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Credibility, Memory, and Admissibility: The Differences Between Impeaching, Refreshing Recollection and the Recorded Recollection Exception to the Hearsay Rule

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Credibility, Memory, and Admissibility: The Differences Between Impeaching, Refreshing Recollection and the Recorded Recollection Exception to the Hearsay Rule

What are your options under the Federal Rules of Evidence with a witness’s trial testimony goes differently than you expect? Learn the differences between impeaching a witness to attack the witness’s credibility, refreshing recollection to repair any defects in the witness’s memory, and using the recorded recollection exception to the hearsay rule which allows the admission of an exhibit. Learn when to use each of these three techniques. Then watch an experienced litigator use each technique in the setting of a hypothetical trial. Participants will leave this training with a template they can use anytime they need to apply these three options at trial.

Transcript

- Today, we're going to talk about Credibility, Memory and Admissibility. More specifically, we're gonna talk about the differences at trial between impeaching a witness, refreshing a witness's recollection, and using the recorded recollection exception to the hearsay rule. My goals for this presentation are as follows. By the time you've watched this presentation, I want you to understand the difference between these three techniques, namely impeachment, refreshing recollection, and using the recorded recollection exception to the hearsay rule. I want you to understand the differences between each technique and the impact it has on the fact finder at trial, namely the jury in a jury trial or on the judge in a bench trial. With that in mind, I want you to be able to differentiate between the three techniques and decide when it makes the most sense to use each one so that finally, the next time you are at trial, you feel prepared to do any of these three things. Namely impeach a witness, refresh a witness's recollection, or find a document that you want to offer as an exhibit, as a recorded recollection. Imagine this scenario. Let's say you are at trial defending a federal tort claims act case. Your client, the United States Postal Service is being sued by a plaintiff. This plaintiff claims that she slipped and fell on the sidewalk outside of a United States Postal Service station. You've given your opening, so has the other side, and we're now into witness testimony at trial. It's probably happened to you before that you've prepared for a trial and you think you know what the testimony is going to sound like. But then something happens when a witness is on the stand and the testimony is different than what you anticipated. What are your options? We're going to discuss three of the options that you have under the Federal Rules Of Evidence. And I'm gonna prepare you so that at your next trial, you understand when to use each of these three options and you know how to do it properly. What are these three options? The first is to impeach the witness. This is an attack on the witness' credibility. Remember that the jury does many important things in a jury trial, and the judge does many important things in a bench trial. But one of the important functions of the fact finder in either type of trial is to assess whether or not a witness is credible and should be believed. And impeachment is one way that you give information to the fact finder to help the fact finder function and complete that role. Another option which is different is refreshing recollection. Now as human beings, we're not perfect, we forget things, and refreshing recollection is a way to remedy a problem in a witness's memory so that you can get the testimony out of that witness that you wish the witness had remembered without any prompting. It's not a way to make a witness look less credible. It's a way to get the testimony you want. The third option is to offer an exhibit that is a recorded recollection. That is an exception to the general rule against hearsay. And it allows you to offer statements that are in a document into evidence. You use that, not when you want witness testimony, but when you want to actually get the statements that are in an exhibit into evidence, these are the three options that we're going to talk about. And we're gonna talk about which federal rules justify your use of each of these three options. And when you might want to use them at trial. Let's start by asking what exactly is credibility. In a lot of ways, it's the answer to a very basic question. And that basic question is whether or not the fact finder often a jury, should believe a witness. Remember that at the end of the trial, the fact finder is going to do two really important things. The fact finder is going to take all the evidence that was adduced at trial. All of the witness testimony, all of the photographs, all of the documents that went into evidence and the jury is gonna sort through all of those pieces of evidence and match them up against the legal elements and decide whether or not those legal elements have been met. That's the substantive role of the fact finder. The other role of the fact finder is equally important. The fact finder has to assess credibility. The fact finder has to decide if a witness's testimony is inconsistent or different from a document, which of the two is correct, is the witness's recollection correct? Or is the document correct? If two witnesses disagree in a substantive way from each other, the fact finder is going to decide which of those two witnesses to believe. And so assessing credibility is a very important function of the fact finder because it's one of the ways that the fact finder decides how to weigh and assess that evidence that was UCED at trial and apply it to the substantive law in order to assess credibility, the jury, or the fact finder is going to have to consider a whole variety of different factors. Things like demeanor, if a witness is testifying, does the witness seem to be taking the testimony seriously? The witness's character is this a witness who's lied in the past, or who's done other dishonest things that suggest this witness has the type of character that should not be believed? Perception, whether or not the witness was close enough to the events the witness is describing, or whether the witness was wearing her glasses or whether the witness was intoxicated or anything else that could impair or impact how the witness perceived events that the witness has described to the fact finder. Bias and other improper motives. Is the witness being paid to testify or is the witness affiliated in some way with one party or another to the case? Whether the witness has given contradictory or consistent statements, a witness who's told the same story time and time again is more believable than a witness who seems to change his or her story over time. The existence or non-existence of predicate facts that would support the witness' story. If the witness says that the car was green and there's a photograph that was taken by a camera at the scene of the accident showing a green car, that predicate fact makes the rest of the witness's testimony more likely to be believable. The same thing is true if a predicate fact doesn't exist. And then finally the attitude the witness seems to have towards the case, does the witness