Sidebar: refreshing recollection

📄 Sidebar: refreshing recollection — Thursday, February 9, 1995

Address:

C:\DEPT103\CRIMINAL\1995\FEB\9\SIDEBAR-REFRESHING-RECOLLECTIO.DOC

TRIAL

▲ Day 16 of 167

◀ Cross-examination of Robert Riske (part 2) Cross-examination of Robert Riske (part 3) ▶

Date: Thursday, February 9, 1995 • Utterances: 11

The defense attempted to use a crime scene log to refresh a witness's recollection about when certain personnel arrived at the scene. Clark objected that the witness lacked foundational knowledge — he never knew the arrival times to begin with, so there was no memory to refresh, only hearsay. Ito overruled the objection, allowing Cochran to proceed after laying foundation.

# 1 THE COURT:

ALL RIGHT. LET ME SEE YOU AT THE SIDE BAR.

# 2 (THE FOLLOWING PROCEEDINGS WERE HELD AT THE BENCH:)

# 3 THE COURT:

ALL RIGHT. WE ARE OVER AT SIDE BAR. WHAT IS YOUR OBJECTION?

# 4 MS. CLARK:

THE OBJECTION IS THAT THIS WITNESS -- THERE ARE SO MANY FACTS NOT IN EVIDENCE. THAT WITNESS NEVER HAD KNOWLEDGE OF WHEN THEY GOT THERE, SAW THEM WHEN THEY GOT THERE. THAT IS FINE TO REFRESH RECOLLECTION IF YOU CAN SHOW THAT THERE WAS A MEMORY TO BE REFRESHED, BECAUSE THIS WITNESS DOESN'T HAVE A MEMORY BECAUSE HE DOESN'T KNOW, SO WHAT YOU ARE DOING IS READING HEARSAY.

# 5 MR. COCHRAN:

SHE IS JUST SPECULATING. HE KNOWS WHEN THEY CAME.

# 6 MS. CLARK:

HOW ABOUT ASKING A FEW FOUNDATIONAL QUESTIONS AND LET'S SEE.

# 7 MR. COCHRAN:

I WILL DO THAT. I'M GOING TO DO THAT.

# 8 MS. CLARK:

MR. COCHRAN IS ATTEMPTING TO PUT THE CART BEFORE THE HORSE. YOU DON'T REFRESH THE RECOLLECTION BEFORE YOU SHOW THEM THAT THERE IS --

KEY QUOTE

# 9 THE COURT:

YOU CAN SHOW THEM ANYTHING IN THE WORLD TO REFRESH RECOLLECTION, MISS CLARK. HE CAN LOOK AT IT AND SAY -- HE HAS ALREADY SAID I DIDN'T FILL THIS OUT, SO I DON'T KNOW AT THIS TIME IF IT IS ACCURATE, SO WE DON'T KNOW WHAT HE IS GOING TO SAY.

KEY QUOTE

# 10 MS. CLARK:

HE DIDN'T -- HE SAID HE DIDN'T KNOW, THOUGH, YOUR HONOR. IT IS DIFFERENT. IF A WITNESS SAYS I DON'T REMEMBER, I CAN'T RECALL, THAT IS ONE THING. THEN YOU CAN ASK TO REFRESH THEIR RECOLLECTION. IF THEY SAY I DON'T KNOW, I WASN'T THERE WHEN THEY GOT THERE, I WAS NOT IN A POSITION TO SEE, THEN WHAT ARE YOU REFRESHING? THERE IS NOTHING TO REFRESH.

# 11 THE COURT:

THE OBJECTION IS OVERRULED.

Temperature

tense

Key Quotes (3)

Marcia Clark

IF A WITNESS SAYS I DON'T REMEMBER, I CAN'T RECALL, THAT IS ONE THING. THEN YOU CAN ASK TO REFRESH THEIR RECOLLECTION. IF THEY SAY I DON'T KNOW, I WASN'T THERE WHEN THEY GOT THERE, I WAS NOT IN A POSITION TO SEE, THEN WHAT ARE YOU REFRESHING? THERE IS NOTHING TO REFRESH.

Articulates the core legal distinction between faulty memory (refreshable) and lack of personal knowledge (not refreshable) — a substantive evidentiary point.

Marcia Clark

MR. COCHRAN IS ATTEMPTING TO PUT THE CART BEFORE THE HORSE. YOU DON'T REFRESH THE RECOLLECTION BEFORE YOU SHOW THEM THAT THERE IS --

Clark argues Cochran skipped the foundational step of establishing the witness had personal knowledge before using the document.

Lance A. Ito

YOU CAN SHOW THEM ANYTHING IN THE WORLD TO REFRESH RECOLLECTION, MISS CLARK.

Judge signals a broad view of the refresh-recollection doctrine, foreshadowing his overruling of the objection.

Evidence (1)

Informal

Crime scene log — a document the witness did not fill out himself, used by Cochran to attempt to refresh recollection about arrival times at the scene

discussed, used to refresh recollection

Notable Exchanges (2)

Marcia Clark•Johnnie Cochran

Clark challenges Cochran's method; Cochran concedes he will lay foundation first, defusing the immediate procedural dispute.

strategic

Marcia Clark•Lance A. Ito

Clark presses the legal distinction between 'I don't remember' and 'I don't know'; Ito disagrees and overrules.

tense

Objections

1 objections (0 sustained, 1 overruled)

Proceeding 4782 • 11 utterances

Criminal Trial

Department 103