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Refreshing Memory and the Requirement of Personal Knowledge — Pasta Fagoli

June 15, 2011

Rule 602 tells us that “personal knowledge” is required before a witness may testify.  We normally think of this in terms of competency, or the witness’s right or ability to testify at all: if the witness has no personal knowledge, and if an objection is made on that basis, the witness is not competent and may not testify.  However, Rule 602 uses language  that gives us a much narrower inquiry than just whether the witness has “some” personal knowledge.  The rule requires personal knowledge as to each individual fact to which a witness may testify.

Rule 602. Lack of Personal Knowledge

A witness may not testify to a matter unless … the witness has personal knowledge of the matter. …

So, a police officer who remembers every detail of a particular investigation except the precise time of his arrival at a crime scene is generally competent to testify, assuming he made the appropriate “declar[ation] that [he] will testify truthfully” under Rule 603, because he has personal knowledge.  However, when asked the specific question of the time of his arrival, he may not answer the question.  Personal knowledge has three components:

  1. the witness must have perceived some relevant fact,
  2. the witness must remember what he perceived, and
  3. the witness must be able to communicate what he remembers to the finder of fact.

In this instance, as to the time of arrival, the officer does not “remember what he perceived.”  Therefore, the time of his arrival is “a matter” as to which the officer does not meet the Rule 602 requirement of personal knowledge.

This happens all the time in trials, when a witness cannot remember one or more specific facts about an incident.  Yet, the witness is often allowed to give the testimony.  How does this happen?  The answer is that in some way the lawyer refreshes the witness’s memory, so that when the witness eventually answers the question, he testifies from his own recollection.  The dialogue may go like this:

Q:        Officer, now that you have told us what you observed that evening, will you please go back and tell us what time you arrived on the scene.

A:        [long uncomfortable pause] … I don’t remember the exact time.

Q:        Officer, do you recognize this document?

A:        Yes.

Q:        Please tell the jury what it is.

A:        It is the official report I prepared the night of the incident.

Q:        Please review the report and let me know when you have finished.

            [another pause, this one not so uncomfortable]

A:        Okay, I have reviewed it.

Q:        [taking the report back from the officer] Having reviewed the report, do you now remember the time of your arrival at the crime scene?

A:        Yes, I remember it now.

Q:        What time did you arrive?

A:        I arrived at 4:45 p.m.

The prosecutor used the incident report to refresh the officer’s memory about the time of arrival.  Refreshing the officer’s memory enabled him to meet the requirement of personal knowledge because the officer could then communicate what he remembered about his observations.  Lawyers and judges often refer to this procedure as “refreshing recollection.”

Here is an interesting story about refreshing recollection.  I first heard it when I listened to a taped lecture series on evidence by Professor Faust F. Rossi of Cornell University Law School.  The story goes like this:

An eager young prosecutor was trying one of his first cases, and it was a big one!  His first witness was Mrs. Rossilini, an elderly woman whom he expected to testify that her home had been burglarized while she was cooking her favorite dinner. When the prosecutor asked Mrs. Rossilini what happened on the night of the crime, she responded, with a deep Italian accent: “I donna ruhmembah.”  The prosecutor was startled, and not entirely sure what to do.  He tried various questions to get the witness to explain what happened, and none worked.  As the dialogue continued, the prosecutor became more panicked.  Finally, he remembered a blog he read in evidence class in law school [this part is not in the Rossi version of the story], and asked the judge for a recess.  During the recess, the prosecutor raced across the street to an Italian restaurant.  He returned to the courtroom carrying a steaming hot bowl of Pasta Fagoli, just as the jury was re-entering the jury box.  When the judge directed the prosecutor to ask his next question, he instead held the bowl of Pasta Fagoli so that Mrs. Rossilini could smell it.  He then asked her if she remembered what happened on the night of the crime.  Mrs. Rossilini immediately exclaimed, “I was a cookin’ Pasta Fagoli, when that man (pointing dramatically to the defendant) broke into my house.”  A conviction soon followed.

