Posted on March 16, 2024

Refreshing A Witness’s Recollection In An Illinois Divorce Trial

Divorce trials are high-pressure environments. No amount of practice will guarantee that a witness will say exactly the right thing. The court system is conscious of the frailty of human memory and allows attorneys to refresh their witness’s recollection with a document if necessary.

Refreshing A Memory In An Illinois Divorce Court?

It may sound bizarre, but a lawyer can stop a witness and politely ask, “Are you sure about that? Would you like to refresh your recollection?,” and then hand the witness a document stating what the lawyer would like the witness to say.  

“It is well settled in Illinois that a witness may refresh and assist his memory by the use of a written memorandum when he is unable to remember relevant facts.” People v. Van Dyk, 352 NE 2d 327 – Ill: Appellate Court, 1st Dist. 1976

A lawyer can simply ask if the witness needs something to refresh their memory.

“In the interrogation of a witness, counsel may have the witness refresh his memory by referring to a memorandum written by the witness or another person, by looking at a tangible object, or by responding to leading questions where such questions are proper.” People v. Olson, 375 NE 2d 533 – Ill: Appellate Court, 4th Dist. 1978

Whatever is being used to refresh the witness’s memory must be shown to the other side.

“The item used to refresh the witness’ recollection must be furnished to opposing counsel on demand.” People v. Olson, 375 NE 2d 533 – Ill: Appellate Court, 4th Dist. 1978

“If a witness uses a writing to refresh memory for the purpose of testifying, either-

  • while testifying, or
  • before testifying, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence for the purpose of impeachment those portions which relate to the testimony of the witness.” Ill. R. Evid. 612

Maybe the opposing counsel can use that document against the witness to prove that they have been coached. Well, the witness wasn’t coached very well if they need their memory refreshed.

Refreshing a recollection is not quite that easy. The witness must first testify that they have forgotten and cannot remember.

“However, it is fundamental that a witness’ memory can be refreshed only after it has been established that the witness has no memory concerning the facts in question. If a witness has testified that his memory is exhausted, a written memorandum may be used to refresh and assist his memory, but the manner and mode of refreshing a witness’ memory rests within the discretion of the trial court.” People v. Shatner, 673 NE 2d 258 – Ill: Supreme Court 1996

This may sound crazy but what’s the difference between refreshing a witness’s recollection with an in-court document and prepping a witness in advance of court with the same document?

“We see no substantial or logical difference between that situation, and the one where the witness examines the refreshing document prior to stepping into the courtroom. The opportunity for mischief or error is equally present regardless of where or when the inspection of the documents occurs.” The People v. Scott, 193 NE 2d 814 – Ill: Supreme Court 1963

The witness does not actually read off the document (in theory). The witness is supposed to suddenly have the memory of what is written come back to them and then testify right after.

“[A]fter inspecting [the document], the witness can speak to the facts from his own recollection.” People v. Van Dyk, 352 NE 2d 327 – Ill: Appellate Court, 1st Dist. 1976

Again, what is the difference between doing this in court and doing it moments before in the courtroom hallway?

Why would you want to refresh a witness’s memory with a document instead of just submitting the document into evidence as an exhibit?

Probably because you could not get the court to accept the document as evidence because the document is hearsay.

“”Hearsay” is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Rule 801 – Definitions, Ill. R. Evid. 801

“Hearsay is not admissible except as provided by these rules, by other rules prescribed by the Supreme Court, or by statute as provided in Rule 101.” Rule 802 – Hearsay Rule, Ill. R. Evid. 802

Testimony that is, allegedly, a recollection of what is contained in the document is NOT hearsay.

People always think that a trial is like a homework assignment where you try to give the judge as much paperwork as possible. In the eyes of the court, testimony is just as good evidence as any document (and probably more persuasive).

