Examining a Witness; Memory Refreshing

“The rules relating to refreshing memory allow a witness, who has forgotten everything about an incident, to still provide testimony. To that extent it subverts the purpose of examining a witness as it means they cannot be properly questioned about their recollection since they are testifying about what they are reading and not what they remember”. To what extent do you agree with this statement? Introduction The general rule is that witnesses are not permitted to give oral evidence by reading out written statements that were prepared at an earlier time.

[1] However, a witness may be permitted to refresh his/her memory from a document whilst testifying, particularly if his/her memory of an event is poor.

[2] This essay considers whether the rules relating to refreshing memory subvert the purpose of examining a witness. The essay starts by considering the common law and statutory rules relating to the refreshment of memory. Finally, the essay considers whether the rules relating to the refreshment of memory subvert the very purpose of examining a witness. The rules relating to refreshing memory The law allows for witnesses to refresh their memories if they become forgetful.

Such law is a combination of common law and statute. The common law makes a broad distinction between refreshing memory out of court and in court. At common law, a witness may refresh his/her memories from documents out of court before testifying.

[3] Indeed, it is common practice for a witness to be shown his/her statement before giving evidence. It is courtesy to also inform the other side that this has happened. However, refreshing memory out of court must not represent an opportunity for witnesses to compare their statements or get their heads together to decide what to say

[4] or to discuss the evidence they may give even if this takes place under the guise of a case conference by the police.

[5] In Da Silva,

[6] the Court of Appeal held that a judge has discretion to decide whether to allow a witness to refresh his/her memory out of court after commencing his/her testimony, provided that certain conditions were satisfied. However, in South Ribble Magistrate Ex. p. Cochcrane,

[7] the court held that the conditions were not prerequisites to be fulfilled. In G. (Joel) (a Juvenile) (No. 1),

[8] Henry, L.J. stressed that there were no fixed or immutable rules which must be followed before a witness may refresh his/her memory from an earlier document. This process has now been simplified by section 139 of the Criminal Justice Act 2003 (“CJA 2003”), considered below, which merely requires any document to have been made at an earlier time rather than contemporaneously. At common law, a witness may refresh his/her memory in court from a document, provided that the document was made contemporaneously with the events in question, and was made or verified by the witness.

[9] This does not mean that the document must have been made simultaneously with the event(s) at the first subsequent opportunity.

For the purpose of the rule, it is sufficient, “if the writing was made or verified at a time when the facts were still fresh in the witness’s memory.”[10] The common sense principle underlying the common law rule for refreshing memory whilst testifying from a statement in a document is that the quality of the witness’s evidence is likely to be improved if the witness is allowed to use a statement made near the time as an aide-mA©moire. The same principle underlines section 139(1) of the CJA 2003, which sets out a different rule for refreshing memory. In criminal proceedings, the common law rule has not been repealed, but has in effect been replaced, and relaxed, by section 139(1) of the CJA 2003. Section 139(1) drops the common law requirement that the statement should be contemporaneous with the matters it deals with. It provides that a witness giving oral evidence in criminal proceedings about any matter may at any stage refresh his/her memory from a document made or verified by him/her at an earlier time if two conditions are satisfied.

The witness must state in his/her oral evidence that the document records his/her recollection of the matter at the earlier time, and that his/her recollection of the matter is likely to have been significantly better at that time than it is at the time of his/her oral evidence. Section 139(2) has also supplemented the common law rule by providing for the refreshing of memory from a transcript of a sound recording. Under both the common law and section 139(1), the evidence is the witness’s oral testimony, not the document used to refresh. Where the use of the document does not in fact revive a hazy or forgotten memory, there is no artificiality involved in maintaining this position.

However, the common law doctrine of refreshing memory also extends to the case where the witness’s memory of the event does not revive, but the witness is prepared to testify to it on the basis that the contemporaneous record is accurate.[11] The doctrine of refreshing memory operates as a benevolent fiction in type of cases such as Maugham v Habbard.[12] The court in effect permits the witness to give reliable hearsay evidence, on the basis that the witness is prepared to vouch for the accuracy of the contemporaneous record. It is consistent with this function that the common law requires a document used in this type of case to refresh memory to be original.[13] In other cases, the witness may revive memory from any contemporaneous document made or verified by him/her. Section 120 of the CJA 2003 contains a useful provision to take account of this point about the hearsay use of documents where the witness’s memory is not in fact refreshed by reference to the document. This eliminates some of the need to rely on the fiction just described. Section 120 creates a new rule of admissibility of statements of past recollection recorded. This applies only to statement made by the witness, not to statement verified by him/her.

