Wednesday, January 8, 2014
What's Your Next Exhibit?: Court of Appeals of Kentucky Notes That Documents Used to Refresh Recollection Aren't Exhibits
Except as otherwise provided in the Kentucky Rules of Criminal Procedure, if a witness uses a writing during the course of testimony for the purpose of refreshing memory, an adverse party is entitled to have the writing produced at the trial or hearing or at the taking of a deposition, 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.
The implication of Rules 612 is that a party using a writing to refresh a witness' recollection is not introducing the writing as an exhibit, with the adverse party thereafter having the option of "introduc[ing] in evidence those portions which relate to the testimony of the witness." So, what does that mean in terms of pre-trial disclosure? Let's take a look at the recent opinion of the Court of Appeals of Kentucky in D.L.B. v. Cabinet for Health and Family Services, 2014 WL 26990 (Ky.App. 2014).
In D.L.B., D.L.B. ("mother") appealed, and the Cabinet for Health and Family Services cross-appealed, from the Kenton Circuit Court judgment which involuntarily terminated mother's parental rights with respect to her four children. One of the grounds for the Cabinet's cross-appeal was that the circuit court erred in sustaining D.L.B.'s objection "to the Cabinet's use of a Cabinet record, on redirect examination of a social worker, to refresh the witness's recollection pursuant to KRE 612."
During its redirect examination of the social worker,
the Cabinet gave counsel for mother a copy of...service recordings contained in the Cabinet file, which showed that mother was offered a substance abuse assessment. The Cabinet proceeded to hand the document to the social worker to refresh his recollection. At this point, mother objected, arguing that the Cabinet had failed to disclose this exhibit in accordance with the family court's pretrial order. The Cabinet clarified that it did not intend to offer the document as an exhibit, or introduce it into evidence. Rather, the Cabinet intended to use the document to refresh the social worker's recollection....
In response, the court "sustained mother's objection on the basis that the Cabinet had not identified the document as an exhibit before trial."
On appeal, the Court of Appeals of Kentucky disagreed with this ruling, finding that
nothing in KRE 612 states that the writing used to refresh the witness's memory must be turned over in advance of trial as an exhibit or that the witness must have prepared the writing himself. Indeed, case law has established that the writing used to refresh is not to be considered as an exhibit. See Berrier v. Bizer, 57 S.W.3d 271, 277 (Ky.2001) ("[t]he resulting evidence is the product of the refreshed memory, not the writing used to refresh it; thus, the writing is not introduced into evidence and there is no involvement of the hearsay rule."); Disabled Am. Veterans v. Crabb, 182 S.W.3d 541, 552 (Ky.App.2005) ("[b]ecause the writing is only being used to refresh memory...[it] never acquires independent status as evidence in the case.") (Internal quotations omitted). Thus, the fact that the Cabinet did not disclose the document as an exhibit pretrial is not a basis for excluding its use for purposes of refreshing a witness's recollection.