“[T]estimony is evidence.” People ex rel. Hartigan v. ILL. COMMERCE COM’N, 592 NE 2d 1066 – Ill: Supreme Court 1992

Should an Illinois divorce judge decide an exhibit is inadmissible, every potential exhibit can be used as tool to refresh the witness’s memory who was supposed to authenticate that exhibit.

A Recorded Recollection In An Illinois Divorce Trial.

Most potential exhibits which could refresh a witness’s memory are the witness’s own statements, notes, etc. If the witness cannot remember even after reviewing the document, you can get the document into evidence as an exhibit under the recorded recollection exception.

In Illinois, evidence may be admitted under the doctrine of past recollection recorded where: (1) the witness had firsthand knowledge of the recorded event; (2) the written statement was made at or near the time of the event and while the witness had a clear and accurate memory of it; (3) the witness lacks present recollection of the event; and (4) the witness can vouch for the accuracy of the written statement.” Roeseke v. Pryor, 504 NE 2d 927 – Ill: Appellate Court, 1st Dist. 1987

Day-to-day reports can easily come into evidence as recorded recollections. Who remembers what they wrote a year ago? (I write all these articles and even I forget sometimes).

Like all evidence, a foundation must be laid first to establish that the evidence is what you say it is…even if you do not remember making it.

“[A] foundation for past recollection recorded must also be laid by having the witness testify that he has no independent recollection, that he recorded the facts at the time of the occurrence or soon afterward and that his report was accurate and true when made.” Rigor v. Howard Liquors, Inc., 295 NE 2d 491 – Ill: Appellate Court, 1st Dist. 1973

Prior Statements Used For Impeachment In An Illinois Divorce Trial.

I would be remiss if I did not mention the mid-testimony document that attacks a witness rather than rescues the witness: impeaching via prior inconsistent statements.

Not all prior statements of a witness need to pass these strange memory tests to be brought inadvertently or explicitly to the court’s attention. Documents may be introduced mid-testimony to establish that the witness is not credible.

“The credibility of a witness may be attacked by any party, including the party calling the witness.” Ill. Sup. Ct. R. 238

“Under Rule 238(a), the credibility of a witness can be attacked by any party, including the party calling the witness. Such an attack may be accomplished by impeaching the witness with evidence of a prior inconsistent statement.” People v. Cruz, 643 NE 2d 636 – Ill: Supreme Court 1994

“Evidence of prior inconsistent statements by a witness is admissible to impeach his credibility.” The People v. Moses, 142 NE 2d 1 – Ill: Supreme Court 1957

If there is a report, note or document prepared by the witness that contradicts the witness’s in-court testimony or just the witness’s general capacity to tell the truth, that document can be introduced as evidence.

However, the introduced document is only evidence that the witness is a liar. The document should not be deemed evidence for any other purpose.

“[I]t must be borne in mind that the purpose of such impeachment evidence is to destroy the credibility of the witness and not to establish the truth of the impeaching material.” People v. Cruz, 643 NE 2d 636 – Ill: Supreme Court 1994

If the witness is a third party, they are allowed to review the allegedly inconsistent statement in advance and, possibly, explain it away.

“Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is first afforded an opportunity to explain or deny the same and the opposing party is afforded an opportunity to interrogate the witness thereon, or the interests of justice otherwise require” Ill. R. Evid. 613(b)

Parties to a divorce do not get the courtesy of a “heads up” that they will be called a liar in open court.

“This provision does not apply to statements of a party-opponent as defined in Rule 801(d)(2).” Ill. R. Evid. 613

Trials are tricky. You need to get your evidence before the court to get the result you want. If you do not know how to get your evidence in, you will lose. If your lawyer does not know how to get evidence in, you will lose and be a spectator to your own loss.

Do not lose your own divorce trial. Contact my Chicago, Illinois family law firm today to speak with an experienced Illinois divorce attorney.

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Russell Knight

Russell D. Knight has been practicing family law as a Chicago divorce lawyer since 2006. Russell D. Knight amicably resolves tough cases while remaining a strong advocate for his client’s interests.

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