EvidenceProf Blog

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

Sunday, June 13, 2010

Refreshment Refresher: Air Force Court Of Criminal Appeals Finds Proper Procedure Followed In Rule 612 Refreshment Of Recollection

Like its federal counterpart, Military Rule of Evidence 612 permits an attorney to refresh a witness' recollection with a "writing," with courts liberally construing the word "writing" to include basically anything (e.g., a photograph, food, or a piece of music). But what if opposing counsel's strategy is to attack a witness' ability to recall details? Can the attorney still refresh that witness' recollection? And what is the generally accepted manner by which counsel may refresh a witness' recollection? Those were the questions answered by the United States Air Force Court of Criminal Appeals in its recent opinion in United States v. Berry, 2010 WL 2265612 (A.F.Ct.Crim.App. 2010).

In Berry, Brandon Berry was found guilty of two specifications of indecent acts, which were allegedly committed against his daughter, HH. Before the court-martial, HH made a recorded statement regarding the acts allegedly committed by Berry. And at the court-martial, the following exchange took place between trial counsel and HH:

Q: And, at any time, did he get under the covers?

A: I don't remember.

Q: Is there anything that I could show you that would refresh your memory?

A: I don't know.

Q: If I showed you your statement, would that refresh your memory?

A: I don't know.


TC: I am handing the witness what was previously marked as Appellate Exhibit XXXIX. [HH], would you please read on page 5 of 8 starting about half way down?

At this point,

defense counsel objected to the manner in which the trial counsel was trying to refresh HH's recollection. Although the military judge overruled the objection, he instructed the trial counsel to retrieve the document from HH before she began testifying again. After retrieving the document, the trial counsel again asked the question that HH had been unable to answer. HH's response was the same as her prior testimony on cross-examination but different from the pretrial statement used to refresh her recollection [The opinion neither indicated how HH testified during cross-examination, nor what she said in her statement].

After the court-martial, Berry appealed, claiming, inter alia, that this exchange between the trial counsel and HH undermined the defense trial strategy of attacking HH's ability to recall details. The United States Air Force Court of Criminal Appeals, finding that all that was relevant was whether the proper procedure was followed in attempting to refresh the recollection of HH. According to the court, the proper procedure is that

(1) counsel must establish that the witness has difficulty in recalling the incident to which she is testifying; (2) counsel should ask whether there is anything that would assist her in testifying; (3) counsel should mark the document as an exhibit and provide it to the witness for review; and (4) counsel should retrieve the document and allow the witness to continue her testimony without direct reference to the reviewed material.

And according to the court, this proper procedure was for the most part followed:

In this case, the trial counsel attempted to refresh HH's memory of the incident that occurred in December 2006. The trial counsel clearly established that HH could not recall whether the appellant went under the covers, she asked HH whether her pretrial statement would help her remember that detail, the trial counsel then marked the statement and gave it to HH, and she retrieved the document from HH before again asking the question. Although HH responded that she was not sure whether the statement would refresh her memory, HH did not say it would not help her as she testified and the trial counsel had a good faith basis for believing that the pretrial statement would help.

Accordingly, the court affirmed.



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