Refreshing recollection - Next Generation Bar Exam

  1. 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.
  2. 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.
  3. 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.
  4. 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.
  5. 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.
  6. 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.
  7. 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.
  8. 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.
  9. 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.
  10. 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.

Study these flashcards