In my last post, I said that impeachment is the single most important tool for cross examining witnesses at trial. It is. Another important tool is refreshing recollection. Refreshing a witness’s recollection is a cousin of impeachment. They are both ways to confront a witness with some material—usually a document—in order to make a point to the jury. But there are some important differences in both the utility and mechanics of refreshing recollection.

That’s what this post is about.

When Can You Refresh?

Typically, you will use refreshing recollection when you have something that you believe should lead a witness to make an admission, but that “something” is not a prior statement of the witness and may not even be admissible.

Here’s an example. Witness Jane Smith, company CEO, is on the stand and you have the following email that you obtained in discovery:

From: John Johnson [External]

To: Jim Withers, CFO

Date: February 5, 2022

Subject: Today's Meeting

Jim,

Thanks for today’s meeting with you and Jane. As one of your major shareholders we appreciate the attention. Bob Roberts did tell me he was surprised that Jane pulled him over and told him that her statement on the earnings call about achieving sales projections wasn’t accurate. We’ll let you know if we need any more info.

Let’s further suppose that what this e-mail appears to show—i.e., the CEO admitting she lied to investors—is a great fact for your case. The question is: how do you use this e-mail on cross?

The first thing you need to realize it that this e-mail is (probably) not admissible evidence of a prior statement of Ms. Smith’s. The e-mail is hearsay on multiple levels – it’s an out of court statement by John Johnson about something Bob Roberts told him that Ms. Smith said—and so, absent more, you can’t use it to prove up that Ms. Smith actually said that. (Assume for purposes of this example that the e-mail doesn’t qualify for some hearsay exception – though it’s a fun little exercise to think about which ones might apply…)

So what can you do? Because this isn’t admissible evidence of Ms. Smith’s prior statement you cannot impeach her with it. But you might be able to refresh her recollection with it. That is, you might be able to use the e-mail to get her to admit in front of the jury that she remembers making this statement.

The reason you can do this is because of the following key rule about refreshing recollection: You can refresh a witness’s recollection with anything at all, regardless of whether or not it is admissible evidence.

That sounds pretty good, but the reason attorneys would much rather impeach a witness then refresh the witness’s recollection is because refreshing comes with some significant risks.

The Risks with Refreshing

There are two big risks in trying to refresh a witness’s recollection:

First, in order to refresh recollection, you need a failure of recollection. In this case, Ms. Smith has to say she doesn’t remember whether she made this statement to Mr. Roberts. A witness can frustrate your attempted refreshing by saying that they do recall. For example, if this happens, you’re done:

Q. Didn’t you tell Mr. Roberts that your statement on the earnings call about achieving sales projections wasn’t accurate?

A. Absolutely not.

You can’t refresh a witness’s recollection if they claim they already remember what happened (or didn’t happen). You now have nowhere to go.

Second, using a document to refresh a witness’s recollection does not convey any additional evidentiary status to the document. This is really the converse of the fact that you can use anything, whether or not it’s admissible, to refresh a witness. You can, but that doesn’t make the “anything” admissible. Accordingly, if the witness is not refreshed by your document, there's nothing more you can do.

Compare this to impeachment. If you have direct evidence (not layered hearsay, like the example above) of a witness’s prior statement that contradicts what the witness says on the stand, that evidence is admissible—at least to prove the contradiction and maybe even to prove the underlying fact (if the prior statement was under oath). As a practical matter, what that means is you can read this document to the jury, and you can reference it in closing. 

None of that is true with refreshing recollection. If this happens, you’re done:

Q. Does reading this email refresh your recollection that your statement on the earnings call about achieving sales projections wasn’t accurate?

A. Not at all.

You can’t now read the email to the jury. You can’t show it to them. Nothing. At best the jury is just confused about what happened. At worst, you’ve given the witness an opportunity to emphasize her denial.

Should You Refresh?

Ok; these risks sounds pretty bad. Does this mean you should never try to refresh a witness’s recollection? No, but these downsides should go into your calculus about whether or not to try refreshing.

For example, you should think about whether there are other ways to get in the facts you need. In the example above, could you call Bob Roberts as witness rather than trying to elicit this admission on the cross of Ms. Smith?

You should also think about how hostile the witness is going to be to the attempt to refresh. In the example above, it seems likely the witness would be inclined (or prepped) to deny the event happened, but other examples may be less contentious. What if all you need to establish is that a meeting happened? The witness might not be hostile to that sort of refreshing.

And of course, you should also think about how much you have to lose or gain. In the example above, it may be that you aren’t any worse off for trying to refresh the witness’s recollection. Ms. Smith has probably already denied that she made any misstatements. On the other hand, if you don’t try refreshing her recollection, this great e-mail you have is going to go to waste.

