A.Writing or Object Used to Refresh a Witness
MRE 612 permits the use of a writing or an object to refresh a witness’s memory either while testifying or before testifying, “if practicable and the court decides that justice requires the party to have those options at the trial, hearing, or deposition in which the witness is testifying.” MRE 612(a).
MRE 612(b) provides guidance on the production and use of a writing or object:
“An adverse party is entitled to have the writing or object produced, to inspect it, to cross-examine the witness about it, and to introduce in evidence — for its bearing on credibility only unless otherwise admissible under [the MREs] — any portion that relates to the witness’s testimony. If the producing party claims that the writing or object includes unrelated matter, the court must examine it in camera, remove any unrelated portion, and order that the rest be delivered to the adverse party. Any portion removed over objection must be preserved for the record.”1
The court may issue any appropriate order if a writing or object is not produced or delivered as ordered. MRE 612(c). However, “if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or, — if justice so requires — declare a mistrial.” Id.
B.Method of Refreshing Recollection of Witness
Before refreshing a witness’s recollection with a writing, “the proponent must show that (1) the witness’s present memory is inadequate, (2) the writing could refresh the witness’s present memory, and (3) reference to the writing actually does refresh the witness’s present memory.” Genna v Jackson, 286 Mich App 413, 423 (2009).
In People v Favors, 121 Mich App 98, 107-108 (1982), during a criminal sexual conduct trial, the juvenile complainant recalled only part of her description of the defendant’s apartment, even after reviewing her prior statement. The prosecutor further attempted to refresh her memory by reading the prior statement into evidence. Id. at 108. The Court of Appeals held that this method of refreshing recollection was improper, stating:
“Where the memory of a witness is to be refreshed, it is not necessary and is often highly prejudicial to permit the jury to hear the substance of the statement to be employed. Where memory or recollection is being refreshed, the material used for that purpose is not substantive evidence. Rather, the material is employed to simply trigger the witness’s recollection of the events. That recollection is substantive evidence and the material used to refresh is not. The substance of the statement used to refresh is admissible only at the instance of the adverse party.” Favors, 121 Mich App at 109 (citation omitted).
Committee Tip:
It would be prudent to require the proponent to take away the refreshing document or object after the witness acknowledges that his or her memory has been refreshed.
C.Introducing a Past Recorded Recollection2
A writing may be used to refresh a witness’s memory under MRE 612, but if the memory is not refreshed and the writing qualifies as a recorded recollection under MRE 803(5), it may be read into evidence or received as an exhibit if offered by an adverse party.