seem too invested in a case where a witness should be a neutral bystander? All of these considerations go into the fact finder's ultimate determination of whether or not to believe a witness's testimony. And impeachment is one way that you can elicit some of these factors that go into the assessment of credibility. Credibility is built up and broken down or eroded in different phases throughout trial. Technically you should not be building up or putting in positive evidence of credibility until there's been an attack on credibility. If you try to build up a witness's credibility in advance, that's called bolstering and that's generally not allowed. So you can't put a witness on the stand and right off the bat before there's been any cross examination, have that witness testify about how truthful or honest the witness is, that would be inappropriate bolstering. Now, that being said, there are small ways of building up credibility that are permitted and are not considered inappropriate bolstering. For example, when you qualify an expert witness, you take that expert witness through his or her qualifications, his training, his background, his expertise, that has a way of building up the credibility of the witness. And that's generally allowed calling a witness by an honorific can bolster the witness. If you have a doctor on the stand and you call her doctor instead of misses or miss, that has the effect of building up the witness' credibility. So there are small ways in which we allow bolstering, but as a general matter, you can't introduce evidence to suggest a witness is believable until there has been an attack on that witness. And that attack is what we call impeachment. That's the process of questioning in front of the fact finder, whether or not a witness should be believed. Now, once there has been an attack or an impeachment, then the party who's offering the witness is justified in rehabilitating the witness, putting in positive evidence to counter the negative evidence about credibility. What we're going to focus on in this presentation is that middle phase, the impeachment phase. But remember that impeachment opens the door to the other side coming back and trying to rehabilitate or build back up the witness' credibility. So let's now talk about impeachment specifically,. Impeachment, as you recall, is the process of discrediting a witness with facts that reflect poorly on the witness' credibility. Now there's all kinds of different ways to do it. You can do it just by questioning the witness and you can also do it by introducing other pieces of evidence. And we call other pieces of evidence that are outside the witness' own testimony at trial extrinsic evidence. So maybe there's some other witness who will testify about why this current witness is not believable, or perhaps as I gave in the prior example, there's a photograph of the scene that is inconsistent with the witness's testimony. Those are examples of extrinsic evidence that might reflect negatively on the witness's truthfulness or knowledge. And you can attack a witness's credibility on all sorts of different grounds, you can attack it on the basis of bias, character, competency, contradiction, or omission. All of these things suggest to the fact finder that this witness is not to be believed. The Federal Rules Of Evidence make it clear that anybody can impeach a witness. If you look at Federal Rule Of Evidence 607 it is quite clear that any party, including the party who called the witness is allowed to attack the witness' credibility. This is a change from the old common law rule, which provided that by calling a witness, the attorney who called that witness vouched for the witness and therefore could not impeach or question the witness's credibility, that became incredibly difficult, often in order to meet the elements of a prima facie case, a plaintiff has to call a witness who is going to be hostile to that plaintiff. And so the anti voucher rule under the common law made things very difficult because the plaintiff had to call a witness whose credibility of the plaintiff did not believe in, and yet was prevented from impeaching or attacking the credibility of that witness. There were also circumstances where a witness turned into a turncoat, a witness who one party thought was going to be favorable, all of a sudden changed his or her testimony and started to give unfavorable testimony. And under the old common law rule, there was very little that party could do. By calling the witness, the party vouched for the witness's truthfulness and credibility and couldn't attack it. The Federal Rules Of Evidence have no such anti voucher rule. Anybody can impeach a witness. That being said, it's often advantageous to call witnesses who are going to be helpful to your case. And unless you're calling an adverse witness, you often do not want to impeach or question the credibility of your own witness. Most often you are impeaching or questioning credibility of the other side's witness on cross examination. But under the federal rules, you are permitted to impeach your own witness if you need or want to. Who can be impeached? The answer is anybody who sits in the witness chair, and even some individuals who don't testify live at trial. A lay witness can be impeached. That's a witness who's testifying based on their firsthand perception. Somebody who's an eyewitness to an accident, for example, is a lay witness. An expert witness can also be impeached. That's somebody who by virtue of training and background and expertise is qualified to give certain types of opinions at trial, like an expert neurologist who did a test on the plaintiff and is going to provide information about the test to the fact finder that is beyond the ken or the knowledge of the average person. An expert witness can be impeached just like a lay witness can be impeached. In addition, if a hearsay document is admitted at evidence, then the declarant of that hearsay document can also be impeached under Federal Rule Of Evidence 806. And that's true even if the declarant doesn't testify at trial. So if my out of court statement is offered at trial for its truth, and it's admitted as an exception to hearsay, all of the same evidence that could be offered against me, if I testified live at trial can be offered, even if I don't testify and only my statement is offered at trial. So in essence anyone whose testimony is going to be part of the trial can be impeached. Now, impeachment is not without limits. There are some things that you simply cannot ask about when you're impeaching a witness. First, anything you ask about has to have a good faith basis. You can't just accuse the witness of something if you have no evidence to support that accusation. So if there's a witness on the stand, you can't say to the witness, isn't it true you cheat on your spouse? Unless you have some evidence that the witness is indeed a cheater. Now the evidence doesn't have to be slam dunk. You don't have to be a hundred percent sure, but you do have to have some kind of good faith basis. You can't just make things up to impeach. There are other specific prohibitions in the Federal Rules Of Evidence, for example, Federal Rule Of Evidence 610 prohibits impeachment using as a topic, the witness's religious beliefs. So you can't suggest that somebody is more or less believable because he or she is Catholic or Jewish or Muslim, that is an off limits topic when it comes to impeachment under the federal