When the statutory provision applies the witness’s statement will be the oral testimony plus the earlier hearsay statement. However, section 120 is not without interpretative difficulty as it omits to spell out in exactly what circumstances documents employed to refresh memory will become admissible as evidence of matters stated, either when the attempt to refresh the witness’ memory is unsuccessful or where portions of the document are not used for that purpose.[14] Do the rules relating to refreshing memory subvert the purpose of examining a witness? The purpose examination-in-chief is to elicit from the witness facts that support that party’s case.[15] Cross-examining the witness provides the accused with an opportunity to confront the evidence against them. Its purpose is to elicit facts that are favourable to the cross-examiner and to test the veracity of, or discredit, the witness.[16] Re-examining re-establishes the credibility of the witness if this was shaken by the cross-examination.[17] Thus, examination of a witness enables the trier of facts to ascertain the witness’s knowledge as to the facts in dispute between parties. Its major purpose is to discover the truth about the event in question. It has been argued that cross-examination is not a means of getting to the truth.[18] However, such criticisms must be placed alongside the importance of putting the defence version of events to witnesses and to the court.[19] Cross- examining a witness is within the notion of a fair trial by which the accused has a right to examine, or to have examined, witnesses who are used to against them.[20] The assumption of examining a witness is that by observing and listening to a witness, the trier of facts is more able to assess the weight to be attached to the witness’s evidence than by reading from a document.[21] Thus, when examined in chief, the witness would generally be expected to answer the questions from memory without the benefit of any written statements.

However, “it would be unrealistic to expect the witness to recall every detail of the event with precision without assistance.”[22] Originally, the common law tended to regard giving evidence as a memory test and frowned on the idea that a witness should be able to refresh his/her memory from his/her earlier statement.[23] Given that it may be many months between the incident and trial and the fact that witnesses such as police officers gave evidence in many different cases, such an approach made no sense and the common law retreated from it during the second part of the last century.[24] The rationale for permitting reading a statement before testifying is that, if refreshing the memory were prohibited, testimony in the witness box would have become little more than a test of memory rather than of truthfulness. It would have been impossible to police and this would have created difficulties for honest witness but do little to hamper dishonest witnesses.[25] In Richardson,[26] Sachs L.J. approved some concise comments of the Supreme Court of Hong Kong that “Testimony in the witness box becomes more of a test of memory than truthfulness if witnesses are deprived of the opportunity of checking their recollection beforehand by reference to statements or notes made at a time closer to the events in question.”[27] Thus, the willingness of the courts to permit refreshment of memory out of court is understandable. However, Choo argues that there is a danger for the practice in this area to become too unregulated.[28] He suggests for the need to introduce a Code of Practice that would govern practices and procedures in the area. Contemporaneous notes made by a witness are likely to be fuller and more accurate than his/her memory at a trial many months after the event. Moreover, contemporaneous notes, if referred to, may help to stimulate the memory to recall further facts not contained in the notes which would not otherwise have been recalled. However, there may be dangers involved.

The notes may create a spurious impression of a vivid recollection.[29] Inaccuracies in perception and memory may become crystallised. The witness may believe s/he remembers the incident but in truth only remembers his/her record of it.[30] The testimony of an untruthful witness may be given an enhanced credibility and s/he may be able to tailor his/her evidence to fit in with his/her notes.[31] Of course, in certain circumstances, it should be possible for a person to refresh their memory of events.

The difficulty is that it is more often used by professional witnesses who are generally not the ones who are most problematic. This practice was commonly used by police officers who produced and read from their notebooks, which contain the information about the incidents that they wrote down at the time. The problem is that notebooks and other such documents are hearsay and not admissible as evidence in their own right. This bizarre process attempts to avoid the consequences of the hearsay rule more than an aid to recollection.[32] This is particular in cases where the document does not stimulate the witness’s present recollection at all but where the witness accepts that his/her past recollection must have been as recorded in the document.[33] However, in civil proceedings, these contortions are unnecessary as the notes would be admissible evidence under the Civil Evidence Act 1995. In criminal proceedings, this is now governed by section 139 of the CJA 2003. However, this provision does not replace the common law.

