How to refresh a witness's memory on the stand. It happens all the time: your finely-prepped star witness freezes on the stand. What do you do? Well, here is the answer. The first installment of the Lawcraft Series by Joseph D. Nohavicka. Good luck with your trial!

1. LAWCRAFT SERIES INSTALLMENT 1
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: When Your Witness Shuts Down On the Stand
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“ANOTHER KIND OF LAWFIRM”

2. Going to court for any reason is not usually
pleasant.
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3. The court environment is purposefully architected to
evoke solemnity and gravitas: it can be a scary place.
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4. The most confident personality may find themselves
paralyzed with fear or emotion causing a shutdown of
memory.
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5. Having to take a seat in the witness chair to
testify at trial can be stressful for anyone.
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6. Preparation for trial in the office may help; but you never know
how a person is going to perform in the fog of trial.
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7. “I CAN’T
REMEMBER.”
HERE IS THE SCENARIIO: YOUR
WITNESS HAS BEEN TESTIFYING WELL
ANSWERING ALL QUESTIONS ABOUT
THEIR RESIDENCE, EDUCATION, AND
EMPLOYMENT. BUT AS THE
QUESTIONS BECOME MORE
DEMANDING THE WITNESS BECOMES
SHAKEN AND BEGINS ON AN
EMOTIONAL DOWNWARD SPIRAL.
THEY ARE ASKED A QUESTION THAT
YOU SPOKE ABOUT JUST THE DAY
BEFORE, BUT NOW THEY JUST
CANNOT REMEMBER. YOU ASK THE
QUESTION A ND THE WITNESS JUST
STARES BACK AT YOU .
DO NOT PANIC.
SMILE AT THEM (REALLY), AND BEGIN
TAKING STEPS TO REFRESH THEIR
RECOLLECTION. YOU HAVE IT UNDER
CONTROL..
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8. STEP ONE: ESTABLISHING
FAILURE OF MEMORY
WELL, THE WITNESS HAS SHUT DOWN
AND I S UNABLE TO ANSWER THE
QUESTION. YOU KNOW THE WITNESS
HAS THE ABILITY TO ANSWER. HERE IS
YOUR NEXT QUESTION:
Q: “DO YOU REMEMBER WHAT DATE IT
WAS THAT YOU MAILED THE
CONTRACT?”
A: “I DO NOT REMEMBER THE DATE
RIGHT NOW.”
THAT IS IT. FAILURE OF MEMORY HAS
BEEN ESTABLISHED. THAT NOW OPENS
THE DOOR FOR YOU TO REFRESH THE
MEMORY OF THE WITNESS.
FEDERAL RULE OF EVIDENCE 612
PROVIDES THAT: “A WITNESS MAY USE A
WRITING OR OTHER ITEM TO REFRESH
MEMORY FOR THE PURPOSE OF
TESTIFYING WHILE TESTIFYING, OR
BEFORE TESTIFYING.” NY STATE LAW
AUTHORITY IS McCarthy v. Meaney, 183
N.Y. 190 (1905).
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9. STEP TWO: ESTABLISHING
THAT MEMORY FAILURE
CAN BE FIXED
HERE IS THE NEXT QUESTION THAT
YOU PUT TO THE WITNESS:
Q: IS THERE SOMETHING THAT EXISTS
THAT WOULD REFRESH YOUR
MEMORY?
A: YES.
Q: WHAT IS THAT.?
A. I WAS INVOLVED IN AN ACCIDENT
ON THE WAY TO MAILING CONTRACT;
SO, THE ACICIDENT REPORT WOULD
HELP.
Q: I WILL SHOW THAT TO YOU.
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10. STEP THREE: GETTING THE
DOCUMENT (OR THING TO
THE WITNESS’S HANDS
NEXT YOU RETRIEVE THE DOCUMENT
THAT YOU WILL BE SHOWING THE
WITNESS TO REFRESH THEIR MEMORY.
