Refreshing recollection - Next Generation Bar Exam
- What is the key distinction between present recollection refreshed and recorded recollection under FRE 803(5)?
- Refreshing restores memory, while recorded recollection substitutes a record for memory the witness lacks. Recorded recollection is a hearsay exception with foundation requirements.
- Under FRE 612(c), what may the court do if a party fails to produce a writing as ordered in a civil case?
- Issue any appropriate order. In a criminal case, if the prosecution fails, the court must strike the testimony or declare a mistrial if justice requires.
- Under FRE 612, what rights does the adverse party have when a writing is used to refresh a witness's memory while testifying?
- To have the writing produced, inspect it, cross-examine about it, and introduce relevant portions. The adverse party may introduce portions relating to the testimony.
- Under FRE 612, when does the adverse party have rights to a writing used to refresh memory before testifying?
- When the court decides that justice requires it. Use before testimony gives the court discretion rather than an automatic right.
- A witness reviews a memo, but her memory remains blank. What doctrine may allow the memo to be read into evidence?
- Recorded recollection under FRE 803(5). The proponent must show she made or adopted it when the matter was fresh and it was accurate.
- What is the evidentiary status of a writing used only to refresh recollection?
- It is not evidence; the testimony is the witness's refreshed memory. The writing is not read into the record by the proponent.
- Under the present recollection refreshed doctrine, what may be used to refresh a witness's memory?
- Any writing or object. The item need not be admissible or authored by the witness.
- A witness forgets a license plate number. Counsel shows her a police report, she reviews it silently, and she then recalls the number. What is the status of her testimony?
- It is admissible as present recollection refreshed. The testimony comes from her memory, not the report.
- After a witness's memory is refreshed by a letter, opposing counsel asks to see it. What is counsel's right under FRE 612?
- To inspect the letter, cross-examine on it, and introduce relevant portions. The right is automatic when the writing is used while testifying.
- What is the relationship between FRE 612 and the Jencks Act in criminal cases?
- FRE 612 is subject to the Jencks Act, which governs production of government witness statements. The Jencks Act, 18 U.S.C. 3500, controls when such statements must be produced.