refreshing recollection · 2019. 1. 7. · (fre 608(a)) fact w who testified can have his or her...
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REFRESHING RECOLLECTION
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• Starcourt Industries, Inc. v. Acme Insurance, Inc.
• Establish that the witness does not remember
• Show that the witness previously remembered
• Establish that there is something that would help him or her remember
Rule 612:Ref resh ing Reco l l ec t ion
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• Starcourt Industries, Inc. v. Acme Insurance, Inc.
• Ask to approach
• Show item to opposing counsel and the witness
• Review item; if document, read silently• Put item down
• Ask the witness if their memory has been refreshed
• Repeat the question
Rule 612:Ref resh ing Reco l l ec t ion
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Rule 803(5) Exception to Hearsay Rule for Recorded Recollection:• A record that is on a matter that a witness once knew about but now cannot recall
well enough to testify to fully and accurately;
• Was made or adopted by the witness when the matter was fresh in the witness’s memory; and
• Accurately reflects the witness’s knowledge.
• If admitted, may be read into evidence but received as an exhibit only if offered by adverse party.
Past Recol lect ion Recorded
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Different from Rule 612:• Anything can be used to refresh under 612
• Exception under 803(5) relates to a record
• Memory is not refreshed after reviewing the record
• The record establishes the fact not witness’s memory
Past Recol lect ion Recorded
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• Starcourt Industries, Inc. v. Acme Insurance, Inc.
• Establish that the witness did remember at one time but does not now
• Show that the witness no longer has sufficient present recollection even after reviewing
• Recorded while fresh in memory
• Accurately reflects the witness’s knowledge
Rule 803(5) :Ref resh ing Reco l l ec t ion
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ADMISSION OF EVIDENCE AND OBJECTIONSSIDLEY AUSTIN LLP
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WHY EXHIBITS?
SIDLEY AUSTIN LLP
More Memorable.
More Interesting.
Necessary Proof.
Repeat Your Story.
Jury Toys.
Confidence in Courtroom.
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NUTS AND BOLTS
SIDLEY AUSTIN LLP
Which documents, graphics, etc. are essential to the
elements of your case-in-chief, and its themes?
Who are the witnesses who best can introduce them?
Knowledge (foundation)
Personal involvement (foundation)
Best impression on jury
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MECHANICS OF EXHIBIT ADMISSION
i. Announce exhibit and number/show to counsel
ii. Hand to witness, ask her to identify it
iii. Lay foundation for itiv. Offer into evidencev. Publish to jury
SIDLEY AUSTIN LLP
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FOUNDATIONi. Competent witness: first-hand knowledge, personal
involvement
ii. Relevant and reliable evidence: not hearsay, or an exception to hearsay
iii. Authentication: FRE 901 and 902
SIDLEY AUSTIN LLP
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• Witness is familiar with scene or object.
• Witness explains familiarity with scene or object.
• Witness recognizes scene or object in photo.
• Photo is a fair and accurate depiction at relevant time.
PHOTOGRAPHS
SIDLEY AUSTIN LLP
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Fed. R. Evid. 803(6)• Record was made at or near time of event.
• By someone with knowledge (or based on information from someone with knowledge) who has a business duty to report.
• Routine practice of the business to prepare such reports.
• Report was made in the regular course of business (and not for purposes of litigation).
BUSINESS RECORDS
SIDLEY AUSTIN LLP
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• Diagram depicts a certain area or object.
• Witness is familiar with that area or object.
• Witness explains basis for her or his familiarity with the area or object.
• Diagram is an accurate depiction of that area or object.
• (Maybe) Diagram will help witness demonstrate or illustrate his or her testimony.
MAPS AND DIAGRAMS
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MASTER YOUR EXHIBITS
Use during direct.
Use during cross.
Use during closing.
Use during opening.
SIDLEY AUSTIN LLP
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DON’T LET EXHIBITS CONTROL YOU
Less may be more.
SIDLEY AUSTIN LLP
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IMPEACHMENT
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IMPEACHMENT FUNDAMENTALS• Attacking a W’s credibility
• Always proper under FRE 611(b), which allows cross-examination on “matters affecting the W’s credibility”
• Any party can impeach any W (FRE 611)
• Cross-examiner must have a reasonable factual basis tobelieve impeaching matter.
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COLLATERAL
NON-COLLATERAL
“Waste of Time” Analysis
(FRE 403)
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Non-Collateral Impeachment
Impeachment is relevant to issues in the
trial.
If W does not admit impeaching matter, cross-examiner is required to prove
with extrinsic evidence.
Bias, Interest, and Motive
= Always
Non-Collateral
Prior Convictions
= Always
Non-Collateral(FRE 609)
(Important)
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Collateral Impeachment
Impeachment is relevant only
to W’s credibility.
Cross-examiner
cannot prove with extrinsic
evidence.
Prior Bad Acts =
Collateral (FRE 608(b))
(Unimportant)
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IMPEACHMENT METHODS
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Seven Basic MethodsBias, Interest, and Motive ( N o r u l e ; c a s e l aw )
Prior Inconsistent Statements ( F R E 6 1 3 )
Prior Bad Acts ( F R E 6 0 8 ( b ) )
Prior Convictions ( F R E 6 0 9 )
Contradictor y Facts ( N o r u l e ; c a s e l aw )
Bad Character for Tr uthfulness ( F R E 6 0 8 ( a ) )
Treatises ( F R E 8 0 3 ( 1 8 ) )
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BIAS, INTEREST, AND MOTIVE
A l w a y s N o n -
C o l l a t e r a l , A l w a y s
I m p o r t a n t !
W has frame of mind that might color his testimony.
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PRIOR INCONSISTENT STATEMENTS
• By Commission or Omission / Silence.
• W need not be shown written statement on cross.
• Upon request, must show to adverse party’s attorney.
• If prior statement under oath, admissible for truth.
• If prior statement not under oath, admitted for limited purpose of impeachment.
Col lateral / Non-Col lateral
Dist inct ion: case-by-case
analys is.
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PRIOR CONVICTIONS(FRE 609)
•Impeached with any prior conviction involving “dishonest act or false statement” (e.g., perjury, fraud, embezzlement)
•Felony not more than 10 years old, subject to FRE 403
A l w a y s N o n -
C o l l a t e r a l , A l w a y s
I m p o r t a n t !
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PRIOR BAD ACTS (FRE 608(b))
A l w a y s C o l l a t e r a l
! !
Impeach if acts are “probative of truthfulness or untruthfulness”
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BAD CHARACTER FOR TRUTHFULNESS (FRE 608(a))
Fact W who testified can have his or her character for truthfulness attacked
by a character W.
Must be in general reputation
or personal opinion form.
W’s character for truthfulness must be attacked before it can
be supported.
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TREATISES (FRE 803(18))Using treatises to impeach an expert
Must be published.
Must be established as a “reliable authority.”
Read portions into the record— but treatise is
not admissible.
Bring to attention of expert on cross-
examination.
Give court clerk copy of page to mark as
exhibit.