rules. You also cannot ask one witness to give an opinion on whether or not another witness has been truthful. That is also prohibited. That being said, you can ask a witness, whether they agree with the facts that another witness has provided, and you can ask a witness about an improper bias or motive that another witness has, but you can't ask one witness to give an opinion directly on the truthfulness of another witness. One excellent way to impeach a witness and address credibility is impeachment through use of prior inconsistent statements. Remember at the beginning of the presentation, we talked about all different ways that you can attack credibility. And one of those ways is by showing that a witness is inconsistent, that on different occasions, when asked about the same facts, the witness gave different answers, the inference that can be drawn from a witness who does that, who gives different answers to the same questions on different days, is that the witness is not being truthful or that the witness is being a liar. You can impeach using a witness' own statement of any type. It does not have to be sworn in under oath, although that's certainly nice. As long as it is a statement of that same witness, you cannot impeach a witness with somebody else's statement. So if there are two people who are eyewitnesses to a car accident and a police officer comes to the scene and interviews those same two witnesses, and then later those same two witnesses give depositions and then ultimately testify at trial, if one of the witnesses has told a different story about which car ran the red light to the police officer, as compared to the deposition, as compared to the testimony at trial, that witness could be impeached with his or her own prior statements. At trial, you could confront that witness with the statement that was given to the police officer or the statement that was provided by that same witness at a deposition, but you can't impeach those two witnesses with each other's statements. So if one witness has said all along that the light was red at the time of the accident, and the other witness has said all along that the light was green, at the time of the accident, you can't impeach one of those witnesses with the fact that a different witness has given a statement that is inconsistent. You can certainly offer that evidence at trial and suggest that one of the witnesses is wrong, but it doesn't show that a witness has been telling inconsistent stories or been internally inconsistent that two different witnesses saw two different things, or remember two different things. Now there's a real value to inconsistent statements under the Federal Rules Of Evidence. And that's because they can not only be used for impeachment to question credibility, but in many circumstances, they can also be offered for their substance. That wasn't true at common law, at common law, inconsistent statements could only be used for impeachment. They could only be used to show that the witness told two different stories on two different occasions. Under the Federal Rules Of Evidence, many prior statements come in for their substance, under Federal Rule Of Evidence 801D1A. In order for you to use this exception for the hearsay rule in order for you to get in the prior statement, not only to show that the witness has changed his or her story, but also to show that the original story is the correct one, you usually have to ask a witness a question at trial, elicit the inconsistency, and then you are justified in introducing the prior inconsistent statement. So it's very important under the federal rules to be able to effectively use the technique we're about to talk about because not only does it allow you to get up in closing and argue that essentially the witness has no credibility and shouldn't be believed, but it also means that if you like the witness' initial version of events, you can also argue in closing that those initial versions of events are true and that the jury or the fact finder should believe them. So you get extra umph or extra power from this technique under the Federal Rules Of Evidence. Let's take a look at Federal Rule 613, before we move into the mechanics of how you impeach with a prior inconsistent statement, Federal Rule 613 explains some of the circumstances under which you can use a prior statement and how you have to handle it. Subsection A of the rule makes it clear that when you're asking a witness about that witness's own prior statement, you don't have to show the prior statement to the witness itself, himself or herself, but upon request, you do have to show it or disclose its contents to the opposing party. Breaking it down what this means is that if you are holding in your hand, a trial witness' prior statement saying that the light was green. And now on the stand that witness is saying that the light is red. You can just question the witness about the prior statement without first showing the witness that prior statement. You do have to identify it for opposing counsel. And you'll see when we get to the mechanics of how to impeach with a prior inconsistent statement, I've built that process of showing or identifying the statement for opposing counsel right into the mechanics of how you impeach. Subsection B makes it clear that if there is extrinsic evidence outside evidence of a witness's inconsistency, that's admissible only if the witness is given an opportunity to explain or deny the statement. And the adverse party is given an opportunity to question about it, if justice requires. What does this mean? Well, this means exactly what we talked about on the prior slide. If you're gonna offer the prior inconsistent statement for its substance, you have to ask a question of the witness to elicit the inconsistency at trial. And that witness usually has to have an opportunity to explain the inconsistency, but you don't have to give the witness an opportunity to explain the inconsistency. The other side simply can use their redirect to do that. And you'll see when we get to the mechanics of how to impeach with a prior inconsistent statement, I've structured it to be careful so that you are not giving the witness an opportunity to explain away the inconsistency that's for your opponent to do, if your opponent wants to. There is one exception where you don't have to first question the witness about the inconsistency. And that's where we're talking about an admission by a party opponent as defined under Federal Rule Of Evidence 801D2. So if you are the plaintiff in the case, you can offer anything that the defendant says as substantive evidence, because it's an admission of a party opponent, and you don't have to even worry about getting it in as a prior inconsistent statement. But unless we're in the world where we're talking about party admissions, you do have to generally question the witness about an inconsistency before you can offer the prior inconsistent statement for its substance. Which begs the question, what exactly does it mean for a statement to be inconsistent? There's a strict view and a liberal view. Lucky for us, the Federal Rules Of Evidence take the more liberal view, the strict view is that something has to be diametrically opposite in order to be inconsistent. Two things have to be impossible for both of them to be true. If on one occasion, I said, the letter that was written on the board was the letter A, I would have to testify at trial that what was written on the