Witness Refreshing Memory

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During court proceedings, witnesses are expected to answer all questions put to them. However, cases frequently come to trial some time after the events at issue, and witnesses often are unable to recollect events clearly. However, witnesses are discouraged from referring to documents during proceedings, because if the witness has little or no recollection of the events mentioned, the document is effectively Hearsay.

At the time of writing (that is, before the relevant provisons of the CJA_2003 come into force), the rules about when and how witnesses are allowed to refresh their memory are quite complex. However, they are not as complex as they once were. For example, there was historically a strong distinction between document prepared 'contemporaneously' with the events, and those prepared some time after the events, but before the hearing. However, in R v da silva (1990) the Court of Appeal allowed a witness to withdraw from the witness box to consult a non-contemporaneous note -- something that would not previously have been allowed. The Court stated that this practice was acceptable so long as the witness's inablility to recall was due to the lapse of time, that he had made a note near in time to the events, that he had no read the note before taking the stand, and that he actively wished to consult the note before testifying. Later judges took the four conditions as a statement of law governing when non-contemporaneous notes would be addmitted. But in RVSouthRibbleMagistratesCourtExParteCochrane1996 the Court of Appeal said that Da Silva had not created a rule of law, and that the discretion of the judge to allow witnesses to refresh their memories is something that would rarely be interfered with on appeal.

Bearing that dcision in mind, the rules about witnesses refreshing their memories during proceedings are as follows.

  1. Before entering the courtroom, a witness is allowed to read a statement he prepared previously, either contemporaneously or non-contemporaneously. Common-sense suggests that it would be almost impossible to prevent witnesses doing this anyway R v richardson (1971). If a prosecution witness has done so, the defence has the right to cross-examine on the contents of the note Owen v edwards (1983). However, if the cross-examination is extensive, then the entire statement may be put into evidence, which may not necessarily be to the advantage of the defendant. It is not entirely clear whether the evidence admitted by cross-examination would be admissible as to the facts stated, or on to the credibility of the witness. At common law it was only admissible as to credibility R v virgo (1978). However, although it does not deal specifically with this situation, it is clearly the intention of the 2003 Act that previous statements, where admissible, are admissible as to the facts stated.
  2. In the witness box, a witness may, with the leave of the court, refresh his memory from statement he prepared contemporaneously and, perhaps, non-contemporaneously (Da Silva, now an identical test in s.139 of the 2003 Act). Again, the defence may cross-examine on the other contents of the statement, at risk of having the whole statement admitted.
  3. It is acceptable to refer to a 'fair copy' of notes made after the events in question. However, if the fair copy has been significantly embellished, it must have been embellished when the witness's memory of events was still clear
  4. If a witness has, essentially, no recollection of events, he must refer to the original, not a fair copy, if the original is available
  5. The statement must either have been made by the witness, or made by someone else and verified by the witness at the time it was made. If the witness can not vouch for the authenticity of the statement from his own experience, it is Hearsay
  6. The verification need not be in writing; that is, no specific signature is required (RVKelsey1981)

If the witness is permitted to refresh his memory, the opposing party is entitled to inspect the document and, if he wishes, cross-examine the witness on any discrepancies between his memory and the document. However, if the witness is cross-examined on parts of the document that do not relate to the witness's recollection of events, then the party that called the witness is entitled to have the entire document admitted as evidence (Senat v senat 1965) of his consistency (in criminal proceedings), and as proof of the truth of their contents (in civil hearings). Strictly speaking, in a criminal trial the document would remain hearsay if tendered for the truth of its contents, and the jury is required to take the document into account only as far as it concerns the witness's credibility (but see below).

The main problem with the law as it currently stands is that tends to disallow the use of notes that, while not perfect, are nevertheless better than the witness's unaided memory. However, arguably the court should not be forced to allow the witness to convert hearsay into testimony by 'refreshing his memory' about matters which he has no real recollection.

When the relevant provisions of the CJA2003 come into force, the situation will be considerably simplified. s.139(1) states that

a person giving oral evidence ... may, at any stage in the course of doing so, refresh his memory from a document made or verified by him at an earlier time, if -

(a) he states in his oral evidence [i.e., under oath] that the document records his recollection ... at the earlier time, and (b) his recollection ... is likely to have been significantly better at that time...

The main differences between the new provisions and the old are as follows.

  1. Under the new provisions it appears to be less important whether the document is an original or a copy than it currently is. so long as it records his recollection at that earlier time. The document need not even record his recollection at the time of the events, merely at the time it was made. This will tend to allow the use of documents which are likely to be a better record, even if not perfect.
  2. The new provisions do not allow any discretion on the part of the judge -- the judge cannot prevent a witness refreshing his memory from a document so long as it meets the criteria in s.139.
  3. The new law does not appear to provide for cases where the witness has essentially no recollection of events. At present, such witnesses are still allowed to refresh their memories from original, contemporaneous notes. Since the new law makes no distinction between contemporaneous and non-contemporaneous notes, it must be the case that either (a) the witness who has forgotten completely will be able to refresh his memory from non-contemporaneous notes, or (b) such a witness will not be allowed to give evidence at all, or (c) the earlier common-law provisions continue to have effect. So far as I can tell, it is unclear which of (a)-(c) will apply.

The 2003 Act does not appear to change the right to cross-examine a witness on the contents of the document, or the consequences of doing so. However, in s.120(3) it says:

A statement made by a witness in a document which is used by him to refresh his memory ... on which he is cross-examined and ... is received in evidence ... is admissible as evidence of any matter stated of which oral evidence by him would be admissible.

So, it appears, a memory-refreshing document which is admitted after cross-examination is now evidence not only of the consistency of the witness but of the truth of its contents. However, the section clearly refers to the statement on which he is cross-examined, not the document. So if a small portion of a document is used by the witness, the party calling him cannot tender the entire document as evidence of the truth of its contents. This is another example of the general trend in the CJA2003 to allow previous statements made by witnesses to be admitted, where they are admitted, as evidence of the truth of the contents. Whatever the theoretical merits of such an approach, it at least acknowledges that fact that a jury can hardly be expected to consider a particular document for assessing the credibility of a witness, while ignoring the factual matters to which it refers.

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