Podcast - Refresh vs. Impeach: Know the Difference
In this episode of "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small focuses on the distinction between refreshing and impeaching. Mr. Small covers three different approaches to handling problematic answers: refreshing a witness' memory, using past recollection recorded and impeachment by a prior inconsistent statement. The episode also outlines the steps involved in refreshing a witness' memory and gives advice on how to handle mistakes made by witnesses.
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Mr. Small is also the author of the new American Bar Association (ABA) book, Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and What They Can Teach Trial Lawyers.
Dan Small: Let's be honest, witnesses give bad answers all the time. They forget things. They make mistakes. They lie. Sometimes they can be impeached on cross-examination after an inconsistent statement or a problematic answer, but lawyers too often confuse or conflate the different approaches to different types of bad answers. A witness' innocent mistake can be as harmful to your case as a deliberately inconsistent statement, but they aren't the same thing. To begin, there are three distinct evidentiary concepts that you need to keep straight.
The first is refreshing a witness' memory. People often forget even the most basic things under the pressure of a courtroom setting. I had a witness once forget his wife's name and more. If a witness says she can't remember, the lawyer is permitted under Federal Rule of Evidence 612 to show her something to refresh her memory.
The second is past recollection recorded. If the witness still can't remember, even after she's been shown something, the lawyer may be permitted under Federal Rule of Evidence 803(5) to read a past statement verbatim to the jury.
The third is impeachment by a prior inconsistent statement. When the witness says something different, the lawyer is permitted to confront her with a prior contradictory statement. Under Federal Rule of Evidence 801(d)(1), the prior statement can even be admitted for its truth if it's made under oath.
In general, on direct examination, you want to refresh the witness' memory since you're working with a friendly witness. On the other hand, on cross-examination, you want to impeach since you're working with an unfriendly witness. One word of caution, though. If the witness doesn't say the magic words, "I don't remember," you can't help them refresh their memory. Prepare your witness to understand that and to be comfortable saying, "I don't recall" or "I don't remember." If the witness says the light was green, you can't show her a prior statement to help her remember. If she hasn't said she can't remember, you may have to impeach.
It's also important to avoid conflating refreshing a witness' memory with impeaching someone with a prior inconsistent statement. Don't try to impeach someone by confronting her with a prior inconsistent statement and asking her whether it refreshes her memory. If you haven't established a lack of memory, there is nothing to refresh, and the judge may become confused and sustain an objection to an otherwise valid line of questioning.
The process for refreshing memory is relatively simple. Essentially, there are five steps to refreshing memory.
Step one, confirm lack of memory. This first step is to establish that the witness doesn't remember. If the witness answers the question with a simple "I don't recall," that's great, but it's not always that easy for a witness to say those terrible words in a room full of strangers staring at them and judging them. You may need to prod her. "Are you sure?" "Is your memory clear on that?"
Number two, ask the witness what might help. This second step is to have the witness confirm that there is something out there that might help her memory. Ask it directly. "Is there something that might help you remember?" If that doesn't work, you may need to lead just a little bit. "Would it help you to see the report that you signed on the day of the accident?" Now we're getting there.
Number three, show the witness the document. Go through the normal process of putting the document in front of the witness. Mark what you intend to show the witness. Show it to opposing counsel or tell them what it is. Ask to approach the witness or acknowledge the authority of the court. Show it to the witness and ask her to read it silently to herself. Ask her to look up or otherwise let you know when she's done.
Number four, take the document back. This is a step people tend to forget. Once the witness is done reading the document, either take it back or have her physically turn it over to clearly demonstrate she's no longer relying on it. Now she's relying on her memory, which hopefully has been refreshed by the document.
Number five, ask the witness the question. Ask the witness if her memory is now refreshed. If so, ask the original question again. If she still doesn't remember, ask to read it to the jury as past recollection recorded.
What if you get a bad answer from a witness on direct that's just a screw up, not the product of a failure of memory? If it's a minor misstatement on an uncontroversial matter, you can usually just lead the witness to the right answer. "Madam Witness, you said March 2016. Are you sure that it was 2016? Or did you mean to say 2017?" You can also try to frame the bad answer as a misunderstanding of a poorly worded question. Whenever you can, take the blame on yourself, not on the witness. Deflect it from the witness. "I'm sorry, Madam Witness, but I may have asked that badly. Let me rephrase." Sometimes, though, you may be stuck. As a general rule, you want to avoid impeaching a favorable witness on direct examination. It can be confusing to a jury and set the wrong tone. To see a lawyer impeaching or contradicting their own witness can be difficult for a jury, but you may need to correct the record, and you may have to make a difficult judgment call as to what to do.
The way to avoid this, of course, is to prepare your witnesses extensively and properly. Don't just go over the expected testimony. Prepare the witness for the likelihood that the witness will forget or they'll get something wrong. It happens all the time. And explain how you'll handle it.
I tell every witness that I can't predict very much of the future, but one thing I can predict is that at some point they'll make a mistake, and that's OK. That's OK. It's an important message to make sure the witness understands that that's OK. The jury doesn't want robots talking to them. They want real people who are not perfect and who may make mistakes. If you make a mistake, let's just stop and fix it. We all forget things all the time. Don't panic. Just prepare. Prepare your witness and yourself to deal with problems effectively. That starts with knowing the difference between refreshing and impeaching.