Also known as: present recollections · refreshing recollection
Written by attorneys · grounded in primary & secondary sources — see below
A method of eliciting testimony in which a writing or other stimulus revives a witness's memory so that the witness can testify from current independent knowledge of the facts rather than from the writing itself.
Cashier Lena was attacked during a robbery and later identified Marcus in a lineup while medicated. At trial a writing jogs her memory of the robbery so she can describe the events from her own present recollection. Because Lena now testifies from revived independent knowledge, her account is admitted even though she initially needed the stimulus.
Petitioner Rock seeks to testify about a shooting. After hypnosis her memory of the event returns and she can describe the incident from her own present recollection. The court permits her to give that account because she now testifies from revived independent memory rather than reciting the hypnotist's notes.
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Present recollection revived occurs when a writing or stimulus jogs the witness's memory so the witness testifies from current independent knowledge. Past recollection recorded occurs when the witness cannot revive memory and instead offers the writing itself as the record of past knowledge under Rule 803(5).
No. A prior statement of identification is admissible as nonhearsay under Rule 801(d)(1)(C) when the declarant testifies and is subject to cross-examination about the statement. The rule does not require the witness to remember making the identification or the reasons for it.
The adverse party may inspect the writing, cross-examine the witness about it, and introduce any related portions into evidence. The court reviews unrelated material in camera and orders redaction before delivery of the remainder.
Yes when necessary to develop the witness's testimony on complex or technical subjects. The court may permit them to move the examination forward efficiently even if the witness lacks independent recollection of every detail.
…the phenomenon, or even a consensus on a single definition of hypnosis. See Council on Scientific Affairs, Scientific Status of Refreshing Recollection by the Use of Hypnosis, 253 J. A. M. A. 1918, 1918-1919 (1985) (Council Report).[^maj-17] The use of hypnosis in criminal investigations, however, is controversial, and the current medical…