705.8Refreshing Recollection [Rule 612]
Key Concepts
- A witness may review a writing or any other object to refresh his or her memory before or during his or her testimony.
- If the writing or object successfully refreshes the witness’s memory, the witness’s testimony (but not the writing or object) is admissible under this rule.
- The opposing party generally is entitled to have the writing or object produced or made available for inspection. The opposing party may use the item to cross-examine the witness and may offer relevant portions of it into evidence.
The Basic Rule
Rule 612 – Writing or Object Used to Refresh Memory
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(a) While testifying. - 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. (b) Before testifying. - If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have those portions of any writing or of the object which relate to the testimony produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying. (c) Terms and conditions of production and use. - A party entitled to have a writing or object produced under this rule is entitled 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 production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains privileged information or information not directly related to the subject matter of the testimony, the court shall examine the writing or object in camera, excise any such portions, 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. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court shall make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order shall be one striking the testimony or, if justice so requires, declaring a mistrial. |
Legal Overview
What May Be Used?
Any writing or object (e.g., reports, notes, photos, or physical items) may be used to refresh a witness’s recollection regarding the events or facts about which the witness is testifying at a trial, deposition, or any other hearing. See G.S. 8C-612(a), (b).
There is no requirement that the writing or object be something that the testifying witness personally wrote or created, or that the writing or object come from any particular time or occasion – any item that jogs the witness’s memory may be used. See, e.g., State v. Brown, 350 N.C. 193 (1999) (witness’s recollection refreshed by seeing a letter she had previously written); State v. Royal, 300 N.C. 515 (1980) (officer’s recollection refreshed by reviewing a communication log); State v. Smith, 291 N.C. 505 (1977) (witness’s recollection refreshed by reviewing a transcript of her prior testimony). The writing or object does not have to satisfy the “best evidence” rule. See State v. Mlo, 335 N.C. 353 (1994).
Furthermore, there is no requirement that the witness first testify that he or she is “unable to remember” or that his or her “recollection is exhausted” before using an item to refresh his or her recollection. See State v. Harrison, 218 N.C. App. 546 (2012); State v. Gibson, 333 N.C. 29 (1992) (holding that the statute imposes no requirement that witness must first “state that he cannot sufficiently recall a matter before he may use the writing”), overruled on other grounds by State v. Lynch, 334 N.C. 402 (1993).
What Is Admissible?
In order to be admissible, the resulting testimony must be the product of the witness’s now-refreshed recollection. The witness may not simply recite something just read or reviewed if he or she does not independently recall it. See State v. Harrison, 218 N.C. App. 546 (2012); State v. Spinks, 136 N.C. App. 153 (1999).
If there is a question about whether the witness is testifying from his or her refreshed memory or merely reciting from what the witness has just seen or read, it is left in the court’s discretion whether to allow the testimony. See State v. Jones, 2021-NCCOA-592, 866 S.E.2d 509 (2021) (no abuse of discretion in allowing testimony where it was not "clear" that witness was merely reciting contents of letter after viewing it); State v. Smith, 291 N.C. 505 (1977); State v. Black, 197 N.C. App. 731 (2009); see also State v. York, 347 N.C. 79 (1997) (fact that witness needed to refer to notes during testimony did not make the testimony inadmissible; key inquiry is whether the witness now has an “independent recollection” that was refreshed, or is merely using the writing or object as a “testimonial crutch” for matters that are still beyond his or her recall). And the witness’s credibility as to his or her recollection ultimately is for the jury to decide. See State v. Smith, 291 N.C. 505 (1977).
Because the writing or object is being used solely to refresh the witness’s recollection, the proponent of the testimony may not offer the item itself into evidence under this rule. See State v. Spinks, 136 N.C. App. 153 (1999); State v. English, 194 N.C. App. 314 (2008); State v. Nelson, 298 N.C. 573 (1979). The proponent of the testimony may have the writing or object admitted only if it is independently admissible under another rule of evidence or for another permissible purpose. See State v. Harrison, 218 N.C. App. 546 (2012); State v. Spinks, 136 N.C. App. 153 (1999).
By contrast, the opposing party may offer relevant portions of the writing or object into evidence, as discussed below. See G.S. 8C-612(c).
Past Recollection Recorded?
If the witness reviews a writing or object and it still does not refresh his or her memory, then the witness’s testimony on that matter will not be admissible under this rule. However, in some circumstances, the writing itself might be admissible as a “recorded recollection” hearsay exception under Rule 803(5). See State v. Corn, 307 N.C. 79 (1982). For more information, see the related Evidence entry on Hearsay Exceptions: Past Recollection Recorded [Rule 803(5)].
Production of the Writing or Object Used
If a witness reviews a writing or object during his or her testimony to refresh his or her recollection, the opposing party is entitled to have the item “produced” for inspection and use in cross-examining the witness. See G.S. 8C-612(a), (c); see also State v. Jackson, 302 N.C. 101 (1981) (if witness reviews notes on the stand to refresh recollection, adverse party may inspect the notes and use them on cross-examination – but where witness carried notes to stand but did not refer to them, opposing party was not entitled to production). The opposing party is also permitted to “introduce in evidence those portions which relate to the testimony of the witness.” G.S. 8C-612(c).
If a witness reviews a writing or object before testifying to refresh his or her recollection, the opposing party is entitled to have the item produced for inspection, use on cross-examination, or introduction into evidence only if: (i) it is “practicable” to do so; and (ii) the court makes a discretionary finding that production is required in the interests of justice. G.S. 8C-612(b), (c). If production of the writing or object the witness reviewed is not practicable (e.g., where the witness re-examined an object located at the crime scene), the court may order that the item be “made available for inspection” instead. See G.S. 8C-612(c).
If a party believes that a writing or object contains privileged or irrelevant material that should not be produced or turned over for inspection, the court shall review the item in camera, redact any privileged or irrelevant portions, and produce the remainder to the opposing party. See G.S. 8C- 612(c); State v. Hall, 330 N.C. 808 (1992) (no error where trial court refused to allow defense to examine certain notes and documents in investigator’s file, which were privileged and not otherwise discoverable and were not used by witness to refresh his recollection). Any portion that is withheld over an objection must be preserved and made available for the appellate court to review in the event of an appeal. See G.S. 8C-612(c).
If a party is unwilling to produce a writing or object as ordered by the court, the court must enter orders as justice requires to address the party’s failure. G.S. 8C-612(c). In criminal cases, if the state refuses to comply with an order for the production or inspection of such an item, the court must: (i) strike the witness’s testimony; or (ii) declare a mistrial “if justice so requires.” G.S. 8C-612(c).
