Where a witness on the stand has forgotten certain facts, that witness’s memory may be refreshed by showing the witness anything that the witness states may refresh his or her recollection. This may be a document in which some of the facts have been memorialized. In such case, an adverse party is entitled to have the writing or object produced at the trial.30 Similarly, if a witness used a writing or object in advance of trial to refresh his or her memory for the purpose of testifying, an adverse party is entitled to have the writing or object produced at trial, if practicable, if the court determines in its discretion that the interests of justice require it.31

If, upon review, the document or object causes the witness to recall certain facts, the witness may then testify as to those recalled facts.32 It is the testimony of the witness, and not the document or object used to refresh the recollection of the witness, that constitutes the evidence of the facts recalled.33 The document or object is not itself admissible by the party calling the witness absent some independent foundation.34

Although nearly any item may be used to refresh a witness’s memory, a prosecutor may not continue in a case when the introduction of that evidence would force her to abandon his or her role as prosecutor and become a witness. Because a jury must base its verdict on the strength of the evidence free from the influence of the State’s official position and superior access to the facts in forming its opinion,” courts recognize the impropriety of allowing prosecutors to personally vouch for the veracity of witness testimony or the reliability of other evidence. Thus, where a prosecutor sought to use his personal notes to refresh the recollection of a witness and by the use of those notes impeach that witness’s earlier testimony, the prosecutor improperly vouches for the notes’ reliability.34.1

A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness about it and to introduce  evidence those portions which relate to the testimony of the witness. If production of the writing or object at the trial is impracticable, the court may order it made available for inspection. If it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court must examine the writing or object in camera, redact any portions not so related and order delivery of the remainder to the party entitled to it. Any portion withheld over objection must be preserved and made available to an appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection or delivered, the court may make any order justice requires. In criminal cases, if the prosecution chooses not to comply, the order must be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistria1.35

30. D.R.E. 612(a). This rule is distinguished from the exception to the hearsay rule for past recollection recorded evidence. See § 13:4.

31. D.R.E. 612(b).

32. Cannon v. Kinney, 3 Del. 317, 3 Harr. 317, 319 (Del. Super. 1841).

33. Terry v. American Fruit Growers, Inc., 139 A. 259, 263 (Del. Super. 1927).

34. See Katz v. Exclusive Auto Leasing, Inc., 282 A.2d 866, 869 (Del. Super. 1971); Redden v. Spruance, 4 Del. 265, 4 Harr. 265, 268-69 (Del. Err. & App. 1845); Bougouneau v. Causey, C.A. No. 89C-JN-23, slip op. at 3, Graves, J. (Del. Super. June 13, 2991). See D.R.E. 803(5) for an example of an independent foundation.

34.1. Douglas v. State, 879 A.2d 594, 598 (Del. 2005).

35. D.R.E. 612(c).

© 2010  David L. Finger