PastPaperHero | Presentation of evidence

Learning Outcomes

This article explains the rules governing refreshing a witness’s recollection for MBE Evidence questions, including:

understanding when a witness is considered to have an insufficient recollection on the stand;
distinguishing present recollection refreshed from past recollection recorded and recognizing which doctrine each fact pattern triggers;
identifying what materials may be used to refresh recollection and why admissibility is not required;
applying the proper foundational questions before an item is shown to the witness;
analyzing the procedural rights of the adverse party under Rule 612, including inspection and use on cross-examination;
determining when a court may compel production of writings reviewed before testimony and related privilege concerns;
evaluating whether the witness is testifying from refreshed memory or reading a recorded recollection into evidence;
recalling the foundational requirements for admitting a past recollection recorded under Rule 803(5);
predicting the evidentiary status of the writing itself, including when it may be received as an exhibit;
spotting common MBE trap answers that misstate admissibility, authorship requirements, or the opponent’s inspection rights.

MBE Syllabus

For the MBE, you are required to understand the rules governing the presentation of evidence, particularly the methods for refreshing a witness’s memory, with a focus on the following syllabus points:

Recognizing when a witness’s recollection may be refreshed.
Identifying permissible materials and methods for refreshing recollection.
Distinguishing between present recollection refreshed and past recollection recorded (recorded recollection).
Understanding the procedural rights of opposing counsel during the process.
Applying these rules to fact patterns involving witness testimony.
Understanding how refreshing recollection interacts with hearsay and the best evidence rule.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

During direct examination, a witness cannot recall a key fact. The attorney shows the witness a document to help the witness remember. Which of the following is true?
1. Only documents created by the witness may be used.
2. Any item may be used to refresh recollection, subject to the judge’s discretion.
3. The document must be admitted into evidence before being used.
4. The witness must read the document aloud to the jury.
If a witness’s recollection is refreshed with a document, what right does opposing counsel have?
1. No right to inspect the document.
2. The right to inspect and cross-examine on the document.
3. The right to exclude the document from evidence.
4. The right to demand the witness read the document verbatim.
What is the main difference between present recollection refreshed and past recollection recorded?
1. Only the latter allows the document to be read into evidence.
2. Both require the document to be admitted as an exhibit.
3. Both require the witness to have written the document.
4. There is no difference.
A witness reviewed her notes the night before trial to refresh her memory. On cross-examination, the opposing attorney demands to see those notes. Under the Federal Rules of Evidence, which is most accurate?
1. The opposing party has an automatic right to inspect the notes.
2. The judge has discretion whether to order production of the notes.
3. The notes are privileged and can never be inspected by the opposing party.
4. The notes must be admitted as an exhibit before inspection is allowed.

Introduction

A witness’s memory may fail during testimony. The rules of evidence allow an attorney to help a witness recall facts by refreshing the witness’s recollection. This process is strictly regulated to ensure fairness, to preserve the jury’s role in evaluating credibility, and to prevent a party from smuggling inadmissible hearsay to the jury.

Refreshing recollection is conceptually simple: something jogs the witness’s memory, and the witness then testifies from that now-refreshed memory. The writing or object used to prompt the memory is not itself the evidence; the evidence is the witness’s oral testimony.

When refreshing does not work—when the witness still cannot remember even after being prompted—the law offers a different solution: the hearsay exception for past recollection recorded (also called recorded recollection). For MBE purposes, you must distinguish clearly between:

Present recollection refreshed (a mode of presenting testimony), and
Past recollection recorded (a hearsay exception that allows a record to be read to the jury).

Key Term: Present Recollection Refreshed
The process of using a writing or object to prompt a witness’s memory so the witness can testify from present memory, not from the writing or object itself.

Key Term: Refreshing Recollection
The act of showing (or otherwise exposing) a witness to a writing, object, sound, or other stimulus to help the witness remember facts, so the witness can then testify from present memory.

When May Recollection Be Refreshed

If a witness cannot recall a fact while testifying, the attorney may attempt to refresh the witness’s memory. This can occur on either direct or cross-examination. Typical foundations look like:

Establish the witness had personal knowledge: “Were you present at the intersection on the day of the accident?”
Establish the current memory problem: “Do you remember the color of the traffic light at the time of the collision?”
Ask whether something might help: “Would looking at your notes from that day help refresh your memory?”

If the witness agrees that a writing or other item might help, the attorney may show it to the witness.

Important points for the exam:

The witness must have had personal knowledge of the event originally. Refreshing recollection cannot substitute for the requirement of personal knowledge.
The witness need not have completely forgotten the event; refreshing is allowed whenever memory is incomplete or uncertain.
The decision to allow refreshing is within the trial judge’s discretion, but courts are generally liberal in permitting it.

The goal is always the same: to stimulate the witness’s present recollection so that the witness can testify from memory, not from the document or item itself.

Permissible Materials and Methods

Any item may be used to refresh recollection—notes, photographs, letters, a calendar, a song, a smell, or any other stimulus—if the judge finds it appropriate.

