CHAPTER XXIV.

REFRESHING THE MEMORY.

§ 279. In General.

§ 280. When Memoranda or Other Writings may be referred to.
What Writings may be used for this Purpose.
When the Writing must be produced.

§ 281.

§ 282.

§ 283.

When Witness must testify from Independent Recollection. § 284. When the Memoranda, etc., are themselves Evidence. § 285. Proper Practice where Witness is blind or cannot read.

§ 279. In General. -The rule is well settled that a witness may, under proper circumstances, have his memory respecting anything upon which he is questioned, refreshed by means of written or printed memoranda, documents, and papers.1 In many cases this course is indispensable to the ascertainment of truth; such cases are, particularly, those involving the proof of accounts containing many items.2 So, for obvious reasons, a witness cannot be compelled to answer whether a signature shown to him is his, unless he is permitted to examine the paper to which it is appended.3 Human memory is so frail that very few witnesses are able to testify as to particular dates, numbers, quantities, and sums after any considerable lapse of time, without reference to papers or

1 Ford v. Commonwealth, 130 Mass. 64; s. c., 39 Am. Rep. 426; Queen v. Langton, 22 Q. B. D. 296; Remsey v. Duke, 1 Morr. (Iowa) 385; White v. Tucker, 9 Iowa, 100; State v. Taylor, 3 Oreg. 10; State v. Lyons, 89 N. C. 568.

2 Wise v. Phoenix Ins. Co. (N. Y.), 4 N. East. Rep. 634; affirming 31 Hun, 87; Lawson v. Glass, 6 Col. 134, 135; Wise v. Phoenix Ins. Co. (N. Y.), 4 N. East. Rep. 634; Howard v. McDonough, 77 N. Y. 592; McCormick v. R. R. Co., 49 N. Y. 303; Driggs v. Smith, 36 N. Y. Super. Ct. Rep. 283; Commonwealth v. Jeffs, 132 Mass. 5; Commonwealth v. Ford, 130 Mass. 64; s. c., 39 Am. Rep. 426; Davidson v. Lal

lande, 12 La. Ann. 826; Flowers r. Downs, 6 Id. 539; State v. Miller, 53 Iowa, 154, 209; Cooper v. State, 59 Miss. 264, 272; Robertson v. Lynch, 18 Johns. (N. Y.) 451; Clough v. State, 7 Neb. 320; McCausland v. Ralston, 12 Nev. 196, 217; Kent v. Mason, 1 Bradw. (Ill.) 466, 471; Coffin v. Vincent, 12 Cush. (Mass.) 98; Rambert v. Cohen, 4 Esp. 213; Jacob v. Lindsey, 1 East, 227; Kensington v. Inglis, East, 273; Horne v. McKenzie, 6 Cl. & F. 628; Burton v. Plummer, 2 Ad. & E. 341; Rex v. Duchess of Kingston, 20 How. St. Tr. 619.

146.

3 Insurance Co. v. Throop, 22 Mich.

memoranda,1

But with the memory thus quickened and refreshed, the witness is enabled to testify with greater clearness and accuracy than without the use of the paper, even though be remembers quite distinctly the general facts concerning which he is giving evidence. Indeed, a witness being sworn to tell the whole truth, he ought to do what is reasonable to enable him to perform that duty faithfully and sincerely, according to the spirit of his oath; and he may lawfully be required to look at memoranda or papers within his power, to aid his recollection.2 But on the other hand, where the witness expresses no want of recollection, nor desire to refresh his memory, counsel cannot be allowed to place in his hands memoranda relative to the matters on which he is called to testify. In such a case the ordinary objection to the practice that the paper referred to operates upon the mind of the witness like a leading question — would seem to be well taken.

The manner in which a witness shall be allowed to refresh his recollection by reference to a writing must be left, to some extent, to the discretion of the presiding judge, — a discretion to be exercised with reference to the circumstances of the case, and sometimes with reference to the conduct and bearing of the witness upon the stand. The courts are required to take great care to guard against forgery, interpolation, etc., thus preventing the abuse of the right.5

to.