The story was retold by one of Professor Rossi’s former students, John J. Capowski, who is now a law professor at Widener Law.  John J. Capowski, Evidence and the One-Liner: A Beginning Evidence Professor’s Exploration of the Use of Humor in the Law School Classroom, 35 Ariz. St. L.J. 877, 887 (2003).

So, let’s think about what rule of evidence enables a lawyer to refresh the memory of a witness.  The answer … None!  The manner in which the lawyer refreshes the witness’s memory, like anything else that happens in a trial, is affected by the trial judge’s authority to control the presentation of evidence under Rule 611.  However, a lawyer is allowed to refresh the recollection of a witness so she can testify from memory in the same manner a lawyer is allowed to ask the witness to speak up so the jury can hear her testimony.  Both exercises enable the witness to meet the Rule 602 requirement of personal knowledge.

Well, what about Rule 612?  The rule doesn’t enable the refreshing of recollection.  It relates only to the rights of the opposing party if the memory of the witness is refreshed using a “writing.”

Rule 612. Writing Used to Refresh Memory

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either—

(1) while testifying, or

(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.  …

Even though Rule 612 is not the source of the right to refresh recollection, it is a very important rule.  The procedures it provides benefit the opposing party when the lawyer uses a writing to accomplish the refreshing.

So, imagine that defense counsel wants that benefit in Mrs. Rossilini’s case (wants some Pasta Fagoli), and so argues that the meal is a “writing” under Rule 612, which he would thereby be entitled to inspect, use in cross, and introduce.  Everyone in the courtroom realizes the benefit counsel wants is to eat the Pasta Fagoli.  As the judge is laughing, and about to deny the request, Mrs. Rossilini exclaims: “You can’t have Pasta Fagoli without Chianti!”  Defense counsel responds: “Judge, the label on the Chianti bottle is a writing.”  Request granted for creativity!

If we look at the language of Rule 612 we can see a key point.  If the writing is used to refresh memory during the witness’s testimony (“while testifying”), then the rights conferred by the rule accrue automatically.  However, if the refreshing occurs “before testifying,” then the trial judge has discretion as to whether to allow the adverse party to inspect the document and introduce relevant portions.

2 Comments leave one →
  1. Stephen Burroughs permalink
    June 16, 2011 12:52 pm

    May opposing counsel request a writing be entered into evidence, in order for him to inspect it and use it during cross-examination, when the opposing counsel feels there is a substantial likelihood that the witness used the writing to refresh his memory prior to the testimony?
    For example, suppose a police officer is scheduled to testify tomorrow. The officer thinks, “I better get my facts straight before I take the stand.” He then reviews the police report and memorizes it. He takes the stand the next day:

    Prosecutor: Officer, what time did you arrive at the scene?
    Officer: At exactly 3:37pm.
    Defense Counsel: Objection- The incident occurred 2 years ago. There is no way the officer could remember that. I request access to the police report so that I can inspect it and use it during cross-examination.

    I understand that the judge has discretion as to whether the defense counsel may inspect the police report. Does the officer or the prosecutor have a duty to tell the court that the report was used to refresh the officer’s memory before his testimony?


  2. July 1, 2011 2:52 am

    At this point in time, you have probably already had your question answered, but let me give you a good example of how this situation has played out. Trooper was on the stand. He had no documents with him, but he is remembering this 2.5 year old case like it was that morning. I walked over to the prosecutors table and saw his leather folder on the floor. I picked it up and asked if it was his. He said yes. I opened it up and started looking inside it and asked if the handwritten materials were his. Yes. Asked if they were about the case. Yes. Asked him if he used those notes to remember the incident. Yes. Moved for a mistrial. Mistrial granted because I had previously requested any notes, reports, etc. Constitution guarantees that I get anything that is exculpatory to my client. I needed his notes to be able to properly represent my client. He didn’t provide them to me, and he did it on purpose to make it look like he had superhuman recollection of this defendant. Before we got to the issue of intentional misconduct, the case got worked out from DUI to reckless driving.
    Sort of like the scenario you described.

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