The key point I want to make here is that refreshing recollection is trickier and more fraught than impeachment. Don’t avoid it, but make sure to use it thoughtfully.

Now, with all that said, if you’ve decided to try to refresh a witness’s recollection, you can do it in a way that minimizes (not eliminates) the risks we’ve been discussing.

Let’s take a look.

How To Refresh

Here’s how to try to refresh Ms. Smith’s recollection using Mr. Johnson’s email:

Q. Ms. Smith, do you recall a meeting you had with John Johnson and Bob Roberts shortly after your Q1 earnings call?

A. Yes.

Q. And do you recall that a purpose of that meeting was to be able to have a private discussion with an important investor?

A. Yes.

Q. And do you recall at that meeting telling Mr. Roberts that your statement on the earnings call about achieving sales projections wasn’t accurate?

A. No.

Q. Ms. Smith can you turn to tab 5 in your binder? Do you see that document?

A. Yes.

Q. Do you see that this is an e-mail from Mr. Johnson from the day of your meeting to your CFO Mr. Withers?

A. Yes.

Q. Now, without revealing the contents of that e-mail to the jury, can you please read it to yourself? Have you done that?

A. Yes.

Q. Does this refresh your recollection that during that meeting you “pulled Mr. Roberts over and told him that your statement on the earnings call about achieving sales projections wasn’t accurate?”

A. Yes; I guess I might have said that

-- or –
A. No; it doesn’t.

The Breakdown

Let’s walk through these questions and see why they are structured the way they are. Like all things in cross-examination, you really should not ad-lib. Every word of your questions should be designed to maximize your chances of controlling the examination and getting what you need.

Q. Ms. Smith, do you recall a meeting you had with John Johnson and Bob Roberts shortly after your Q1 earnings call?

A. Yes.

Q. And do you recall that a purpose of that meeting was to be able to have a private discussion with an important investor?

A. Yes.

These two questions are lead-in’s to the key setup question you want to ask as the basis for refreshing the witnesses recollection—in this case, the set up question is if she remembers her admission to Mr. Roberts.

These preliminary questions here serve to set the stage and provide context for that question, but they also serve a subtler, and very important, purpose -- to establish a rhythm with the witness of answering “do you recall” questions with yes/no answers without realizing they are “recall” questions.

What do I mean by “without realizing they are ‘recall’ questions”? I’ll illustrate. Suppose I ask you the following series of question:

• Do you recall taking contracts in your first year of law school?
• Do you recall that this was a core class?
• Do you recall learning about various types of contract damages?
• And do you recall that this was a difficult topic?

What is almost certain to happen is that you will start to ignore the “do you recall” part of the questions. Instead, you will probably just answer them the same way as if I’d asked them directly, as follows:

• Did you take contracts in your first year of law school?
• This was a core class, correct?
• You learned about various types of contract damages?
• And this was a difficult topic?

This is especially true if the answer to the question is “yes”. It just isn’t natural to answer questions by saying something awkward like “Yes, I recall that, and yes, it happened.” Your strong instinct is just to say “yes.”

The reason this is important is because by setting up this sort of rhythm with a witness you are maximizing your odds that the witness will answer the next question--the important one--the way you want.

Q. And do you recall at that meeting telling Mr. Roberts that your statement on the earnings call about achieving sales projections wasn’t accurate?

A. No.

As we discussed above, one of the risks of refreshing recollection is that the witness doesn’t have a failure of recollection. By phrasing this question as a leading question that starts with “Do you recall” and by putting it after a series of “do you recall” questions that were designed to condition the witness to start ignoring the “do you recall” part of the question, you maximize the chances of simply getting a “no” here.

Importantly, you are likely to get a “no” here even if what the witness meant to say was “No; I don't recall that because that didn’t happen.”

Again, it’s just human nature. Once the witness has gotten in the rhythm of treating “Do you recall” questions as “Did you” questions, it’s hard to break out of it. By structuring your questions this way, you are maximizing your chances of establishing a failure of recollection rather than a denial.

Put another way, in order to frustrate your setup, the witness would have to be alert enough to realize what is going and to answer your last question with the awkward, if precise, formulation “No, I don’t recall that, because it didn’t happen.” It’s a rare witness that will do that; most witnesses, even if that’s what they mean, will just say “no”. Which is what you want; you’ve now set up that they don’t recall.

By the way, if you do get a denial, realize that you are done here. Don’t go on with trying to refresh recollection. If a witness is smart enough to take that last question and answer it by saying “No, I don’t recall that, because it didn’t happen,” you: (a) haven’t established the necessary failure of recollection and (b) your attempt to refresh was going to fail anyway. This is a well prepared or very attentive witness. Cut your losses and move on to your next set of questions.