§ 280. When Memoranda or Other Writings may be referred There are three classes of cases laid down in the books in which reference to memoranda may be made: (1) where the writing serves only to revive or assist the memory of the witness, and to bring to his mind a recollection of the facts; 6 (2) where the witness recollects having seen the writing before, and though he has no independent recollection of the facts mentioned in it, yet remembers that, at the time he saw

1 Feeter v. Heath, 11 Wend. (N. Y.) 477, 485; McCausland v. Ralston, 12 Nev. 195.

5 Harrison v. Middleton, 11 Gratt. (Va.) 527, 544; Merrill v. Ithaca, &c. R. R. Co., 16 Wend. (N. Y.) 600;

2 Chapin v. Lapham, 20 Pick. Chapin v. Lapham, 20 Pick. (Mass.) (Mass.) 467.

3 Young v. Catlett, 6 Duer (N. Y.) 437; Haack v. Fearing, 5 Robt. (N. Y.) 528. S. P., Moore v. Chesley, 17 N. H. 151.

4 Johnson v. Coles, 21 Minn. 108.

467.

6 State v. Lull, 37 Me. 246; George v. Joy, 19 N. H. 544; Harrison v. Middleton, 11 Gratt. (Va.) 527; Huff v. Bennett, 6 N. Y. 337.

it, he knew the contents to be correct;1 and (3) where it brings to the mind of the witness neither any recollection of the facts mentioned in it, nor any recollection of the writing itself, but which, nevertheless, enables him to swear to a particular fact, from the conviction of his mind on seeing a writing which he knows to be genuine; as, for instance, where a banker's clerk is shown a bill of exchange which has his writing upon it, from which he knows that the bill has passed through his hands, though he has no recollection of that fact, nor of his writing anything upon the bill.2

In the two latter classes of cases, the witness must, on seeing the writing, be able to depose positively to the facts to which he is examined, although he may have no present recollection of them independently of the writing.3 And in any case, a witness, after testifying to a fact from personal recollection, will not be permitted to corroborate his testimony by a written memorandum made by himself.1

§ 281. What Writings may be used for this Purpose. (1) In general. All original entries made in any form by the witness, for the purpose of perpetuating his memory of a particular transaction, may, as a general rule, be referred to by him in giving his testimony. The writing need not be, itself, admissible in evidence; even an unstamped or other writing, not evidence in itself, may be used for this purpose.

1 Webster v. Clark, 10 Fost. (N. II.) 245; Downer v. Rowell, 24 Vt. 343; Odiorne v. Bacon, 6 Cush. (Mass.) 185; State v. Cheek, 13 Ired. (N. C.) L. 114. And see White . Ambler, 8 N. Y. 170.

2 See R. v. St. Martin's Leicester, 2 Ad. &. E. 210; State v. Colwall, 3 R. I. 132; New Haven Bank v. Mitchell, 15 Conn. 206.

8 2 Phil. Ev. * 917.

In trespass to try title a witness was allowed to refer to a plan of the land in dispute. Cundiff v. Orms, 7 Port. (Ala.) 58. See also People v. Cotta, 49 Cal. 167; Dunlap v. Berry, 5 III. 327.

4 Wightman v. Overhiser, 8 Daly (N. Y.) 282.

5 "We have words of scandal, admissions of tenants, entries by merchants' clerks, by magistrates' clerks,

entries of the receipt of sums of money, of the numbers of notes at a banker's, entries in notes by counsel, etc., of the testimony of a witness on a former trial; any entry by a bankclerk or teller, the affidavit of a gaming transaction, the attestation of a deed, will, or other paper, the memorandum of a tender of money, including time, sum, manner, the entry of a notary or a notary's clerk, entries of admissions and settlements, etc." 2 Phil. Ev. (5 Am. Ed.) *920n. See also Prather v. Pritchard, 26 Ind. 65; Chiapella v. Brown, 14 La. Ann. 189; Massey v. Hackett, 12 Id. 54; Welcome v. Batchelder, 23 Me. 85; Neil v. Childs, 10 Ired. (N. C.) L. 195; Columbia v. Harrison, 2 Mill (S. C.) 213; State v. Cardoza, 11 So. Car. 195.

