EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

Wednesday, December 2, 2009

Refreshment Refresher: Fifth Circuit Notes That Basically Anything Can Be Used To Refresh Recollection Under Rule 612

Federal Rule of Evidence 612 indicates that

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. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Implicit in this Rule is the fact that parties can use basically anything tangible to refresh the recollection of witnesses as the recent opinion of the Fifth Circuit in United States v. Carey, 2009 WL 4066672 (5th Cir. 2009), makes clear.

In Carey, a jury convicted Michael Shane Carey of four counts of aggravated sexual abuse of a minor. Carey thereafter appealed, claiming, inter alia, that an improper technique was used during the testimony of the alleged victim, DJ.

Early in DJ's testimony, her inability to answer a question-"Do you remember what happened with you and Michael the first time he touched you?"-prompted the government to show DJ an "officer's recollection of the interview with the witness [DJ]" that DJ had reviewed. Carey argue[d] that the resulting testimony violated Rule 612 because the report did not actually refresh DJ's memory. The government argue[d] that the police report did refresh DJ's memory, and that no part of the record indicate[d] impermissible reliance.

More specifically, Carey first claimed "that a witness relying upon a Rule 612 writing must," and DJ did not, "explicitly declare that the writing has, in fact, refreshed the witness's memory of the subject." The Fifth Circuit disagreed, noting that in Thompson v. United States, 342 F.2d 137, 139-40 (5th Cir. 1965), a case with similar facts, it had found that:

[W]here there was an absence of the customary formalistic wording to show inability to recollect without aid and the refreshing effect of the writing, the context of the specific queries, the witness' spoken reaction and the trial judge's opportunity to observe the witness' demeanor, le[ft] no occasion to find reversible error....

The court then reached the same conclusion in Carey. Carey's second argument was that "the district court erred because it allowed DJ to rely upon a document that DJ did not author, and that contained factual errors."  The Fifth Circuit again disagreed, finding that

contrary to Carey's argument, the admissibility of testimony accompanied by a Rule 612 refreshment does not depend upon the source of the writing, the identity of the writing's author, or the truth of the writing's contents, for "[i]t is hornbook law that any writing may be used to refresh the recollection of a witness."...Even if, as Carey contends, the writing was neither authored by DJ nor completely accurate, these considerations inform only the weight to be accorded by the finder of fact, not the admissibility of DJ's testimony.



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