Conduct of Trial - Refreshing the Witness’s Recollection
When a witness claims to have no recollection of an event or conversation, the witness may refresh his recollection by referring to any memorandum or writing written by any person.[1] A witness is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book, and it is not necessary that the writing has been made by the witness, or that it be an original writing, provided that, after inspecting it, he can testify to the facts from his own recollection.[2]
Once the witness has actually used the memorandum or writing to refresh his recollection while on the stand, the opposing counsel then has the right to inspect the memorandum or writing. He may then use it to impeach the witness. Opposing counsel does not have the right to inspect the memorandum until it is used by the witness to refresh his recollection.[3]
The adverse party has the right to inspect any writing or object used by a witness to refresh the recollection of a witness in court while that witness is testifying.[4] Where letters are used by a witness on direct examination to refresh his memory as to the date of material conversations, their production should be compelled for the use of opposing counsel on cross-examination.[5]
Entries in a hotel register were inadmissible to refresh the memory of the clerk, who was testifying to the presence of the defendant at the hotel on a specified date, where the clerk testified to the date without reference to the register.[6]
A paper which a witness has used to refresh his memory on cross-examination, and from which he was cross-examined, is admissible as part of the cross-examination.[7]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-213.
[2] Huff v. Bennett, 6 N.Y. 337, 338 (1852).
[3] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-215.
[4] People v. Carrier, 270 A.D.2d 800, 706 N.Y.S.2d 276 (4th Dept., 2000).
[5] Schwickert v. Levin, 76 A.D. 373, 78 N.Y.S. 394 (2d Dept., 1902).
[6] Mattison v. Mattison, 203 N.Y. 79, 96 N.E. 359 (1911)
[7] Remsen v. Metropolitan El. Ry. Co., 9 A.D. 533, 41 N.Y.S. 593 (1st Dept., 1896).
When a witness claims to have no recollection of an event or conversation, the witness may refresh his recollection by referring to any memorandum or writing written by any person.[1] A witness is permitted to assist his memory by the use of any written instrument, memorandum or entry in a book, and it is not necessary that the writing has been made by the witness, or that it be an original writing, provided that, after inspecting it, he can testify to the facts from his own recollection.[2]
Once the witness has actually used the memorandum or writing to refresh his recollection while on the stand, the opposing counsel then has the right to inspect the memorandum or writing. He may then use it to impeach the witness. Opposing counsel does not have the right to inspect the memorandum until it is used by the witness to refresh his recollection.[3]
The adverse party has the right to inspect any writing or object used by a witness to refresh the recollection of a witness in court while that witness is testifying.[4] Where letters are used by a witness on direct examination to refresh his memory as to the date of material conversations, their production should be compelled for the use of opposing counsel on cross-examination.[5]
Entries in a hotel register were inadmissible to refresh the memory of the clerk, who was testifying to the presence of the defendant at the hotel on a specified date, where the clerk testified to the date without reference to the register.[6]
A paper which a witness has used to refresh his memory on cross-examination, and from which he was cross-examined, is admissible as part of the cross-examination.[7]
[1] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-213.
[2] Huff v. Bennett, 6 N.Y. 337, 338 (1852).
[3] See Prince, Richardson on Evidence, 11th Edition (Farrell) §6-215.
[4] People v. Carrier, 270 A.D.2d 800, 706 N.Y.S.2d 276 (4th Dept., 2000).
[5] Schwickert v. Levin, 76 A.D. 373, 78 N.Y.S. 394 (2d Dept., 1902).
[6] Mattison v. Mattison, 203 N.Y. 79, 96 N.E. 359 (1911)
[7] Remsen v. Metropolitan El. Ry. Co., 9 A.D. 533, 41 N.Y.S. 593 (1st Dept., 1896).
The material on our website is from the New York Matrimonial Trial Handbook , by Joel R. Brandes of the New York Bar. It focuses on the procedural and substantive law, as well as the law of evidence, that an attorney must have at his or her fingertips when trying a New York matrimonial action or custody case. It is intended to be an aide for preparing for a trial and as a reference for the procedure in offering and objecting to evidence during a trial. There are numerous questions for the examination and cross-examination of witnesses.
Joel R. Brandes Consulting Services, Inc. publishes The New York Matrimonial Trial Handbook . It is available in Bookstores, and online in the print edition at Amazon, Barnes & Noble, Goodreads and other online book sellers.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
The New York Matrimonial Trial Handbook is available in Kindle ebook editions and epub ebook editions for all ebook readers in our website bookstore and in hard cover at our Bookbaby Bookstore.
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This website is published by Joel R. Brandes Consulting Services, Inc., and written by Joel R. Brandes of The Law Firm of Joel R. Brandes. P.C. Mr. Brandes has been recognized by the Appellate Division* as a "noted authority and expert on New York family law and divorce.” He is the author of the treatise Law and The Family New York, 2d (9 volumes),Law and the Family New York Forms 2d (5 Volumes), Law and the Family New York Forms 2019 Edition (5 volumes)(Thomson Reuters), and the New York Matrimonial Trial Handbook. Click here to visit New York Divorce and Family Law ™ the definitive site on the web for New York divorce and family law, presented by Joel R. Brandes of the Law Firm of Joel R. Brandes, P.C., 43 West 43rd Street, New York, New York 10036. (212) 859-5079.
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