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The Recollection of a Percipient Witness

Today’s blog topic will be on witness recollection. I do exclusively personal injury cases so I will speak about witness recollection in that context. But you should keep in mind that this has a broader application than just in personal injury cases.

I have recently been involved in a case where there is only one witness to the event, a pedestrian/motor vehicle accident. That witness is what we would call a percipient witness; she actually perceived the event as it was unfolding. As you may expect, such a witness is often the most important person on the crucial issue, the threshold issue, of liability. Did this ever prove true. When we were in court on a Pre-trial Motion, the other side tried to say to the judge that there were three witnesses who could testify as to the speed of the defendant’s vehicle. I quickly pointed out that they were not percipient witnesses, none of them. They did not perceive the event. The only percipient witness is in fact quite favorable to my side. You can be sure I made a lot of that in our Motion hearing.

This percipient witness, whose deposition had been taken before the Motion hearing in court, is crucial for another reason. She is not connected to the plaintiff or the defendant. Of course, this kind of seeming neutrality gives her a larger significance.

At her deposition, she, for whatever reason, said she did not remember the accident. However, when I had her on cross-examination during the deposition, she did admit that it was such a traumatic event, a pedestrian hurtling over a car’s hood, that she definitely remembered the accident. Perhaps this came about because I refreshed her recollection with the witness statement that she had given much closer to the time of the accident. Yes, after reviewing the witness statement and thinking about the significance of seeing a pedestrian go on the hood of a car, she said she did have a memory. She went on to testify to a few very important facts and testified quite favorably.

Because this witness’ recollection was refreshed, she was not testifying from the written statement. The writing was no longer relevant or material. It is the refreshed witness’ recollection that is material. So, as has been said by the highest court of Massachusetts, when a witness is unable to testify as to facts of which he or she apparently has knowledge, his or her recollection may be refreshed by showing him/her a writing or an object. In fact, it could be anything: it could be a banana or a box. It need not be a writing. The significant thing from the standpoint of evidentiary principles is that the testimony that the witness then gives is the product of a refreshed recollection. See Com. v. Hoffer, 375 Mass. 538, 541(1978) as cited in Paul J. Liacos, Handbook of Massachusetts Evidence, s. 6.19, Present Recollection Revived. (I was taught that the term is present recollection refreshed but it need not matter; it’s the concept.) It is not the statement, but rather the memory of the witness, that counts, even though the memory was stimulated by the object or the writing.

I expect that that refreshed memory will be very helpful to my case. Again, it comes from the one and only percipient witness. If she didn’t have a recollection – if the document didn’t refresh her memory – I would have attempted to have the writing introduced under the doctrine of past recollection recorded. There, it is the statement itself that goes before the jury. But, as they say, we didn’t have to go there.

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