Witnesses who at trial do not remember specific facts with which they were once familiar may be shown a document or other item for the purpose of refreshing their recollection.{footnote}See NLRB v. Hudson Pulp & Paper Corp., 273 F.2d 660 (5th Cir. 1960)(rule may only be invoked where witness cannot recall matters referred to in writing).{/footnote}  The witness must thereafter be able to testify from their independent recollection, without relying on the item.{footnote}Baker v. State, 371 A.2d 699 (Md. 1977); 125 A.L.R. 19.{/footnote}

See also IDENTIFICATIONS–Out of Court Identifications: Refreshing Recollection.

What May Be Used to Refresh Memory

Any item that will refresh the witness’ recollection may be used, including nt only written documents but also other items such as photographs.  On the use of hypnosis to refresh recollection, see HYPNOSIS.

Leading questions.  A witness’ memory may also be jogged by a leading question, such as "Do you remember the person’s name as having been Smith?"{footnote} [3472]  Marchand v. Public Service Co., 65 A.2d 468 (N.H. 1949).{/footnote}  See also LEADING QUESTIONS–When Leading Questions Allowed on Direct.

Introduction of Document Used to Refresh Memory

Documents used at trial.  A document need not be admissible in order to be used to refresh recollection at trial, and the fact that it successfully refreshed the witness’ recollection does not mean that the party doing the questioning can introduce it into evidence.{footnote}United States v. Shoupe, 548 F.2d 636 (6th Cir. 1977); Check United States v. Turner, 871 F.2d 1574 (11th Cir. 1989).{/footnote}  On the other hand, opposing parties are entitled to inspect the document{footnote}Justice v. Pennsylvania R.R., 41 Ill. App. 2d 352, 191 N.E.2d 72 (4th Dist. 1963).
But see United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 233 (1940) (“Since there is no inexorable rule which under all circumstances entitles the witness and his counsel to see the prior statement made under oath and since in this case the court itself examined and thus directly controlled the use of the grand jury testimony, we cannot say that the refusal to make it available to counsel for the defense is per se reversible error.”)
{/footnote} and introduce such portions as relate to the witness’ testimony.{footnote}FRE 612; Tenenbaum v. City of Chicago, 11 Ill. App. 3d 987, 297 N.E.2d 716 (1st Dist. 1973), aff’d, 60 Ill. 2d 363 (1975). 

But see LeMaster v. Chicago Rock Island & Pacific R.R., 35 Ill. App. 3d 1001, 343 N.E.2d 65 (1st Dist. 1976) (cross-examination on refreshing record may not be used as subterfuge to read inadmissible hearsay to the jury).{/footnote}  The trial court may excise any portions which do not relate to the witness’ testimony, but the excised portions must be preserved in the record for appeal.{footnote}FRE 612.{/footnote} 

Past recollection recorded.  Even where the document did not succeed in refreshing the witness’ recollection, it might be admissible under the hearsay exception for "past recollection recorded."  See PAST RECOLLECTION RECORDED.

Waiver of privilege.  If a party in refreshing a witness’ recollection shows the witness a document as to which the calling party may claim a privilege, that privilege is waived by disclosure to the witness.

Documents used before trial.  A trial court in its discretion may order a party to produce documents used by a witness before trial to refresh recollection, or may deny such production if overbroad.{footnote}FRE 612; Prucha v. M&N Modern Hydraulic Press Co., 76 F.R.D. 207 (7th Cir. 1977)(requiring production).{/footnote} 

Jenks documents.  In federal criminal trials, the defendant must be provided upon request all prior statements given by a government witness who testifies at trial.{footnote}18 U.S.C. § 3500.{/footnote}

Sanctions.  If the witness refuses production, the court may enter whatever order justice requires.  In criminal cases, the witness’ testimony must be stricken or a mistrial must be declared.{footnote}FRE 612.{/footnote}

Procedure for Writings

To refresh a witness’s recollection with a writing, it must first be established that the witness has at least partial independent recollection of the facts in question.  The writing must then be shown to the court and to opposing counsel.  The witness must be able to testify from his or her own independent recollection after having it refreshed by the document.{footnote}Check United States v. Rinke, 778 F.2d 581 (10th Cir. 1985).{/footnote}