board was not the letter A in order for there to be a strict inconsistency. The Federal Rules Of Evidence don't require such a technical definition of inconsistency. Instead they take the liberal view. If I testified previously that what was written on the board in the classroom was the letter A and today at trial, I say that what was written on the board in the classroom is the letter B, under the federal rules of evidence that's considered inconsistent. Now, before we get to the mechanics of how to impeach with a prior inconsistent statement, I want you to take a step back and think about why certain statements are credible or believable. Let's talk about some of the common statements that we have in civil cases. One common statement that we have in a civil case is the transcript or the recording of a deposition. Well, why is the testimony that's given at a deposition credible? All sorts of different reasons. One of the major reasons is that it's given under oath, the same oath that the witness would take at trial to tell the truth, the whole truth and nothing, but the truth. Another reason that a deposition transcript or deposition testimony is credible is because of the seriousness of the proceeding. Usually all of the attorneys for all of the parties are present. A list of instructions are given at the beginning. There's a court reporter. It's clear that this is something that is going to be used in the legal case, and that it has serious consequences. Deposition testimony is often closer in time than the testimony given at trial. There's all sorts of different reasons why deposition testimony is credible. When your prior inconsistent statement is in a deposition you wanna highlight for the jury, all of the reasons that you think that deposition testimony was credible, you're in essence, suggesting to the jury that the witness's credibility today at trial is lesser or lower than the credibility that the jury should attach to the statement that was given at a deposition. So when you're building up the credibility piece of the prior statement, and it's a deposition, think about all of the reasons why a deposition is credible or believable. What about a police report? That's another piece of evidence where we find prior statements in civil cases. Now they're not sworn and under oath. Why are they credible? Well, they're credible for different reasons. Often they're very close in time. Often the police arrive at the scene of an accident or the scene of a crime moments after it's happened within an hour, or at least that same day. And so there's a freshness of memory that we attach to statements that are in police reports that make those statements credible. It's also very serious. Usually people believe that they could be subject to penalty if they lie to a police officer. Often there's a vested interest in the parties, making the statements in being correct. They might be the victims of the crime, or he or she might be the person who was not at fault in the accident. And so there's some personal incentive to be truthful to a police officer. There's an understanding that these statements are serious, that they're going to be relied upon, that investigations may be commenced based upon these statements. Now, this list of reasons why the statements are credible, you'll notice is different than the list of reasons for a deposition transcript or a statement given in a deposition. I point this out to highlight to you that when you are impeaching with a prior inconsistent statement, you wanna think about all of the reasons why that prior statement is more credible and those reasons might be different depending on where the prior statement is located. Now let's move on and talk about the mechanics. They're the same every time you wanna impeach with a prior inconsistent statement. These are the four steps. You always do them in this order. Depending on whether or not this is the first impeachment or the 40th impeachment, you can stretch out or highlight certain steps in this process and put more emphasis on them. If this is your 40th impeachment, you probably don't need to put as much emphasis on every step as you did the first time you impeached, but you always wanna follow these steps in this order. The four steps are as follows, first, you confirm the inconsistency. In order, for you to impeach with a prior inconsistent statement, the witness's testimony at trial has to actually be different than the statement that was given prior. And so you always wanna confirm the statement just in case you misheard it or misunderstood it, or the plan or the witness just misspoke and wants to correct himself or herself. So the first step is to confirm the inconsistent statement. Then you wanna credit the prior statement. The method of crediting is going to depend on what the prior statement is. As we just discussed, the reasons why a deposition transcript or deposition testimony is credible are different than why a statement given in a police report is credible. Your questions having to do with crediting are gonna depend on where the prior statement is located. And the number of questions you're gonna ask to credit is gonna depend often on whether or not this is the first impeachment or you've impeached the same witness many times. If this is the 40th time you're impeaching with the same deposition transcript, the fact finder understands that the deposition testimony is more believable and so you can truncate or shorten this step. After you've confirmed and credit, you then wanna confront the witness with the inconsistency and you do this in a very careful way that allows you to keep control and does not provide an opportunity for the witness to explain away the inconsistency. Remember the federal rules say that the witness gets an opportunity to explain, the federal rules do not say that the person who is doing the impeachment has to give the witness that opportunity. You leave it for opposing counsel, you keep control, you confront with the inconsistency, and then you move on to the fourth and important final step, which is to cease. You do not ask one question too many. What's one question too many? Something that is open-ended and gives the witness an opportunity to explain, something like, why are you telling a different story to us today at trial than you told to the police officer? Or an argumentative question like, well, are you lying now, or were you lying then? You stop and move on from the impeachment and either go on to a different topic in your questioning, or you end the questioning entirely once you have confirmed, credited and confronted, with the inconsistent statement, I would say that final step of cease is as important as the three that come perform it. So the four steps to impeaching with a prior inconsistent statement are confirm credit, confront, and cease. Let's see it in action. Here's the scenario. On direct examination, the plaintiff testified the crack I tripped over was an inch and a half deep. During her deposition, the plaintiff testified that the crack was only a quarter of an inch deep. Under the liberal view espoused by the Federal Rules Of Evidence, that's inconsistent. An inch and a half is a different measurement than a quarter of an inch deep. All right, let's see how this would play out as I impeach a witness with a prior inconsistent statement. Let's start by discussing some of your testimony on direct examination. You were asked about the crack where you claimed you tripped.

