lawcraft series installment 1

PARDALIS & NOHAVICKA LLP, ASTORIA NY -- 718.777.0400

LAWCRAFT SERIES INSTALLMENT 1

718.777.0400

: When Your Witness Shuts Down On the Stand

“ANOTHER KIND OF LAWFIRM”


Going to court for any reason is not usually pleasant.


The court environment is purposefully architected to evoke solemnity and gravitas: it can be a scary place.


The most confident personality may find themselves paralyzed with fear or emotion causing a

shutdown of memory.


Having to take a seat in the witness chair to testify at trial can be stressful for anyone.


Preparation for trial in the office may help; but you never know how a person is going to perform in the fog of trial.


“I CAN’T REMEMBER.”HERE IS THE SCENARIIO: YOUR WITNESS HAS BEEN TESTIFYING WELL ANSWERING ALL QUESTIONS ABOUT THEIR RESIDENCE, EDUCATION, AND EMPLOYMENT. BUT AS THE QUESTIONS BECOME MORE DEMANDING THE WITNESS BECOMES SHAKEN AND BEGINS ON AN EMOTIONAL DOWNWARD SPIRAL. THEY ARE ASKED A QUESTION THAT YOU SPOKE ABOUT JUST THE DAY BEFORE, BUT NOW THEY JUST CANNOT REMEMBER. YOU ASK THE QUESTION A ND THE WITNESS JUST STARES BACK AT YOU .

DO NOT PANIC.

SMILE AT THEM (REALLY), AND BEGIN TAKING STEPS TO REFRESH THEIR RECOLLECTION. YOU HAVE IT UNDER CONTROL..


STEP ONE: ESTABLISHING FAILURE OF MEMORY

WELL, THE WITNESS HAS SHUT DOWN AND I S UNABLE TO ANSWER THE QUESTION. YOU KNOW THE WITNESS HAS THE ABILITY TO ANSWER. HERE IS YOUR NEXT QUESTION:

Q: “DO YOU REMEMBER WHAT DATE IT WAS THAT YOU MAILED THE CONTRACT?”A: “I DO NOT REMEMBER THE DATE RIGHT NOW.”

THAT IS IT. FAILURE OF MEMORY HAS BEEN ESTABLISHED. THAT NOW OPENS THE DOOR FOR YOU TO REFRESH THE MEMORY OF THE WITNESS.

FEDERAL RULE OF EVIDENCE 612 PROVIDES THAT: “A WITNESS MAY USE A WRITING OR OTHER ITEM TO REFRESH MEMORY FOR THE PURPOSE OF TESTIFYING WHILE TESTIFYING, OR BEFORE TESTIFYING.” NY STATE LAW AUTHORITY IS McCarthy v. Meaney, 183 N.Y. 190 (1905).


STEP TWO: ESTABLISHING THAT MEMORY FAILURE CAN BE FIXEDHERE IS THE NEXT QUESTION THAT YOU PUT TO THE WITNESS:

Q: IS THERE SOMETHING THAT EXISTS THAT WOULD REFRESH YOUR MEMORY?

A: YES.

Q: WHAT IS THAT.?

A. I WAS INVOLVED IN AN ACCIDENT ON THE WAY TO MAILING CONTRACT; SO, THE ACICIDENT REPORT WOULD HELP.

Q: I WILL SHOW THAT TO YOU.


STEP THREE: GETTING THE DOCUMENT (OR THING TO THE WITNESS’S HANDSNEXT YOU RETRIEVE THE DOCUMENT THAT YOU WILL BE SHOWING THE WITNESS TO REFRESH THEIR MEMORY.

YOU THEN ADDRESS THE COURT: “YOUR HONOR, MAY I HAVE THIS DOCUMENT MARKED FOR IDENTIFICATION PURPOESE ONLY AS PLAINTIFF’S EXHIBIT 10-B.”

