I have decided to post on selected Military Rules of Evidence (MRE) as a way to not only help clients understand the trial process, but also to assist my fellow TDS brothern in the trenches fighting the good fight for you. Today's topic is MRE 612 – An Easy Thing That Judges Always Complain We Screw-Up
The Rule: MRE 612: If a witness uses a writing to refresh his or her memory for the purpose of testifying, either (1) while testifying, or (2) before testifying, if...it is...in the interests of justice, an adverse party is entitled to have the writing produced...to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains privileged information or [irrelevant] matters...the military judge shall examine the writing...[and] excise any [such] information. Any portion withheld over objections shall be attached to the record of trial as an appellate exhibit. If a writing is not produced or delivered pursuant to...this rule, the military judge shall make any order justice requires, except that when the prosecution elects not to comply, the order shall be one striking the testimony or, if...the interests of justice so require, declaring a mistrial....
Defense Counsel's Objective: There are two important focuses: (1) As the examiner of the witness, salvage the testimony by letting your witness read a document and then testify from their refreshed memory, and (2) be aware that you have certain rights -- including introducing the document used to refresh memory -- when the government refreshes the memory of one of its witnesses.
a. If the witness you are examining loses their memory on the stand, you are not at a loss. It is legitimate and appropriate to refresh their memory by letting them review a document such as a police or lab report.
b. It is important that you are careful and methodical when you do it. Follow these steps:
(1) ALWAYS try to get the witness to testify from memory. In other words, ask the question.
(2) When the witness is unable to answer from memory, ask them if there is something that would refresh their memory.
(3) When they says yes, ask them what that is.
(4) Mark the document as a prosecution exhibit, show a copy to the government and hand it to the witness. Give them time to read it.
(5) WITHDRAW the document from your witness.
(6) Ask the initial question again; have them testify from their REFRESHED memory.
c. Don't be afraid to use this technique. It's not sneaky or below-board. It's lawful and especially appropriate for witnesses testifying about technical data, easy-to-forget matters such as dates, license plates or nanogram counts, or for young or nervous witnesses.
d. REHEARSE with your witness. Anticipate the need for this -- which should become clear during pretrial preparation -- and explain to the witness the process you will go through to refresh their memory.
e. BE EXACT about the procedure. Follow it precisely. Be sure to withdraw the document so that the witness testifies from their MEMORY (albeit their refreshed memory) and not from the paper.
f. Distinguish use of the document as a substitute for testimony, which would be past recollection recorded -- a hearsay rule, requiring reference to MRE 803(5). When you are refreshing memory, the testimony, not the document, is the evidence; but you mark the document as a defense exhibit and append it to the record.
g. Remember the theory of this rule. It "is designed to regulate discovery of documents." United States v. Haston , 24 M.J. 313, 315 (C.M.A. 1987), cert. denied , 484 U.S. 955 (1987). Its purpose is to let the other side look at the document used to refresh a witness's memory. It keeps your adversary from slipping the witness a note or cheat sheet, and lets you suggest to the fact finder that the witness was coached.
h. Have a copy of the document you use to refresh the witness's memory ready to show to the government. More importantly, be aware of two important defense rights:
(1) "[T]o introduce into evidence" the portions the government witness relies on. Insure that it does not contain embarrassing or unhelpful information to the defense. Don't be sneaky and use an excerpt from a document, if the full document will harm your case.
(2) Government failure to produce the document will result in either striking of their witness's testimony or, when appropriate, a mistrial.
i. Mask the document so that irrelevant or privileged information cannot be read. The rule requires the judge to redact irrelevant or privileged information. Have a masked copy and an original ready for inspection.
j. You can refresh government witnesses. In an appropriate circumstance, you may want to refresh the testimony of a government witness by referring them to a document. When the document is a statement by that witness, you may prefer to use it as a prior inconsistent statement under MRE 613, because that gives you more rights and flexibility (directing the witness to read from it).
k. When you're on the other side, always take the time to read the entire document, be sure to cross the witness with the document if it sounds unduly suggestive or prompts the witness in a way that you think the panel ought to know. If you are given the opportunity to be present during an out-of-court refreshing of a witness, do not decline and go to lunch, as the defense counsel in Haston did. Id. at 314.
l. In appropriate cases, argue to the panel that their witness had to have their memory refreshed. Even though refreshing memory is an appropriate tool of advocacy, it is permissible and appropriate to comment on the witness's inability to recall certain facts -- especially if they are facts that a panel would expect a witness to know. In denying a defense request for relief, the Court of Military Appeals noted that the defense "was privileged to point out to the members the fact that [the witness's] memory had been refreshed...." Id. at 315.
m. Be aware that the rule also permits discovery of material used to refresh a witness's memory "before testifying." This means you can request such information from the government, but also counsels against giving your witnesses written copies of your questions with suggested answers or even the answers witnesses have provided in interviews. Rehearsal is appropriate and encouraged; leaving yourself open to discovery of such documents is embarrassing and may produce allegations that you created the testimony of your witnesses. The rule "is not an exclusive catalogue of instances under which a witness' recollection may be refreshed." Id. at 315.
Practice Sample: (on direct)
DC: Agent Smith, what was the address of the house where the alleged assault took place?
Smith: I can't remember. I know it was near the post, but I can't remember anything more specific.
Q: Is there anything you could review that might help you to remember?
A: Yes, the report I made shortly after completing my investigation.
Q: I'm showing you what's been marked as Defense Exhibit E for Identification, previously provided to the defense by the government. What is that?
A: It's a copy of my report regarding this case.
Q: Please read it over.
Q: I am now retrieving Defense Exhibit E for Identification from the witness.
Q: Does that refresh your memory?
Q: Again, Agent Smith, what is the address of the house where the alleged assault took place?
A: It was 1227 Craig Street just outside the East Gate of the post.