Key Term: Refreshing Recollection
The act of using a writing, object, or other stimulus to jog a witness’s memory so the witness can give present, sworn testimony; the writing or object is not the evidence.

Key features:

No admissibility requirement: The item used to refresh does not need to be admissible evidence. It can be hearsay, lack authentication, or even be something like a song or a smell. The rationale is that the jury does not receive the item as evidence; it is just a memory aid.
No requirement that the witness created it: The writing can be prepared by someone else (e.g., a police officer’s report), as long as it helps the witness remember.
Method: The attorney typically shows the item to the witness, the witness reviews it silently (or listens privately, etc.), then sets it aside and testifies from memory.

The witness should not read from the document while testifying in a present recollection refreshed scenario.

Under the rules:

The writing is not authenticated.
The writing is not being offered into evidence.
The writing is not being offered for its truth, so hearsay rules are not triggered.

The classic description is that the writing “jogs” the memory; once the witness’s memory is refreshed, only the refreshed memory is presented to the jury.

To illustrate the breadth of permissible methods, consider the following:

In one example, a witness could not recall what occurred on the night in question. The attorney asked, “Would it help you remember what happened that night if I sang part of an aria that was playing at the time?” The witness agreed; the attorney sang the song, and the witness suddenly remembered everything that happened.

This is a valid use of present recollection refreshed, even though no writing was used.

The key is not the form of the stimulus but its function—refreshing present memory.

Procedural Rights of Opposing Counsel

Whenever a witness’s recollection is refreshed with a writing while testifying, the opposing party gains important procedural rights under Federal Rule of Evidence 612.

Key Term: Inspection Right
The procedural right of the opposing party to review any writing used to refresh a witness’s recollection while testifying, and to use it for cross-examination and, if fairness requires, to introduce relevant portions into evidence.

If a writing is used to refresh while the witness is on the stand:

The adverse party has a right to inspect the writing.
The adverse party may cross-examine the witness about the writing.
The adverse party may introduce into evidence any portions that relate to the witness’s testimony, if fairness demands.

This is true even though the proponent did not (and often could not) introduce the writing itself. Rule 612 allows the adverse party to do so in the interest of fairness. On the MBE, answer choices that deny the inspection right or say the document “cannot be shown to the jury” after it has been used to refresh recollection are usually wrong.

If a writing is used to refresh a witness’s memory before the witness testifies (for example, the witness reviewed notes the night before trial), the court has discretion:

The adverse party may request production and inspection of the writing.
The judge decides whether “justice requires” production, potentially after reviewing the writing in camera and redacting unrelated portions.

If the party who used the writing refuses to produce it when ordered, the court may:

Strike the witness’s testimony, or
In a criminal case, declare a mistrial in extreme situations.

Finally, note that privileges may be implicated. If a privileged document is used to refresh a witness’s recollection, the court may find that privilege is waived as to those portions reasonably related to the testimony, at least for purposes of inspection and cross-examination.

Distinguishing Present Recollection Refreshed from Past Recollection Recorded

If refreshing fails and the witness still cannot recall, a different rule applies: past recollection recorded, also known as recorded recollection. This is not just a mode of examining a witness; it is a hearsay exception under Federal Rule of Evidence 803(5).

Key Term: Past Recollection Recorded
A hearsay exception that allows a writing to be read into evidence when a witness cannot recall well enough to testify, if the witness once had knowledge, made or adopted the record when the matter was fresh, and affirms that the record accurately reflected their knowledge at the time.

For past recollection recorded, the proponent must show:

The witness once had personal knowledge of the matter.
The witness made or adopted the record.
The record was made or adopted when the matter was fresh in the witness’s memory.
The record accurately reflected the witness’s knowledge at that time.
The witness now has insufficient recollection to testify fully and accurately, even after an attempt to refresh recollection.

If these elements are satisfied:

The record may be read into evidence (the content is presented to the jury).
The record itself is not received as an exhibit by the proponent; only the adverse party may choose to introduce the writing as an exhibit.

This restriction on admitting the document as an exhibit is heavily tested. The policy is to give the jury the benefit of the accurate contemporaneous record while still discouraging overreliance on writings and protecting against undue emphasis on the document itself.

Contrast this with present recollection refreshed:

Present recollection refreshed:
- Any item can be used; no requirement that the witness made or adopted it.
- The item is not evidence; the witness testifies from present memory.
- The witness does not read the writing to the jury.
- Opposing counsel can inspect and, if fairness requires, introduce relevant portions.
Past recollection recorded:
- Limited to writings made or adopted by the witness when the matter was fresh.
- The witness cannot recall even after refreshing attempts.
- The writing’s contents may be read into evidence under a hearsay exception.
- The writing itself is not an exhibit unless offered by the adverse party.

Worked Example 1.1

A witness cannot remember the color of a car involved in an accident. The attorney shows the witness a police report written by another officer. The witness reviews the report, then testifies, “Now I remember—the car was blue.” The opposing attorney asks to see the report.

Answer:
This is proper. Any item may be used to refresh recollection, even if not created by the witness and even if it would be inadmissible hearsay if offered for its truth. The witness is testifying from present memory after reviewing the report, so this is present recollection refreshed. Under Rule 612, the opposing party has the right to inspect the report, cross-examine the witness about it, and, if fairness requires, introduce relevant portions into evidence (for example, to show inconsistencies or context).