YOU THEN ADDRESS THE COURT:
“YOUR HONOR, MAY I HAVE THIS
DOCUMENT MARKED FOR
IDENTIFICATION PURPOESE ONLY AS
PLAINTIFF’S EXHIBIT 10-B.”
THE TRIAL STOPS: THE COURT
REPORTER STOPS TAKING DOWN THE
TESTIMONY (SEE NEXT SLIDE). YOU
HAND THE DOCUMENT TO THE COURT
OFFICER OR BAILIFF AND THE
REPORTER PLACES AN EXHIBIT STICKER
ON THE DOCUMENT (SEE PHOTO
RIGHT HAND CORNER), AND WAIT
FOR THE DOCUMENT TO BE HANDED
BACK TO YOU.
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11. HERE IS A COURT REPORTER. THE MACHINE THEY TYPE ON IS A STENOTYPE
MACHINE. HERE IS THE LINK TO AN INTERESTING SIX-MINUTE EXPLANATION OF THE
SYSTEM THAT IS USED: https://www.youtube.com/watch?v=__JkYUrIglg
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12. STEP FOUR: REFRESHING
THE DOCUMENT HAS BEEN HANDED
BACK TO YOU. NOW YOU ASK THE
COURT’S PERMISSION TO HAVE THE
DOCUMENT HANDED TO THE
WITNESS. AFTER SHOWING THE
DOCUMENT TO YOUR ADVERSARY,
YOU SAY THIS:
“YOUR HONOR, MAY WE HAVE THE
DOCUMENT PRESENTED TO THE
WITNESS.”
THE DOCUMENT IS THEN HANDED TO
THE WITNESS BY THE COURT OFFICER
OR BAILIFF. THEN YOU SAY:
“YOU HAVE JUST BEEN HANDED
PLAINTIFF’S 10-B FOR ID. CAN YOU
PLEASE REVIEW THAT DOCUMENT
AND SEE IF YOUR MEMORY IS
REFRESHED? “
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13. STEP FOUR: (CONT’D)
IF THE WITNESS IS HAVING
DIFFICULTY FINDING THE
INFORMATION THEY NEED
TO REFRESH THEIR
MEMORY ASK THE
COURT’S PERMISSION TO
APPROACH THE WITNESS
AND DIRECT THEM TO
EXACTLY WHERE THE
INFORMATION IS LOCATED
IN THE DOCUMENT. YOU
SAY:
“YOUR HONOR, MAY I
APPROACH THE WITNESS?
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14. STEP FIVE: PREVENTING
PREMATURE TESTIMONY
MANY TIMES THE WITNESS WILL BE SO
ELATED THAT THEY CAN REMEMBER
THE ANSWER TO THE QUESTION THAT
THEY BEGIN BLURTING OUT
TESTIMONY OR THEY START READING
THE DOCUMENT OUT LOUD. THAT
WILL DRAW AN INDIGNANT
OBJECTION FROM OPPOSING
COUNSEL AND AN ADMONISHMENT
FROM THE BENCH. HERE IS WHAT YOU
SAY TO THE WITNESS:
“DO NOT SAY ANYTHING UNTIL I ASK
YOU A QUESTION. JUST READ THE
DOCUMENT TO YOURSELF. LET ME
KNOW WHEN YOU ARE FINISHED.
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15. YOU CAN REFRESH THE
MEMORY OF A WITNESS
USING VIRTUALLY ANYTHING
“I AM SHOWING YOU
WHAT HAS BEEN MARKED
AS PLAINTIFF’S EXHIBIT 7
FOR IDENTIFICATION. CAN
YOU PLEASE EXAMINE THIS
EXHIBIT? IS YOUR
MEMORY NOW
REFRESHED AS TO WHAT
COLOR THE DEFENDANT’S
PANTS WERE ON THE DAY
OF THE ATTACK?”
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16. EVEN PHOTOGRAPHS
“DOES THIS PHOTOGRAPH
REFRESH YOUR
RECOLLECTION AS TO WHO
THE THIRD PERSON WAS
AT THE MEETING ON THE
NIGHT IN QUESTION?”
