By The Honorable Earl G. Penrod

TESTIFYING IN A TRIAL CAN BE STRESSFUL, especially when the proceedings are particularly contentious or hotly contested. As a result, even a well-prepared officer may have a momentary lapse in memory about some facts or circumstances. Sometimes, the officer’s temporary lapse could be remedied by examining an item or document. However, even if permitted to take paperwork to the stand, a witness should not access or look at anything, including notes or reports, without obtaining permission.

The trial process is designed so that each witness testifies from personal knowledge, which most often means testifying about matters in which the witness personally participated and observed. And although a police officer may take notes and prepare reports throughout a case, it is expected that the officer’s testimony will be based on memory. If the officer is temporarily unable to recall something while testifying, the officer’s memory may be refreshed by referring to an object or document, provided the proper rules and procedures are followed. Virtually any object or document may be used to jog the witness’s memory, even if it is something the witness did not prepare or possess. Most often, the item used to refresh memory is a document located in the officer’s file.

When an officer testifies that he or she cannot recall a particular fact, the prosecuting attorney may then ask whether there may be something that might refresh the witness’s recollection. In some cases, an officer may state: “To be certain of my answer, I would need to refer to my notes.” In either case, the officer may then be directed to review the item or document and provide the information that could not be recalled.

Refreshing memory generally occurs only when the witness is unable to remember something the witness knew previously. After a review of the document or other item, the witness will be asked if the information can now be recalled. The witness will then be expected to testify from memory and will not be permitted to simply read the document aloud. Opposing counsel will be permitted to look at the document but if the document was used only to refresh the officer’s memory, it is not introduced as an exhibit.

It should be noted that refreshing a witness’ temporary memory lapse is not the same as presenting evidence through “past recollection recorded,” which will be addressed in a future column.

Tip to testify: Obtain permission before referring to notes while on the witness stand.

The Honorable Earl G. Penrod is a Judge of the Gibson Superior Court in Indiana.

This article originally appeared in the July 2016 issue of The LEL.