Worked Example 1.2

A witness cannot recall the serial number of a stolen laptop. The attorney shows the witness a receipt the witness wrote at the time of purchase. The witness still cannot remember, even after reviewing the receipt. The attorney offers the receipt as evidence.

Answer:
The first step—trying to refresh recollection—failed, because the witness still cannot remember. The attorney may now turn to the past recollection recorded exception. If the witness testifies that she wrote the receipt at the time of purchase, that the serial number was accurate when she wrote it, and that she now cannot recall the serial number well enough to testify, the attorney may have the witness read the serial number from the receipt to the jury. The receipt itself is not admitted as an exhibit unless the opposing party requests it. If the attorney simply offers the receipt as an exhibit, and the hearsay exception is not properly invoked, the judge should exclude it.

Worked Example 1.3

During direct examination in a breach of contract case, a witness is asked about the exact quantity of goods delivered two years earlier. She testifies that she cannot remember the number. She explains that shortly after the delivery she received an email summarizing the shipment, read it carefully, and confirmed that it accurately reflected what had been delivered. The attorney shows her a printed copy of that email. After reading it, she still cannot remember the quantity without looking at the email.

The attorney now asks, “Was that email accurate when you read it?” The witness answers yes. The attorney then asks permission for the witness to read the quantity term from the email to the jury.

Answer:
This is an example of past recollection recorded, even though the email was written by someone else. The witness had personal knowledge at the time of the delivery and later adopted the email as accurate. The email was made and adopted when the matter was fresh, the witness attests that it was accurate, and her current memory is insufficient even after an attempt to refresh. The contents of the email may therefore be read into evidence under the past recollection recorded exception. The email itself is not admitted as an exhibit unless the adverse party chooses to introduce it.

Worked Example 1.4

A witness for the plaintiff kept a diary of daily observations of a factory’s emissions. Before trial, she carefully reviewed her diary entries to remind herself of what she had seen. On cross-examination, the defendant’s attorney learns that she used the diary to refresh her memory the night before trial and demands to see it. The plaintiff’s attorney objects, arguing that the diary was used only before testimony and is therefore off limits.

Answer:
Under Federal Rule 612, when a writing is used to refresh a witness’s memory before testifying, the court has discretion to order production “if justice so requires.” The defendant’s attorney does not have an automatic right to see the diary, but the judge may order production and allow inspection, cross-examination about the diary, and introduction of relevant portions if fairness demands it. The objection that the diary is categorically off limits simply because it was used before trial is incorrect.

Exam Warning

If a witness reads from a document while testifying, rather than testifying from memory after reviewing it, this is not present recollection refreshed but past recollection recorded. Only the latter allows the document to be read into evidence. In addition, for past recollection recorded, the writing itself is only admitted as an exhibit if the adverse party offers it. MBE questions often test this subtle distinction.

Additional pitfalls to watch for:

An answer choice stating that the document must be admitted into evidence before it can be used to refresh recollection is incorrect.
An answer choice stating that only documents written by the witness can be used to refresh recollection is incorrect.
An answer choice denying the inspection right of the opposing party when a writing is used on the stand is incorrect.

Revision Tip

Opposing counsel should always request to inspect any item used to refresh recollection and consider using it for cross-examination, impeachment, or—if fairness requires—to introduce relevant portions into evidence. On the MBE, spotting that a writing was used to refresh recollection should immediately trigger thoughts about these adversary rights and about whether the fact pattern actually involves present recollection refreshed or past recollection recorded.

Key Point Checklist

This article has covered the following key knowledge points:

A witness’s recollection may be refreshed when the witness has difficulty remembering while testifying, on either direct or cross-examination.
Any item may be used to refresh recollection, at the judge’s discretion, and the item does not need to be admissible or created by the witness.
In present recollection refreshed, the witness must testify from present memory after reviewing the item; the item itself does not automatically become evidence.
When a writing is used to refresh recollection while testifying, the opposing party has the right to inspect the writing, cross-examine the witness about it, and, if fairness requires, introduce relevant portions into evidence.
When a writing is used to refresh recollection before testifying, the court has discretion whether to order production and inspection, depending on the interests of justice.
If refreshing fails, the past recollection recorded (recorded recollection) hearsay exception may allow the contents of a qualifying writing to be read into evidence.
For past recollection recorded, the witness must have had personal knowledge, must have made or adopted the record when the matter was fresh, must affirm that it was accurate at the time, and must now lack sufficient recollection even after an attempt to refresh.
Under past recollection recorded, the writing itself is not admitted as an exhibit unless the adverse party requests it.
On the MBE, questions often turn on whether the witness is testifying from present memory (present recollection refreshed) or reading from a document (past recollection recorded), and on whether the adversary’s inspection rights under Rule 612 have been respected.

Key Terms and Concepts

Present Recollection Refreshed
Refreshing Recollection
Inspection Right
Past Recollection Recorded

Presentation of evidence - Refreshing recollection