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17. OBJECTS
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18. OR WEBSITES
YOU CAN USE JUST ABOUT
ANYTHING TO REFRESH
THE MEMORY OF THE
WITNESS. BUT IT IS
IMPERATIVE TO ALLOW
THEM TO REFRESH THEIR
MEMORY FIRST BEFORE
ASKING THE QUESTION
THAT THEY FORGOT THE
ANSWER TO AGAIN.
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19. STEP SIX TAKING THE
REFRESHING EXHIBIT
BACK
THE WITNESS HAS NOW
REVIEWED THE EXHIBIT. YOU
THEN ASK THIS QUESTION:
“IS YOUR MEMORY NOW
REFRESHED?”
YOU THEN ASK THE COURT TO
HAVE THE EXHIBIT RETURNED
TO YOU.
“YOUR HONOR, MAY I PLEASE
HAVE THE EXHIBIT
RETURNED?”
RETURN TO THE PODIUM
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20. STEP SEVEN: RE-ASKING
YOUR QUESTION
YOUR WITNESS’S MEMORY HAS NOW
BEEN REFRESHED AND IS READY TO BE
RE-ASKED THE QUESTION:
“WHAT WAS THE DATE THAT YOU
MAILED OUT THE CONTRACT?”
THAT IS IT. IF YOU ASK THE QUESTION
BEFORE YOU HAVE THE EXHIBIT
RETURNED TO YOU, HERE IS THE
OBJECTION THAT YOU WILL MOST
LIKELY HEAR:
“I OBJECT TO THE WITNESS’S READING
FROM THE EXHIBIT USED TO REFRESH
RECOLLECTION BECAUSE IT IS NOT IN
EVIDENCE AND BECAUSE IT IS
HEARSAY.
IT IS OKAY. JUST GET THE DOCUMENT
AWAY FROM YOUR WITNESS AND ASK
THE QUESTION AGAIN.
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21. CAVEAT
KEEP IN MIND THAT 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. SO YOU
HAVE TO BE CAREFUL OF THE
DOCUMENTS OR THINGS
THAT YOU USE TO REFRESH
THE WITNESS’S
RECOLLECTION
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22. DISTINGUISH REFRESHING
RECOLLECTION FROM PAST
RECOLLECTION RECORDED
Refreshing recollection IS
different from past
recollection recorded. If
the witness has no present
memory of the fact after
examining the document
or notes, the witness will
not be permitted to read
from the document or
notes unless they are
admitted into evidence.
Since writings are typically
hearsay, they will not be
admitted unless they
qualify as an exception to
the hearsay rule.
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23. CHEAT SHEET
Witness knows the facts,
but has a memory lapse on
the stand
Witness knows the exhibit
will refresh their memory
Witness is given and reads
the document
Witness states their
memory has now been
refreshed
Witness now testifies to
what they know, without
further aid of the exhibit.
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24. YOUR CHEAT SHEET
Ask “Do you remember?”
Mark the exhibit (it should be
marked for identification
purposes even though it is not
offered into evidence – no
need to lay foundation).
Show to opposing counsel,
they are entitled to inspect
the writing and cross-examine
the witness concerning it
Get the exhibit back from the
witness before you ask the
questions otherwise
opposing counsel can object.
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25. LAST LOOK. AND GOOD LUCK
ON TRIAL
1. Do you recall …
2. Is there anything that would
refresh your memory
3. What would that be?
4. Your Honor, I ask this
document be marked as Plaintiff's
Exhibit 2 for I.D.
5. I am showing 2 for I.D. to
opposing counsel.
6. May I approach the witness? or
Can 2 for I.D. be given to the
witness?
7. You have been handed
Plaintiff's Exhibit 2 for I.D. Do you
recognize this?
8. What is it?
9. Please read it.
10. Get the exhibit back and re-
ask the question.
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26. LAWCRAFT SERIES END OF INSTALLMENT 1
718.777.0400
: When Your Witness Shuts Down On the Stand
PARDALIS & NOHAVICKA LLP, ASTORIA NY --
718.777.0400
“ANOTHER KIND OF LAWFIRM”