MBE Rules · Evidence
Refreshing Recollection
FRE 612
The rule
Anything may refresh a witness's memory; the witness must then testify from revived memory, and the adverse party may inspect the item, cross-examine on it, and introduce pertinent portions.
In plain English
Refreshing recollection allows a witness to use materials or items to help recall details they may have forgotten. Once their memory is refreshed, they must testify based on that revived memory, and the opposing party has the right to examine the materials used and challenge the witness's testimony about them.
Worked example
During a trial, a witness struggles to remember specific details about an event. The attorney shows the witness a document containing notes they made shortly after the event, which helps the witness recall the details. The witness then testifies based on the refreshed memory, and the opposing counsel inspects the notes and cross-examines the witness about them.
Memory hook
Refresh your memory, then testify from the heart!
The trap
Exams may present scenarios where a witness uses materials that do not actually refresh their memory, leading students to incorrectly assume the testimony is valid. Watch for subtle hints that the witness's recollection is still unreliable.
How examiners test it
Questions often involve a witness who initially struggles to recall information but later uses a document or item to refresh their memory, testing students on the admissibility and implications of that refreshed testimony.
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