The fact sworn to is proved by the parol testimony of the witness, not by the writing, and the latter cannot properly be said to become evidence because used by the witness for this purpose.1

(2) By whom written. Nor need the paper referred to have been actually written by the witness himself, if, upon consulting it, his memory is so refreshed that he can speak to the facts from a recollection of them; 2 while if he wrote it himself, he can, in some cases, testify to the truth of the facts stated, even if he has no recollection of the matter.3

If he did not write it, yet he may use it to refresh his memory, if he saw the paper while the facts therein stated were fresh in his recollection, and he can say that he then knew that they were correctly stated; otherwise if he fails to recognize the paper as a correct account of the transaction. For where the witness neither recollects the fact, nor the truth of the account in writing, and the writing was not made by him, his testimony, so far as it is founded on the written paper, would be objectionable, as hearsay; the witness can be no more permitted to give evidence of his inference from what a third person has written, than from what a third person has said.

(3) Time of writing - date of memorandum. As to the time when the memorandum should have been made, — whether it must be contemporaneous with the fact, or recently after the fact, or how long after, it may be made, the decisions, as might be expected, lay down no precise rule. There seems to be no good reason for saying, that a writing is not to be allowed for the purpose of refreshing a witness's memory, unless made cotemporaneously with the fact which it records;

1 Maugham r. Hubbard, 8 Barn. & C. 14. See also Lloyd v. Freshfield, 2 Car. & P. 325; Henry v. Lee, 2 Chit. 124.

2 Duchess of Kingston's Case, 20 How. St. Tr. 619; Henry v. Lee, 2 Chit. 124; Church v. Perkins, 3 T. R. 749; Jacob v. Lindsay, 1 East, 460; Burton v. Plummer, 2 Ad. & E. 341; Cameron v. Blackman, 39 Mich. 108; State v. Lull, 37 Me. 246.

3 As where a banker's clerk is shown a bill of exchange, with his own handwriting on it, from which

but certainly it ought to have been made either at that period, or recently after, or at the utmost before such a length of time has elapsed, as to render it probable that the memory of the witness might have become imperfect. The principle being adopted that a witness's memory may be assisted by a written paper or memorandum, it follows that no precise limited time can consistently be fixed, within which a writing must be shown to have been made, before it can be used by the witness. A memorandum made long after the fact, may be to some witnesses of much greater use than even a cotemporaneous memorandum will be to others. The effect of a memorandum in assisting a witness will depend upon the state of his memory, and the time when the memorandum was made, — which will vary in different cases.

(4) Copies, and particular writings. With regard to the use of copies of original memoranda for the purpose of refreshing the memory, the adjudications afford no precise rule of procedure. Some cases apply the rule requiring the best evidence, and thus exclude the copy.2 But it seems that if the paper used be in the nature of a duplicate original, it may be referred to. The better opinion, however, in this country, seems to be that a copy may be used if the witness is clear and explicit in his evidence that it is truly transcribed from the original, and that the original was correctly made, and was true when made, proof being also given that the original is lost.5

1 Jones v. Stroud, 2 Car. & P. 196. In Spring &c. Ins. Co. v. Evans (15 Md. 54) five months was held too long a time; and in Schwartz v. Chickering (58 Md. 290) sixteen months was held too long. See also Kendall r. Stone, 2 Sandf. (N. Y.) 269; Tanner v. Taylor, cited in Doe v. Perkins, 3 T. R. 754; Howard v. Canfield, 5 Dowl. P. C. 417; Dupuy v. Truman, 2 Younge & Coll. 341.

defaced, he had, before starting from home for the place of trial, made a correct copy thereof; and that such copy, having also become defaced, he had caused another copy to be made thereof, which he knows to be correct, - may use such second copy to refresh his memory at the trial.

4 Chicago &c. R. R. Co. v. Adler, 56 Ill. 344; Topham v. McGregor, 1 Car. & K. 320; compare Madigan r.

2 Burton v. Plummer, 2 Ad. & E. Degraff, 17 Minn. 52. 341.

8 In Folsom v. Apple River Log Driving Co. (41 Wis. 602) it is held that a witness who testifies that he made a correct written memorandum of certain facts at the time of their occurrence; that, the original being

516.

5 Felkins v. Baker, 6 Lans. (N. Y.)

Reference to copies was allowed in Com. v. Ford, 130 Mass. 64; s. c., 39 Am. Rep. 426; Clough v. State, 7 Neb. 320; George v. Joy, 19 N. H. 544; Berry v. Jourdan, 11 Rich. (S. C.) 67.