Intro to the Federal Rules of Evidence - 47

H. Writing Used to Refresh Memory (FRE 612)
1. Meaning of writing
A “writing” can be anything for this purpose – an object, a sound, a gesture, a scent, a photo, etc.
2. Oral testimony
W may not read from the document used to refresh, but must testify from memory.
3. Need not be admitted
Authentication is not required.
4. Opposing party’s rights
A right to inspect it, right to cross examine W thereon, introduce it into evidence.
5. Recorded recollection distinguished
Refreshing recollection (FRE 612) must be distinguished from the hearsay exception for recorded recollection (FRE 803(5)).

EXAMPLE
Q: Mr. Williams, does your statement, which I’ve just handed to you, refresh your memory?
A: Yes.
Q: Who were the other people attending the meeting?
A: Well, there was Mr. Jones [looking at report], there was Ms. Williamson …
OPPOSING LAWYER: Your honor, we object. The witness is reading from his statement.
JUDGE: Sustained. Mr. Williams, please hand the statement back to your lawyer.