- Yes.

- You claim that crack was an inch and a half deep.

- Yes.

- This isn't the first time you've been asked that question.

- No, it's not.

- I took your deposition.

- Yes.

- Your counsel was there.

- Yes.

- A court reporter was there.

- Yes.

- You raised your right hand and took an oath.

- Yes.

- An oath to tell the truth.

- Yes.

- And you did tell the truth during that deposition.

- Yes.

- And you had a chance to review and sign the transcript.

- Yes.

- And make any corrections.

- Yes.

- You didn't make any corrections.

- Yes.

- Your honor, approaching the witness with his deposition transcript. For opposing counsel's benefit, I'll be referring to page 17 lines three to four. This is the transcript of your deposition.

- Yes.

- The one you reviewed.

- Yes.

- And that's your signature at the end?

- Yes.

- Please read silently with me while I read aloud your deposition testimony on page 17 lines three to four, I asked how deep was the crack where you tripped and you answered only a quarter of an inch deep. Did I read that correctly?

- Yes.

- So in that example, you saw that I went through all four of the steps of an impeachment with a prior inconsistent statement. First I confirmed the inconsistency. I asked about the testimony I heard on direct. That gave the opportunity to the witness, to correct himself if or if I had misheard it for me to make sure that I actually had an inconsistency. Then I credited the prior statement. I asked a series of questions and got the witness to agree that the deposition testimony was credible and believable, for a variety of different reasons. He was represented by counsel. He knew that his answers were recorded, he took an oath. He understood that he had a chance to change his answers if anything was wrong. All of those were efforts to credit the prior statement. Then I confronted the witness with the prior statement. And did you see how I did it? I didn't let him have any control. I kept control the whole time. I didn't ask him to read the prior statement to him. I didn't ask him what he said, instead, I read the statement to him, asking him to read silently. And the only question I asked him was whether or not I read that statement correctly. And I used vocal emphasis with my voice to illustrate the differences between the testimony today, inch and a half, and the testimony in the deposition, quarter of an inch. And then I ceased, I moved on, I didn't ask one question too many, like, why are you not telling the truth? Or how can you explain the inconsistency? I moved on to another topic. Now let's see a different example. Now let's see an impeachment by prior inconsistent statement, but here, the inconsistency is an omission and this will point out something very important to you about the technique you use when you take depositions. It's very important that you give the proponent an instruction that you need their complete and total answers so that you can set yourself up to impeach by omission. If you later discover at trial that the witness is giving you information at trial that he or she withheld or didn't disclose during the deposition. So here's the example, during the deposition, the plaintiff was asked to list all the areas of his body he claimed he injured in the fall. He mentioned his right elbow and his right wrist. He didn't mention any other areas of his body. However, today, during trial on direct examination, all of a sudden he testified that he also injured his neck in the fall. Now let me impeach him with a prior inconsistent statement that contains an omission. Here we go. Let's talk about where you claim to have been injured after you tripped and fell. On direct examination, I heard you list three different parts of your body.

- I did.

- Your right elbow.

- Yes. Your right wrist.

- Yes. And also your neck.

- Yes, I hurt my neck.

- Now I wanna turn back to your deposition. I gave you an instruction at that deposition before we started asking questions.

- Yes.

- And among those instructions was an instruction about completeness.

- Yes..

- I told you it was critical that you give me complete answers to all of my questions.

- Yes.

- And you agreed to do that.

- Yes.

- And at the end of the deposition, I asked if there was anything else important that you remembered that we hadn't discussed.

- Yes.

- And you said, no.

- I said no.

- And you confirmed, you had completely answered each of my questions during the deposition.

- Yes.

- Your honor, again approaching the witness with his deposition transcript. For opposing counsel's benefit, I'm gonna be referring to page 31 line 17 through 21. This is the transcript from your deposition.

- Yes..

- The one I showed you earlier during this cross examination.

- Yes.

- Please read silently with me while I read aloud your deposition testimony on page 17, line 17 through 21. I asked you, tell me every part of your body, you injured in the fall and you listed two areas.

- Yes.

- Your right elbow.

- Yes.

- Your right wrist.

- Yes.

- You didn't mention your neck.

- No, I didn't mention my neck.

