Sidebar: witness recollection refresh

📄 Sidebar: witness recollection refresh — Wednesday, August 16, 1995

Address:

C:\DEPT103\CRIMINAL\1995\AUG\16\SIDEBAR-WITNESS-RECOLLECTION-R.DOC

TRIAL

▲ Day 137 of 167

◀ Direct examination of Michele Kestler (part 1) Direct examination of Michele Kestler (part 2) ▶

Date: Wednesday, August 16, 1995 • Utterances: 12

A brief sidebar to resolve a defense objection over Peter Neufeld's use of handwritten notes (exhibit 1317, Matheson's notes) to refresh a witness's recollection. Darden objected that the notes weren't the witness's own and didn't clearly reference meetings. Ito overruled but asked Neufeld to highlight the relevant excerpts.

# 1 THE COURT:

All right. At sidebar with the court reporter, please.

# 2 (The following proceedings were held at the bench:)

# 3 THE COURT:

We are over at sidebar. This is marked exhibit 1317, bears discovery L505 and appears to be handwritten notes from Mr. Matheson. Mr. Darden.

# 4 MR. DARDEN:

Counsel is offering these notes to refresh the witness' recollection. First, they're not the witness' notes, and next, they don't seem to speak to a meeting. They seem to speak to telephone calls and the like. And so that would be improper, improper use of these documents. In addition, I've asked counsel what exhibits do you intend to introduce in front of this witness. This is his witness. I have the right to know what the exhibits are beforehand.

# 5 MR. NEUFELD:

No. 1, I don't intend to introduce this into evidence. I can use anything to refresh the witness' recollection. I don't intend to introduce this at all. And the handwritten notes of Mr. Matheson reflect, for instance, not the phone call, but on 6-15, there's a meeting.

# 6 THE COURT:

This is page L505.

# 7 MR. NEUFELD:

L505--thank you--to discuss certain aspects of this case. That's a meeting. On page L505, on 6-16-95, there's a meeting to discuss case security.

# 8 THE COURT:

Anything else?

# 9 MR. NEUFELD:

That's all it is. Just to show information--

# 10 MR. DARDEN:

I lodged an objection. If counsel wants to refresh the witness' recollection with that document, it would be nice if he directed the witness' attention to those particular areas and my attention as well, then I don't have to object.

# 11 THE COURT:

All right. Objection overruled. But why don't you just highlight those excerpts.

# 12 (The following proceedings were held in open court:)

Temperature

procedural

Key Quotes (3)

Christopher Darden

First, they're not the witness' notes, and next, they don't seem to speak to a meeting. They seem to speak to telephone calls and the like. And so that would be improper, improper use of these documents.

Darden's two-pronged objection to using another person's notes for recollection refreshment — a legitimate evidentiary challenge.

Christopher Darden

If counsel wants to refresh the witness' recollection with that document, it would be nice if he directed the witness' attention to those particular areas and my attention as well, then I don't have to object.

Darden essentially resolves his own objection by signaling what procedural accommodation would satisfy him.

Peter Neufeld

I can use anything to refresh the witness' recollection. I don't intend to introduce this at all.

Neufeld correctly states the broad rule that any document may be used to refresh recollection without being admitted into evidence.

Evidence (1)

1317 (discovery L505)

Handwritten notes attributed to Mr. Matheson, containing references to meetings on 6-15 and 6-16-95 regarding case aspects and case security

used to refresh witness recollection, not introduced into evidence

Notable Exchanges (1)

Christopher Darden•Peter Neufeld•Lance A. Ito

Darden objects on two grounds — wrong author, wrong content type — Neufeld rebuts on the law and points to specific meeting entries; Ito overrules but asks Neufeld to highlight the relevant passages as a practical compromise.

strategic

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 7342 • 12 utterances

Criminal Trial

Department 103