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Background

I served on a jury during a criminal trial in the United States several years ago. There was a strangely formal interaction that repeated itself a few times during the trial.

The prosecutor, while holding some document, would ask a question which required the witness to recall some specific detail. The witness would reply "I don't remember." The prosecutor would then ask "Would looking at [some document] refresh your memory?", to which the witness would answer "Yes."

The prosecutor would then hand the document to the witness, who would look at it and then answer the question.

It's obvious that the prosecutor already knew the question wouldn't be answerable without reference to the report or document - that's why they were holding it. But then why perform the dance of "do you recall" / "no" / "would this refresh your memory" / "yes"?

The Question

It's clear the witness needs the document to answer the prosecutor's question, so what's the value in the prosecutor asking the witness the question the first time without the document?

Disclaimer

(it may be that this was simply this prosecutor's way of phrasing questions, rather than a feature of the United States criminal judicial system. If that's the case this question won't be answerable, since it calls for knowing the mindset of a specific individual. If so, let me know and I'll delete it)

Further information

In the real-life situation I found myself in, the witness was for the prosecution. However, I'm equally interested in answers (such as hszmv's) that explain why the adversarial lawyer might also use this technique, if relevant.

4 Answers 4

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Witnesses are generally confined to giving testimony from their own personal memory; most of the time, they can't read a statement into the record or just tell the jury to go look at some other piece of evidence.

But this creates problems when a witness knows an important fact but doesn't remember it when she takes the stand. Maybe she counted exactly how much money she stuffed in the robber's bag as she was doing it, and she wrote it down as soon as he fled, but a year later, she can't remember that it was $93,736.45.

But the prosecutor isn't allowed to just give the witness a stack of evidence and let her go hunting through the documents to answer each question. Instead,he goes through the "Do you remember" colloquy to lay the necessary foundation to refresh the witness's memory, as contemplated by Rule 612, which then also triggers certain rights for the opposing party with respect to the document used to refresh the witness's memory.

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    So this means the prosecutor is possibly presenting a record of the witness' previous testimony, e.g. from a police interrogation?
    – PMF
    May 28, 2023 at 5:27
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    Yes, that's possible. Doing so could present hearsay problems, but those would not always be insurmountable.
    – bdb484
    May 28, 2023 at 10:45
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    But shouldn't then the second answer of the witness be something like: "This paper looks surprisingly similar to the kind of paper I recall to have used for writing down tha amount, and this looks very much like my personal handwriting, and seems to state that the amount was $93,736.45. In case this is actually the unmodified paper I used after the bank robbery, well, then I might go out on a limb to carefully tend to conclude that the amount I counted was $93,736.45"? May 28, 2023 at 16:22
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    I think "yes" or "no" would probably be sufficient.
    – bdb484
    May 28, 2023 at 17:07
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    Your first word should be witnesses not witness. Sorry, I don't have the rep to edit, and that's too minor for a suggested edit and I couldn't find anything else to "fix".
    – terdon
    May 29, 2023 at 11:25
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Witnesses cannot refer to documents or notes

That’s because witness testimony is supposed to be what the witness remembers, not what they are prompted to remember.

This is covered by s32 of the Uniform Evidence Acts in those jurisdictions that have adopted it, but it only a codification of a long-standing common law rule.

Exemptions apply to expert witnesses and police officers and with the permission of the court.

The process the prosecutor is going through is to allow the defence to raise an objection and (implicitly) to get the court’s permission.

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It's clear the witness needs the document to answer the prosecutor's question, so what's the value in the prosecutor asking the witness the question the first time without the document?

In a court room, most actions taken by the attorney are for one reason and one reason only: To convince the Jury to give them a favorable ruling.

The example you cited is likely part of an attempt by the attorney to impeach a witness during cross examination (it should be noted that impeach here means something different than the commonly understood meaning of the term. Here, it's an informal process of convincing the jury to discount the testimony of the witness by demonstrating that they're testimony is unreliable. Because U.S. courts are adversarial, the opposing attorney will try to poke holes in the testimony of the witness during cross-examination.).

As to why the Lawyer even asked the question in the first place if he knew the answer, especially during cross-examination, it's to get the witness to contradict themselves out loud before they introduce the evidence. But then, the fact that you spotted one instance of a lawyer knowing what the answer is before they ask the question, that's their big secret... a good attorney knows the answer to every question they ask in court before they ask it.

As a juror, you didn't see the work the lawyers on both sides did... each one took statements from their witnesses, and formed questions with them and coached them on the proper way to respond (this isn't necessarily what to say... but how to say and who to say it to... if you are ever called as a witness, the attorney who coaches you will make sure to tell you when you answer a question on the stand, look at the Jury (or Judge in a bench trial) when you respond and not the attorney who asked the question... because people tend to believe that when someone doesn't look at them they are lying) to the questions and what to say on cross to avoid legal trouble. And then, they get to interview the witnesses the other side is bringing in to testify (in fact, if a witness for the opposing side refuses to talk to your lawyers prior to trial, that fact can be introduced in court to show the witness is not to be trusted, since the discovery phase of the trial has some broad rules that allow both sides to investigate the others case.).

In this particular case, the witness being question testifies they do not know ("I don't know/recall" or similar statements are frequently used to avoid perjuring one's self when contradictory evidence is introduced... while it could be a lie, it's hard for a prosecutor to prove if you were faking the lack of knowledge or if you really forgot. If you say no and it turns out that you should have known that no was the wrong answer, it's easier to get perjury charges.). Upon this, the cross-examining attorney, knowing the answer, has the document ready to go and can point to the line and have the witness read the answer for the court (or as I was taught by an attorney coach on my mock trial team, the better way is for the attorney to hand a copy of the doc to the witness and say "Please read along as I read out loud..." and then read the part of the document that is relevant. This is so the witness can't try to recover by reading it in a favorable tone or read parts you might not want read.).

In criminal law, this is important for both sides. If the Defense can make you believe a prosecution attorney is unreliable... then what does that say about other elements of the case? If in doubt, you must acquit. For the prosecution, if the defense witnesses look reliable, there is doubt to the veracity of your case... and in order for you to win, the jury must not have any doubt you got it right.

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  • This is a good answer and I've upvoted it. Re-reading my question I've discovered that I left an important piece of information out...in my real-life situation, the witness was for the prosecution, which is not what you address. However, this answer helps me to understand why the same thing might occur during a cross-examination. Thank you!
    – Steve V.
    May 31, 2023 at 0:44
  • @SteveV. It can occur in direct examination as well, but it's rare. The way it was done suggests that the prosecutor was either dealing with a witness who may have misremembered the question or the evidence was gathered through other means or that the witness was a hostile witness (in Cross-examination, the witness is assumed hostile but in direct it's assumed they are not. Having a hostile witness allows the attorney to use leading questions which in general are questions that require a "yes" or "no" answer. ).
    – hszmv
    May 31, 2023 at 12:11
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Often, if documents are disclosed by a certain date, or are offered into evidence as business records, but the court disagrees that they constitute business records, those documents are inadmissible into evidence (either for non-disclosure or under the hearsay rule).

But, a document can be used to refresh the recollection of a witness even if the document itself isn't admitted into evidence.

There is a good chance that in this case the documents weren't admissible into evidence for some reason that the allowed use of inadmissible documents to refresh recollection was used as a work around for this problem.

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