- Okay, so in this impeachment example, I'm focusing on the completeness when I'm crediting the prior statement, but otherwise I'm following the same four steps the same way I did in the prior example. I'm confirming the inconsistency. I'm crediting the prior statement. I'm confronting the witness and keeping control by reading to him rather than having him read to me. And then I'm ceasing, I'm not asking one question too many, which is, are you lying then or are you lying now or how can you explain the inconsistency? And again, I'm using my voice to emphasize the differences between the two statements. Now this should point out to you how important it is to give good instructions during a deposition and not just to give good instructions, but to have the witness buy into and agree to follow those instructions because good instructions during a deposition at the beginning will set you up to have an easy time doing impeachments at trial if you need to. So when should you impeach You impeach when your goal at trial is to draw attention to the fact that the witness is giving inconsistent statements. It's an opportunity not only to offer the prior statements for their truth, but also to attack the witness' credibility. Now, this means that although you are allowed under the federal rules to impeach your own witness, often you're not going to want to, you're going to want your witnesses to appear credible. There are some exceptions. If you have to call an adverse witness, you wanna be prepared to impeach. And if the witness suddenly goes south or changes his or her testimony on the stand becomes a turncoat. That's another time when you may wanna be prepared to impeach. Now let's move on and talk about a different technique. That technique is refreshing recollection. What is refreshing recollection? It's a method of fixing a lapse or a gap in a witness's memory, when that witness is testifying on the stand, it's essentially a way to take a memory that used to be in someone's head and put it back in that person's head so that he or she can testify fluently on the stand at trial. It's a method for ensuring you get better testimony from your witness. It's not a means of attacking credibility like impeachment, which we just discussed. And it's also not a method to offer an exhibit at trial. There is a hearsay exception that allows you to get into evidence statements in and out of court document. And that exception under Federal Rule Of Evidence 8035 is for recorded recollections, but that's different and we'll talk about that at the end of this presentation. The difference between refreshing recollection and using the recorded recollection exception to hearsay turns on whether what you want at trial is testimony today from the witness live at trial, or to introduce a prior statement. When what you want is testimony from the witness live today at trial and there's a problem with memory, in that instance, what you want to do is refresh recollection. Now, why do memories fail? Well, there's all sorts of science that explains reasons why. And I think if you or I were jurors, we would understand lots of these reasons because we would've experienced them ourselves. Time can erase memories. And often trials are years after the events that a witness is testifying about, and many other things have happened in between. And the passage of time has just made memory more falleable. Sometimes stress can make memories less reliable. And certainly for many witnesses being on the witness stand at trial is a very stressful experience. And sometimes witnesses have physiological reasons why there's problems with their memory. Perhaps they've had a traumatic brain injury, especially in a car accident case where somebody was badly injured, there's lots of reasons to understand why a witness's testimony at trial might have some lapses or gaps in memory. The Federal Rules Of Evidence have a way of dealing with these lapses or gaps in memory. And that is through the technique of refreshing recollection. Federal Rule Of Evidence 612 gives us some of the guidelines of what we can and can't do when we're using a writing or a document to refresh a witness's memory. And the scope of the rule clearly applies at trial. In general, you are allowed to refresh a witness' memory with anything, and it does not need to be admissible. And by refreshing recollection, you are not offering that particular document or writing into evidence. Rather you are just using it to trigger the witness' recollection or memory. That being said, anything that you use to refresh the recollection of a witness at trial, you do have to show or produce to the other side. And so be choosy and careful about what you use to refresh recollection, because you might make something discoverable and possibly admissible, if you use it to refresh a witness's testimony. But that being said, there's no limits on what you use to refresh. It does not have to be a piece of evidence that would otherwise be admissible. The key to being able to use this technique is proper preparation of your witness. There are three magic words that the witness needs to say on the witness stand at trial to set you up to refresh recollection and you, when you prep, witnesses need to make it clear that the witnesses can say these words and it will allow you to swoop in and help them with any lapse in memory. And these magic words are, I don't remember. You need the witness to say on the witness stand that he or she is lacking memory in order for you to refresh recollection. If the witness simply testifies and gets the answer wrong, you don't have the door open to refresh recollection. Don't have your witnesses guess instead, tell the witness, look, if you can't remember something, say I don't remember. And then I may be able to help you by showing you something that will refresh your recollection. What can you refresh with? Anything. Even things that are inadmissible. The famous example that people like to talk about is the smell of a ham sandwich. If you have a witness who is an eyewitness to a robbery in a deli, and there was a ham sandwich being prepared at the time of the robbery and smelling the smell of ham will all of a sudden bring that witness back and vividly recall the memory of what the robber looked like, if your witness doesn't remember the robber's features on the stand, you can have your witness smell a ham sandwich to refresh recollection. Why do we allow refreshing recollection with things that are inadmissible? Because as I mentioned before, when you're refreshing recollection, you're not offering into evidence the thing that you are using to refresh the witness's memory, all you are doing is trying to get the witness back on track, and then it's the witness's testimony that's gonna be offered into evidence, not the thing you use to refresh. What are the steps to refreshing recollection? The first step is eliciting those magic words, establishing the witness's lack of memory. Then you have to establish that the witness once had memory that reviewing something would help the witness get a memory back in his or her head. And then you have to set yourself up to have whatever it is you're going to use to refresh in front of the witness. Generally, that means you have to ask for permission to approach opposing counsel and the witness in turn, you give the witness whatever he or she needs to look at, you ask them to review it silently to themselves and look up when they're done, then you take it back. And this is an important step because refreshing recollection is putting the memory back in the witness's head, not having the witness read from a document. If there's a document sitting in front of a witness and you haven't offered it into evidence, it's hearsay and the witness should not be reading from it. So you have to have the witness review whatever you've put in front of them, look up when they're done, and then you take it away from the witness. You then ask the witness, if his or her memory is refreshed. And assuming the witness says, yes, you have the witness testify, and you can use this as many times as you need to, until the witness finally says, yes, my memory is refreshed. So you can show the witness a photograph. And if that doesn't refresh the recollection, show the witness a document. And if that doesn't refresh the witness's recollection, have them smell the ham sandwich. And then when the witness says yes, now I remember, you go right back to where you were in the questioning as if the lapse in memory never happened. Remember, you're not trying to draw attention to credibility. You're just trying to put the recollection back in the witnesses' head. Let's see an example of it in action. We've finished with the plaintiff's case. And we're now in the defense case in chief, and you're calling your first witness, the postmaster of the station, where the plaintiff claimed she fell outside on the sidewalk. The postal service did an investigation on the day of the fall, and at that time measured the depth of the crack. There's an internal United States Postal Service investigative report that has that dimension mentioned in it, but you can't offer it into evidence because the judge has already ruled in advance of trial in motion in limine that it's excluded. Maybe there was some kind of issue in discovery where it wasn't timely turned over. And so now you're precluded from actually offering that investigative report at trial. Instead, you've got the postmaster on the stand and your plan all along was to ask him how deep the crack was when it was measured. But the postmaster is nervous. It's his first time testifying, and he can't remember, this is a perfect opportunity where what you want is the testimony not to offer a document into evidence as an exhibit. And so you want to refresh recollection in a way that quickly gets in and out, puts the memory back in the postmaster's head. And then you can continue on with the testimony as though there was never a lapse in memory in the first place. Okay, let's see what it would look like. Let's switch gears and discuss your investigation of the alleged fall. What steps did you take during the investigation?

- Well, first I inspected the sidewalk area. Next, I interviewed all the employees working that day. Then I entered information into our accident log for the station, and finally I drafted a report.

- Okay, let's start with the first step. Can you describe the inspection for me?

