

The first two elements of the foundation for using a document to refresh recollection go hand-in-glove. Those are 1) to establish that the witness once knew the answer to the question, but 2) has forgotten …

HOW: FOUNDATION Personal knowledge of the fact, No longer has sufficient present recollection even after reviewing, Recorded it while fresh, Accurately recorded.