Rather, it affects the conditions that have to be met before the witness can use the document as an aide-memoire whilst testifying. The common law requirement of contemporaneity was not strict but, despite its justifications, it has been jettisoned by section 139 which merely requires that the statement was made or verified at an earlier time. Thus, the police officer who observes an incident and a short time later in the station writes up the observations in a notebook will always be allowed to refer to them. The rules relating to refreshing memory may not necessarily subvert the purpose of examining a witness because the primacy of oral testimony and the principle of confronting one’s accusers have both been chipped away in recent years. In civil proceedings, there is less emphasis on oral testimony as only those matters in dispute need to be proved. There is greater reliance on documentary evidence and hearsay evidence has become generally admissible so that the witness does not need to be present in court unless required to be there for cross-examination.

Further, even where the witness is in court, a witness statement can be adopted as his/her evidence in chief.[34] In criminal proceedings, there are more circumstances where written statements or recordings can be admissible as evidence.[35] Conclusion Given the difficulty often experienced by witnesses in recollecting the events to which their evidence relates, the common law evolved to allow a witness to refresh his/her memory from a document made or verified by him/her at an earlier time. The common law rules have been supplemented and, in part, superseded by the section 139 of the CJA 2003.The rules relating to refreshing memory does not subvert the purpose of examining a witness. The process of testifying should not be treated as a test of memory but a process designed to test the honesty and reliability of a witness. Nonetheless, the scope of use of the rules relating to memory refreshing has diminished by the reason of the growth in the categories of admissible hearsay and the introduction of rules permitting a witness statement to stand as a witness’s evidence-in-chief unless the court orders otherwise. 1

[1] G. Durtson, Evidence: Text and Materials (OUP 2008) 292

[2] Ibid 293

[3] Richardson [1973] 2 Q.B. 484

31] Ibid

[5] Skinner (1994) 99 Cr. App. R. 212

[6] [1990] 1 ALL ER 29

[7] [1996] 2 Cr. App. R. 544

[8] [2002] EWCA Crim. 01

[9] A. Keane, J. Griffiths and P. McKeown, The Modern Law of Evidence (8th edn, OUP 2010) 163 [10] Attorney-General’s Reference (No. 3 of 1979) (1979) 69 Cr. App. R. 411, 414; see also Simmonds [1969] 1 Q.B. 685 [11] See Maugham v Habbard (1828) 8 B & C. 14; Topham v McGregor (1844) 1 Car. & Kir. 320 [12] (1828) 8 B & C. 14 [13] Doe d Church and Phillips v Perkins (1790) 3 Term Rep. 749; Harvey (1869) 11 Cox C.C. 546 [14] R. Munday, “Refreshing Memory: Previous Statements that fails to Revive Witnesses” (2012) 176 JPN 213; P. Mirfield, “Evidential Memory, Forgetfulness and Identification” (2013) 129 LQR 157 [15] J. Linda and M. Ramjohn, Unlocking Evidence (Hodder Education 2009) 134 [16] Ibid [17] Ibid [18] See J. Spencer and J. Flin, The Evidence of Children: The Law and Psychology (2nd edn, Blackstones 1993) 278-79 [19] S. Uglow, Evidence: Text and Materials (2nd edn, Sweet & Maxwell 2006) 472 [20] See European Convention on Human Rights, Art. 6(3)(d) [21] Uglow, Evidence: Text and Materials (n. 19) 437 [22] Linda and Ramjohn, Unlocking Evidence (n. 15 ) 135 [23] P. Huxley, Evidence: The Fundamentals (2nd edn, Sweet & Maxwell 2010) 56-57 [24] Keane, Griffiths and McKeown, The Modern Law of Evidence (n. 9) 163; P. Murphy, Murphy on Evidence (11th edn, OUP 2009) 571 [25] Linda and Ramjohn, Unlocking Evidence (n. 15) 140 [26] [1971] 2 Q.B. 484 [27] Lau Pak v R [1966] Crim. L.R. 443 [28] A. Choo, Evidence (3rd edn, OUP 2012) 76 [29] M. Newark and A. Samuels, “Refreshing Memory” (1978) Crim. L.R. 408 [30] Ibid [31] Ibid [32] Uglow, Evidence: Text and Materials (n. 19) 443 [33] See Maugham v Habbard (1828) 8 B & C. 14; Topham v McGregor (1844) 1 Car. & Kir. 320; Kelsey (1982) 74 Cr. App. 213 [34] See Civil Evidence Act 1995, s. 6 [35] See, for example, Criminal Justice Act 1967, s. 9 and 10; CJA 2003, ss. 116 and 117

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