- Well I went out to the front of the station and I looked at every sidewalk paver. I took photographs of each of them. Then I used a ruler to measure any cracks.

- How many cracks did you see?

- Only one.

- How deep was it?

- I can't remember.

- Did you used to know?

- Yes, my investigation was over two years ago. Back then I had a much better memory of all the details.

- Would looking at a report that you drafted around that time help refresh your recollection?

- Yes, I think so.

- Approaching opposing counsel and the witness in turn with something I intend to show the witness to refresh his recollection. I'm gonna show you something. Please read it quietly to yourself and look up for me when you're done. Okay, now that you're done, I'm gonna take that back. Did that refresh your recollection?

- Yes, it did.

- How deep was the crack?

- It was a quarter of an inch deep.

- Okay. So you see that I very quickly was able to use something to put the memory back in the witness's head and that I didn't have him read from what I showed him. I didn't introduce that as an exhibit and offered into evidence, I just continued smoothly on with the testimony, getting the testimony I originally wanted before there was a lapse in memory. So when do you refresh recollection? You refresh recollection when what you want is testimony rather than offering an exhibit into evidence. Why might you want testimony? Well, sometimes testimony is more compelling than a document. It's kind of nice to hear something from the horse's mouth. Sometimes, like in this example, the document itself is inadmissible. It can't be offered into evidence. Sometimes you just don't wanna use the document. You just prefer to have testimony instead. And refreshing recollection is not a method of attracting attention to a lack of credibility, however, you should be aware that it does open the door to cross examination about why the witness didn't remember something that's pretty important to the case. So it's not without risk, but it's not an intentional way of drawing attention to credibility. Now let's move on and talk about the third and final technique, which is offering a statement as a recorded recollection. Before we can understand how to do this properly, we have to take a step back and talk a little bit about the hearsay rule. What is hearsay? It's a three part definition. It's an out of court statement that's being offered at trial for its truth, and it can't be something that's been carved out of the definition of hearsay under Federal Rule Of Evidence 801. Remember earlier in this presentation, we talked about party admissions. They technically meet the definition of hearsay. They're out of court statements and at trial they're often offered for their truth, but they're just definitionally carved out. We just say they're an exception, even though they otherwise meet the definition. And the same thing is true of prior inconsistent statements. They're also carved out of the definition of hearsay under Rule 801. Rule 802 of the Federal Rules Of Evidence gives us the default rule that hearsay is generally inadmissible. It doesn't come in unless there's an exception in a federal statute, the Federal Rules Of Evidence or other rules of the Supreme Court. But there are numerous exceptions to the hearsay rule. There's a whole litany of exceptions in Rule 803 that apply whether or not the declarant, the person who made the statement is testifying at trial or not. Then there's a series of exceptions in federal Rule Of Evidence 804 that only apply when the declarant is unavailable and is not providing testimony at trial. And then if that's not enough we have the residual exception in Federal Rule Of Evidence 807, that catches a whole bunch of other statements. So even though the federal rules technically say that hearsay is excluded, there's lots of exceptions that allow a lot of hearsay in. And one of those exceptions is set forth in Federal Rule Of Evidence 8035, the exception for recorded recollections. What the rule tells us is that although a recorded recollection is technically hearsay when offered for its truth at trial, it nonetheless is going to come in when it meets the following three part definition. It has to be on a matter that the witness once knew about, but now doesn't remember well enough to testify fully and accurately about at trial. The statement has to have been made or adopted by the witness when the matter was fresh in that witness's head. And the statement has to be accurate. It has to actually reflect the witness' knowledge. There's a little wrinkle under Rule 8035. If you are the one who is offering evidence as a recorded recollection, you can have a statement in that document, read into evidence at trial, either by yourself or by a witness, but you can't offer the actual document into evidence. Your opponent the person who is not using the recorded recollection exception to hearsay is allowed to decide that the entire statement comes in. So when do you use this exception to hearsay? You use it when you want to get in a statement that's actually in a document that you yourself or a witness is going to read into evidence at trial. You have to use the specific foundation that's set forth in Federal Rule Of Evidence 8035. And there's no need to reinvent the wheel. Just take that section of 8035 listed as A, B, and C and turn all of those foundational statements into questions that you ask the witness. Unlike other hearsay statements, do keep in mind that there are limitations on how you can use recorded recollections at trial. If you're offering a recorded recollection, you can read from it, a witness can read from it and your opponent can read from it, but only your opponent can make the decision that the entire document is going to come into evidence. What are the steps to using this hearsay exception? Well you follow the same general steps you would use to get any exhibit in front of a witness and to authenticate that exhibit, that's the three magic questions. Do you know what this is, what is it, and how do you know? If you get good answers to those questions, you should be able to authenticate and exhibit through a witness with knowledge. Then you turn to Federal Rule Of Evidence 8035, and you take those three foundational requirements and you turn them into questions, you ask the witness, does this exhibit reflect a matter you once knew about, but now can't recall well enough to testify fully and accurately? Was this exhibit made or adopted by you when the matter was fresh in your memory? And does the exhibit accurately reflect your knowledge? If you ask all of these questions, you should get over any authentication issues and pass any hearsay exception. And then you can offer the statement in the documented into evidence and have it read. Let's see it in action. Let's assume that the postmaster keeps a log of all the alleged trip and falls that happen at the station. Now here, you don't want testimony. You think it would be more compelling for the jury to actually see the postmaster read from the log at trial. And so you want to use the recorded recollection exception to hearsay, to get the log in. Let's see how that would look. Mr Postmaster, let's talk about your station's accident log. What information do you enter into the log?

