By Judge Earl G. Penrod
THERE ARE TIMES WHEN AN OFFICER MAY testify in court many weeks, months or perhaps years following an event. As a result, it may be difficult for the officer to remember the details and circumstances surrounding the event.
Fortunately, officers are trained to prepare detailed written reports at the time of the incident and investigation. Typically, the officer will be granted permission to review the report on the witness stand if he or she cannot remember a circumstance or detail. After looking at the report, the officer will be asked whether it refreshed his or her memory about the event. The officer’s response determines what happens next.
If the officer indicates that his or her memory has been refreshed, the officer will respond to the question and continue to testify without looking at or reading from the report.
Evidence is to be presented by sworn witnesses testifying from memory of the events in question, so a witness typically will be permitted to review a document or any other item only to refresh recollection. An officer will not be allowed to hold a document and read from it when a question is asked, as the document is a prior out-of-court statement being offered for the truth of the matter asserted—a classic example of hearsay evidence.
There are occasions when the review of the document or report does not sufficiently refresh the officer’s memory to permit recall of details. If the witness indicates that reviewing the report does not refresh memory sufficiently to answer the question asked, the witness may be permitted to read directly from the report based on an exception to the hearsay rule.
Specifically, if the officer can testify that the report accurately represents what he or she knew when the events were fresh in his or her memory, the officer may read from the report if he or she is now unable to recall details to testify fully and accurately. It should be noted that the report itself is not admitted into evidence unless the opposing party asks that it be introduced into evidence.
TIP TO TESTIFY: Referring to or reading from written reports requires compliance with the rules of evidence.
The Honorable Earl G. Penrod is the Senior Judge for the Indiana Office of Court Services and the American Bar Association Judicial Fellow in cooperation with NHTSA.