When a witness uses a writing to refresh memory, what must be shown to opposing counsel?

When a witness uses a writing to refresh memory, what must be shown to opposing counsel?

• A. A copy must be shown only to the court reporter.
• B. The witness’s memory is refreshed and the writing is not shown to anyone.
• C. A clean and unmarked copy must be shown to opposing counsel.
• D. The writing may be shown to opposing counsel only after the witness testifies.

Answer: (C)

When a witness uses a writing to refresh memory, fairness requires that the writing be available to the opposing party. Specifically, the adverse party is entitled to see a clean, unmarked copy of the writing used to refresh memory. This lets the other side inspect exactly what the witness used, so they can cross-examine effectively and assess whether the memory refresh was legitimate. The copy shown to the opposing counsel should be a clean version, without the witness’s later notes or markings, to avoid revealing extra material beyond what was used to jog memory. This requirement is not about keeping the writing hidden or about only showing it to a court reporter or after the witness finishes testifying. It’s about timely access for the opposing counsel to examine the aid used to refresh memory, ensuring a fair opportunity to challenge or corroborate the memory refresh.

When a witness uses a writing to refresh memory, fairness requires that the writing be available to the opposing party. Specifically, the adverse party is entitled to see a clean, unmarked copy of the writing used to refresh memory. This lets the other side inspect exactly what the witness used, so they can cross-examine effectively and assess whether the memory refresh was legitimate. The copy shown to the opposing counsel should be a clean version, without the witness’s later notes or markings, to avoid revealing extra material beyond what was used to jog memory.

This requirement is not about keeping the writing hidden or about only showing it to a court reporter or after the witness finishes testifying. It’s about timely access for the opposing counsel to examine the aid used to refresh memory, ensuring a fair opportunity to challenge or corroborate the memory refresh.