- I enter the date, time, and location of the alleged accident, the customer's name and contact information, the names of any employees on duty, and a description of how the customer says the accident happened.

- When did you enter information into the accident log?

- Approximately two years ago on the same day as the fall itself, right after the investigation. When I had just finished my interviews and inspection.

- How is your memory now about the details that you entered into the log?

- At the time I entered those details, I knew them all. Today I probably would get some details wrong if I tried to speak just for memory, that's the whole reason we log information like this.

- How accurate is the log?

- Very accurate. We rely upon them at the post office to keep track of any accidents and our response to them.

- Your honor, I have what I've marked for identification purposes as exhibit four, showing to opposing counsel and the witness in turn. Do you know what this is?

- Yes.

- What is it?

- The station's accident log.

- How do you know?

- This is my handwriting and these are my initials next to the entry.

- Is this log the same or substantially the same condition as when you entered information into it?

- Yes.

- Did you used to know the information in this log?

- Yes.

- Do you now know that information well enough to testify fully and accurately?

- No.

- Did you make the log entry when the accident was fresh in your memory?

- Yes.

- Does the log accurately reflect your knowledge of how the accident happened?

- Of course, yes.

- Your honor, at this time I offer exhibit four into evidence. Now, then assuming that it's admitted, I would probably say to the witness, Mr Postmaster, could you please read what the log says about the customer's explanation for the accident?

- The customer says she was wearing loose flip flop sandals and that one flew off of her foot causing her to lose her balance and fall down.

- Okay, so that was a successful use of Rule 8035 to get a piece of evidence that has a statement into evidence at trial. So I wasn't refreshing the witness's memory. I wasn't putting the memory back in his head, but I was setting up a situation where I could offer exhibit four into evidence and have a witness read from it. If opposing counsel wanted, opposing counsel could have the jury take the entire exhibit back, otherwise they would just hear the statement that I or a witness read into evidence at trial. You may have been thinking to yourself, Hey, couldn't that document have been offered as a business record or a public record? And the answer is probably. There's often more than one hearsay exception that would apply to any given exhibit and since recorded recollections have a limitation, it sometimes does make sense to use another hearsay exception instead, but a recorded recollection is a great thing to have in your back pocket at trial, because it does not require as much foundation as a lot of the other hearsay exceptions do. And it doesn't necessarily require the same type of custodian that a business record or a public record might require, anybody who participated in putting together or who adopted a document and now doesn't have sufficient recollection at trial to testify accurately will probably be able to give you a recorded recollection exception, not everybody is going to be able to lay a business record or a public record foundation. So when do you use Federal Rule Of Evidence 8035 instead of refreshing recollection? You use the exception to the hearsay rule when you don't want testimony. When you want testimony in, that's when you refresh recollection. Refreshing recollection keeps the focus on the witness. It allows the witness to look the jury in the eye and speak facts directly to the jury. And sometimes what you want to use to refresh recollection just isn't admissible, for example, the smell of a ham sandwich, that can't be offered into evidence, so sometimes you don't have any choice. You have to refresh recollection and get testimony in. In contrast when what you want is to get a document in, when you have a document and you want that to be read into evidence, then you want to find a hearsay exception. It does take the focus off the witness and put the focus on the document. Sometimes that's what you want. In this particular example that we just saw, I actually think it's more powerful for the jury to hear that this information was contemporaneously recorded and that the post office relies on these recordings, that suggests to the jury that there's good reasons why they might want to rely on that same statement in that recorded document as well, so in this instance, I actually think it's more compelling for the jury to hear a statement read from the document, rather than just to have a witness testify from memory and I'm not sure that it's believable that a witness many years after the accident would remember all the minutia and details that were written in an accident log. So this is an example of where I actually did want the document in. When that's what you want, to get the document read into evidence, you wanna use Federal Rule Of Evidence 8035 rather than refresh recollection. The document itself becomes the evidence, not what any witness says about it. And unlike refreshing recollection, if you're going to use the recorded recollection exception to hearsay, you do have to have something that is otherwise admissible. So it's gonna have to comply with all the other Federal Rules Of Evidence, the only bar in place being hearsay, and you get around or past the hearsay rule by using the exception for recorded recollections in Federal Rule Of Evidence 8035. With this in mind, now you should be ready. The next time you're a trial, you now have three new tools in your tool belt. You know how to impeach to attack credibility, you know how to refresh recollection when the witness forgets something on the stand, and you know how to get a statement in a document read into evidence under Federal Rule Of Evidence 8035, which applies to recorded recollections. So at your next trial, when the witness cell on the stand is testifying in a way that is different than what you planned or different than what you expected, you now know what to do, you've gotta stop and ask yourself, what is your end goal? You don't have to reinvent the wheel. You don't have to come up with a technique on your own. Take the steps that we've outlined here and use them exactly the way you saw them used in those four hypotheticals. First decide what your end goal is. If your goal is to have the fact finder question whether the witness is being truthful, then you want to impeach. If your end goal is to get some helpful and good testimony in, then you may want to refresh recollection. If instead your goal is to introduce the contents of an exhibit, then you wanna use the recorded recollection exception to hearsay. Once you've decided what your goal is, you know exactly what to do. Just follow the steps I've outlined today, and you should be in a perfect position to take an unexpected piece of testimony at trial, and to turn it into something that is useful for your case. Thank you so much for your attention. I hope this is helpful for you in the future at trial.

Presenter(s)

VF
Veronica Finkelstein
Assistant U.S. Attorney
U.S. Department of Justice in Philadelphia, Pennsylvania

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