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Building a Cross Around Refreshing Recollection

Posted in Trial Techniques

A few days ago, I was preparing for cross-examination. The event never happened because the  hearing was terminated on a technical point before the other side could put on any witnesses. But court preparation is never a waste. All the research you do for it keeps until later. Here are a few things I learned about refreshing recollection as an alternative to putting up substantive impeaching evidence.

I anticipated crossing the adverse party in what would have been a pivotal moment in the trial. The witness had previously given a recorded interview with two law-enforcement agents. I knew that the witness would contradict the previous statement in a significant way (because the relief she sought depended upon an alternate version). And there was great impeachment material to be found on this audio recording. However, it was doubtful that I would be able to have the agents produced for this hearing. So, I had to prepare to use the recordings without the witnesses who recorded the interview. And my witness had no incentive to cooperate with any effort to authenticate the recording.

In addition, the witness had sent some texts to my client that I wanted to use. had the cell phone company’s records of these texts that my client had downloaded from the cell phone provider’s website. I also had some texts that I wanted to use that law-enforcement had extracted from her phone  But, again, we did not necessarily want to pay to bring in subpoena compliance folks from the cell phone provider due to cost concerns

Refreshing Recollection to The Rescue

Here is how I prepared. First, I made a detailed and indexed digest of the recording with minute and seconds noted for all the things I would need to use. Then I practiced with the audio file on the computer until I could reach any spot instantly. I also had a transcript prepared of the entire interview.

I called a friend of mine who teaches trial advocacy and who is an excellent trial lawyer. He confirmed that I could get where I needed to go by refreshing recollection. He gave me some helpful tips to plan this cross-examination. First, he told me to preface each question about the statements using the phrase “do you recall…” The use of the word “recall,” put us in a memory framework.

The second piece was to build up the interviews themselves. In fact, in planning the cross-examination, I built several chapters up to point the witness to that time, place, and circumstances of the interview. I wanted to direct the witnesses attention to the fact that the witness knew that the interview was being recorded. And I wanted to establish, in the witnesse’s own words, that the interview was important in its nature and scope.

Rule 612 and Available Materials

Some judges mistakenly believe that a witness can only have recollection refreshed with a document the witness prepared. The reality is that a witness’s recollection can be refreshed with anything. “As long as the witness is willing to swear from his memory as refreshed, his memory may be refreshed from any kind of stimulus, ‘a song, or a face, or a newspaper item.’” Bianchi v. State, 327 Ga. App. 440 (2014). If you use a written document, then there are a few other things to keep in mind — you need to make the writing available for opposing counsel to review under Rule 612. When it came down to time to impeach, I would simply have said “would it refresh your recollection of the interview if I showed you a transcript of it.” Of course many objections could come at this point. The adverse lawyer could question the authenticity of the transcript. In which case, my response would have been that I am just showing the transcript to see if it refreshes her recollection. I could then give the judge and the witness the option of my playing the interview itself in the specific portion that is relevant to refresh recollection.

Over time, the witness looks bad by having her recollection refreshed. The fear is that the witness will hear herself on the recording and pretend her recollection is not refreshed. At this point, you probably win because the witness loses all credibility.

Setting the Stage

The other piece involved an early arrival in court. I came to court two hours early to use the audio equipment and have everything ready to go. Had it been necessary use the recording, I wanted to move to the computer quickly and I wanted the audio to be sufficiently clear for tn judge to hear it.

Again, the hearing ended before we could hear evidence. But all the work I did will be helpful for a future Court date