THE TRIAL STOPS: THE COURT REPORTER STOPS TAKING DOWN THE TESTIMONY (SEE NEXT SLIDE). YOU HAND THE DOCUMENT TO THE COURT OFFICER OR BAILIFF AND THE REPORTER PLACES AN EXHIBIT STICKER ON THE DOCUMENT (SEE PHOTO RIGHT HAND CORNER), AND WAIT FOR THE DOCUMENT TO BE HANDED BACK TO YOU.


HERE IS A COURT REPORTER. THE MACHINE THEY TYPE ON IS A STENOTYPE MACHINE. HERE IS THE LINK TO AN INTERESTING SIX-MINUTE EXPLANATION OF THE SYSTEM THAT IS USED: https://www.youtube.com/watch?v=__JkYUrIglg


STEP FOUR: REFRESHINGTHE DOCUMENT HAS BEEN HANDED BACK TO YOU. NOW YOU ASK THE COURT’S PERMISSION TO HAVE THE DOCUMENT HANDED TO THE WITNESS. AFTER SHOWING THE DOCUMENT TO YOUR ADVERSARY, YOU SAY THIS:

“YOUR HONOR, MAY WE HAVE THE DOCUMENT PRESENTED TO THE WITNESS.”

THE DOCUMENT IS THEN HANDED TO THE WITNESS BY THE COURT OFFICER OR BAILIFF. THEN YOU SAY:

“YOU HAVE JUST BEEN HANDED PLAINTIFF’S 10-B FOR ID. CAN YOU PLEASE REVIEW THAT DOCUMENT AND SEE IF YOUR MEMORY IS REFRESHED? “


STEP FOUR: (CONT’D)

IF THE WITNESS IS HAVING DIFFICULTY FINDING THE INFORMATION THEY NEED TO REFRESH THEIR MEMORY ASK THE COURT’S PERMISSION TO APPROACH THE WITNESS AND DIRECT THEM TO EXACTLY WHERE THE INFORMATION IS LOCATED IN THE DOCUMENT. YOU SAY:

“YOUR HONOR, MAY I APPROACH THE WITNESS?


STEP FIVE: PREVENTING PREMATURE TESTIMONY

MANY TIMES THE WITNESS WILL BE SO ELATED THAT THEY CAN REMEMBER THE ANSWER TO THE QUESTION THAT THEY BEGIN BLURTING OUT TESTIMONY OR THEY START READING THE DOCUMENT OUT LOUD. THAT WILL DRAW AN INDIGNANT OBJECTION FROM OPPOSING COUNSEL AND AN ADMONISHMENT FROM THE BENCH. HERE IS WHAT YOU SAY TO THE WITNESS:

“DO NOT SAY ANYTHING UNTIL I ASK YOU A QUESTION. JUST READ THE DOCUMENT TO YOURSELF. LET ME KNOW WHEN YOU ARE FINISHED.


YOU CAN REFRESH THE MEMORY OF A WITNESS USING VIRTUALLY ANYTHING

“I AM SHOWING YOU WHAT HAS BEEN MARKED AS PLAINTIFF’S EXHIBIT 7 FOR IDENTIFICATION. CAN YOU PLEASE EXAMINE THIS EXHIBIT? IS YOUR MEMORY NOW REFRESHED AS TO WHAT COLOR THE DEFENDANT’S PANTS WERE ON THE DAY OF THE ATTACK?”


EVEN PHOTOGRAPHS

“DOES THIS PHOTOGRAPH REFRESH YOUR RECOLLECTION AS TO WHO THE THIRD PERSON WAS AT THE MEETING ON THE NIGHT IN QUESTION?”


OBJECTS


OR WEBSITES

YOU CAN USE JUST ABOUT ANYTHING TO REFRESH THE MEMORY OF THE WITNESS. BUT IT IS IMPERATIVE TO ALLOW THEM TO REFRESH THEIR MEMORY FIRST BEFORE ASKING THE QUESTION THAT THEY FORGOT THE ANSWER TO AGAIN.