But most of the time this will work, and you can move on with your refreshing.

Q. Ms. Smith can you turn to tab 5 in your binder? Do you see that document?

A. Yes.

Q. Do you see that this is an e-mail from Mr. Johnson from the day of your meeting to your CFO Mr. Withers?

A. Yes.

These questions are partly logistical. You are using questions to make sure the witness is looking at the same document as you and is at the right place. As I mentioned in my post on impeachment, don’t neglect these sorts of logistics. You don’t want your rhythm thrown off by a witness who has lost their place in a document or isn’t looking at the right document.

But these questions serve another purpose as well. They are giving the jury a very clear indication of what the witness is looking at. This is important. The jury now knows the witness is looking at an email from her CFO, and the witness knows the jury knows that. This doesn’t make it impossible for the witness to deny what’s in the e-mail, but it tilts the playing field a little more in your favor. The witness is now looking at a “bad document" and they will have strong tendency to think that everyone else knows they are too. Human nature again. And again, another way to maximize your odds of getting the admission you want.

Note that you have not violated any evidentiary rule here. You haven’t tried to introduce the document, and you haven’t revealed its contents. This is where you want to be. You want the jury to know that you clearly have something here, without actually getting in trouble with the judge by revealing the substance of the (inadmissible) document.

Q. Now, without revealing the contents of that e-mail to the jury, can you please read it to yourself? Have you done that?

A. Yes.

A few things going on here. First, you are getting the witness to read the document in front of the jury so the witness feels maximal pressure to answer your next question correctly. Second, you are protecting yourself from the other side objecting. And let’s be clear, with a multi-level hearsay “bad document" like this e-mail, the other side is dying to object. But by asking the question this way, you’ve taken the wind out of their sails – you are making it perfectly clear you are not trying to admit this document. If opposing counsel does object, you’ll simply say to the judge “Your honor, I’m refreshing recollection,” and the judge will know exactly what’s going on.

Q. Does this refresh your recollection that during that meeting you “pulled Mr. Roberts over and told him that your statement on the earnings call about achieving sales projections wasn’t accurate?”

A. Yes; I guess I might have said that

-- or –
A. No; it doesn’t.

And here’s the ultimate question. Will the witness admit to saying this? I’ve written out both possibilities because—unlike impeachment—where you can completely prevent the witness from going off script—you don’t have that luxury when refreshing. You have to ask the witness if her memory is refreshed, and you have to be prepared to live with the answer. It’s nerve-wracking. It’s why lawyers prefer impeachment.

That said, doing the examination the way I’ve laid it out has considerably de-risked this last question. Think about how this looks to the jury. They know the witness is looking at a document; they know that document is an email from the CFO on the date of the meeting; they think this document must have something to do with Ms. Smith said in the meeting (otherwise why would you have asked her to read it); if you’re lucky the witness maybe had some change of facial expression when she read the email and maybe the jury thinks the document has made her uncomfortable. So already, the jury is thinking there must be something in that e-mail.

And now you’ve asked a question that, let’s be honest, the jury is going to assume is actually what is in the e-mail. Don’t be shy about making that even more clear in how you ask the question—look down at the document when you are reading the part that is basically a quote (which is why I put it in quotes when I wrote it out). Just make sure you don’t step over the line and actually say that you are reading from the document. (Footnote: I’ve seen lawyers get away with crossing even that line, but it’s not proper and I can’t recommend it.)

All of this does two things.

One, it puts a lot of pressure on the witness. They might still give you a denial, but they are only going to do it if they are really committed to their story. If they have the slightest bit of doubt or hesitance, you could easily get the admission you want.

Two, even if they do deny it, this won’t look to the jury like a routine or repetitive denial. Your build up will leave the jury with a notion that there was probably something going on in that email even if it didn’t totally play out the way you wanted. Is that evidence? No. Can you reference it in closing? No. Is it as good as an impeachment? No way. But at best you’ve put a little doubt about the witness’s credibility in the jury’s mind, and at worst you probably haven’t hurt your case.

* * *

One final thought: not all refreshing recollection is as difficult as the example above. Trying to "refresh" a hostile witness in order to get an admission is the hardest and riskiest type of refreshing you can do. Often you will be refreshing witnesses on simpler, less contentious topics where the likelihood of the witness fighting (and the risks if they frustrate your attempted refreshing) are lower. Even then, however, I encourage you to follow these mechanics. Don't get sloppy with your cross just because you are trying to refresh a witness on an "easy" fact. Cross examination, even the easier parts, is all about controlling witnesses and eliminating risk--these techniques will help you do that when refreshing a witness's recollection on any topic.