Friday, February 24, 2012
If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
So, let's say that, in response to a forgetful child witness, the prosecutor reads questions and answers from a transcript of the witness' prior testimony aloud and asks the child to confirm that the transcript was accurate. Is this procedure proper? According to the recent opinion of the Supreme Court of Arkansas in Sullivan v. State, 2012 WL 580595 (Ark. 2012), the answer is "yes." I disagree.
In Sullivan, the facts were as stated above, with Cameka Sullivan convicted for permitting the abuse of her minor child and hindering the apprehension or prosecution of her child's abuser. Sullivan's child, Z.B., was the forgetful witness, and her prior testimony came at the trial of the man who was alleged to have actually abused her.
In her appeal, Sullivan claimed that the procedure used by the prosecutor was improper because it treated Z.B.'s prior testimony as prior consistent statements when it was in fact inadmissible hearsay. The State countered that Sullivan
mischaracterize[d] the State's use of Z.B.'s former testimony as a prior consistent statement. The State point[ed] out that it did not offer the former testimony into evidence at all but used it only demonstratively, after Z.B. had been impeached, to refresh her recollection of the circumstances of Lyons's abuse of L.B. some five years earlier. Thus, the State contend[ed] that it properly used the transcript of Z.B.'s former testimony to refresh her recollection pursuant to Rule 612 of the Arkansas Rules of Evidence....
The Supreme Court of Arkansas agreed, concluding that
A witness may occasionally consult a writing to refresh her memory, but it is her testimony and not the writing that is to be the evidence....However, a witness may not read a transcript into evidence, as that is beyond the bounds of refreshing recollection....To allow a witness's memory to be refreshed and the extent to which the witness may refer to writings to refresh his memory are all decisions within the sound discretion of the circuit court that are not reversed on appeal unless the circuit court has abused that discretion....Here, we defer to the circuit court's superior position to judge the extent to which the prosecuting attorney and witness were referring to the transcript rather than reading it into evidence. We cannot say the circuit court abused its discretion here as the eleven-year-old child witness had indeed been impeached and was testifying to matters she had testified to some five years previously at the age of six years.
I disagree with this conclusion for a few reasons, not the least of which is that a document used to refresh a recollection should not be read out loud so that the jury can hear it. As the Superior Court of New Jersey, Appellate Division, noted in Labas v. Esquivel-Molina, 2006 WL 2085411 (N.J.Super.A.D.,2006),
The correct practice when utilizing a writing for the purpose of refreshing a witness's recollection, is for the witness to first be given the opportunity to read the document privately, to himself or herself, and then inquire whether the contents of the writing has refreshed the witness's memory. This manner of proceeding is intended to prevent the unwarranted disclosure to the factfinder of potentially prejudicial incompetent evidence.