STEP SIX TAKING THE REFRESHING EXHIBIT BACKTHE WITNESS HAS NOW REVIEWED THE EXHIBIT. YOU THEN ASK THIS QUESTION:

“IS YOUR MEMORY NOW REFRESHED?”

YOU THEN ASK THE COURT TO HAVE THE EXHIBIT RETURNED TO YOU.“YOUR HONOR, MAY I PLEASE HAVE THE EXHIBIT RETURNED?”

RETURN TO THE PODIUM


STEP SEVEN: RE-ASKING YOUR QUESTIONYOUR WITNESS’S MEMORY HAS NOW BEEN REFRESHED AND IS READY TO BE RE-ASKED THE QUESTION:

“WHAT WAS THE DATE THAT YOU MAILED OUT THE CONTRACT?”

THAT IS IT. IF YOU ASK THE QUESTION BEFORE YOU HAVE THE EXHIBIT RETURNED TO YOU, HERE IS THE OBJECTION THAT YOU WILL MOST LIKELY HEAR:“I OBJECT TO THE WITNESS’S READING FROM THE EXHIBIT USED TO REFRESH RECOLLECTION BECAUSE IT IS NOT IN EVIDENCE AND BECAUSE IT IS HEARSAY.

IT IS OKAY. JUST GET THE DOCUMENT AWAY FROM YOUR WITNESS AND ASK THE QUESTION AGAIN.


CAVEAT

KEEP IN MIND THAT AN ADVERSE PARTY IS ENTITLED TO HAVE THE WRITING PRODUCED AT THE HEARING, TO INSPECT IT, TO CROSS-EXAMINE THE WITNESS THEREON, AND TO INTRODUCE IN EVIDENCE THOSE PORTIONS WHICH RELATE TO THE TESTIMONY OF THE WITNESS. SO YOU HAVE TO BE CAREFUL OF THE DOCUMENTS OR THINGS THAT YOU USE TO REFRESH THE WITNESS’S RECOLLECTION


DISTINGUISH REFRESHING RECOLLECTION FROM PAST RECOLLECTION RECORDED

Refreshing recollection IS different from past recollection recorded. If the witness has no present memory of the fact after examining the document or notes, the witness will not be permitted to read from the document or notes unless they are admitted into evidence. Since writings are typically hearsay, they will not be admitted unless they qualify as an exception to the hearsay rule.


CHEAT SHEET

Witness knows the facts, but has a memory lapse on the stand Witness knows the exhibit will refresh their memoryWitness is given and reads the document Witness states their memory has now been refreshedWitness now testifies to what they know, without further aid of the exhibit.


YOUR CHEAT SHEET

Ask “Do you remember?”Mark the exhibit (it should be marked for identification purposes even though it is not offered into evidence – no need to lay foundation).

Show to opposing counsel, they are entitled to inspect the writing and cross-examine the witness concerning it

Get the exhibit back from the witness before you ask the questions otherwise opposing counsel can object.


LAST LOOK. AND GOOD LUCK ON TRIAL

1. Do you recall …2. Is there anything that would refresh your memory3. What would that be?4. Your Honor, I ask this document be marked as Plaintiff's Exhibit 2 for I.D.5. I am showing 2 for I.D. to opposing counsel.6. May I approach the witness? or Can 2 for I.D. be given to the witness?7. You have been handed Plaintiff's Exhibit 2 for I.D. Do you recognize this?8. What is it?9. Please read it.10. Get the exhibit back and re-ask the question.


LAWCRAFT SERIES END OF INSTALLMENT 1

718.777.0400

: When Your Witness Shuts Down On the Stand

“ANOTHER KIND OF LAWFIRM”

lawcraft series installment 1

Law

astoria ny

stand pardalis nohavicka

witness chair

failure of memory

memory failure

shutdown of memory

ny state law authority

court reporter stops