How to deal with unexpected testimony on direct examination – Part 1 Refreshing Recollection

How to deal with unexpected testimony on direct examination -Part 1 – Refreshing Recollection

You call your last witness and things are going great. A verdict in your client’s favor will be soon to follow.  All you have to do is establish that there was moonlight. empty witness seat - unexpected testimony on direct.jpg

Counsel: Was there moonlight at the time you saw the accident?

Opposing Counsel: Objection.  Leading and lacks foundation.

Court:  Overruled.

Witness: It was the sun.

Counsel:  Are you sure?

Opposing Counsel: Objection.  Asked and answered and leading.

Court:  Sustained. 

The witness had previously said there was moonlight.  Invariably, your next question is “didn’t you testify that” and before you can finish the question your adversary stands up and objects.  The objection is sustained followed by deafening courtroom silence.  Before you say another word, you need to decide whether the witness:  (1) forgot that there was moonlight or; (2) believes it is the sun.

• Rule 612 •

If you decide your witness has made a mistake as a result of poor memory, you merely need to follow Rule 612 of the Federal Rules of Evidence and refresh the witness’s recollection in this order:

1.  Establish that the witness’s memory is exhausted on the specific issue or event.

You:  Do you remember whether or not there was moonlight?

2.  Establish that the witness’s memory may be refreshed by a specific document.

You: Would your memory be helped by reading the signed statement you gave to the police an hour after the accident?

You: Your Honor, if I may, I’d like to mark this as Exhibit X.  Showing opposing counsel Exhibit X.  

3.  Give the witness the document.

You: I’m giving you your signed statement.  Please read the third paragraph to yourself.

4.  Allow the witness to review the document.

You:  Have you had a chance to read the signed statement you gave to the police immediately following the accident?

5.  Ask the witness if her memory has been refreshed.

You: Is your memory refreshed regarding the accident?

6.  Take the document away from the witness.

You:  May I have Exhibit X, Witness.  Thank you. 

7.  Pause and ask your original question again.

You:  Now, Witness. Was there moonlight at the time of the accident?

Witness: YES!  Absolutely.  I’m sorry, I got nervous and forgot.  

Now that the witness has reviewed her statement, she apologizes to the jury for her mistake, smiles in embarrassment and is completely forgiven by the jury.  The moon is bright and your client’s case is back on track.  Don’t wait for re-direct/rehabilitation since a strong advocate would not ask a single question on cross. 

Part II next week.  Impeachment on Direct. 


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About the Editor
Hayes Hunt concentrates his practice in the representation of individuals, corporations and executives in a wide variety of federal and state criminal law and regulatory enforcement matters as well as complex civil litigation. Hayes is a partner in the firm's Commercial Litigation Department as well as its Criminal Defense and Governmental Investigations Group.
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