Conn. R. Evid. 6-9

As amended through April 25, 2023

Section 6-9 - Object or Writing Used To Refresh Memory

(a)While testifying. Any object or writing may be used by a witness to refresh the witness' memory while testifying. If, while a witness is testifying, an object or writing is used by the witness to refresh the witness' memory, any party may inspect the object or writing and cross-examine the witness on it. Any party may introduce the object or writing in evidence if it is otherwise admissible under the Code.

(b)Before testifying. If a witness, before testifying, uses an object or writing to refresh the witness' memory for the purpose of testifying, the object or writing need not be produced for inspection unless the court, in its discretion, so orders. Any party may introduce the object or writing in evidence if it is otherwise admissible under the Code.

Conn. Code. Evid. 6-9

Amended Dec. 14, 2017, to take effect 2/1/2018.

COMMENTARY

(a) While testifying.

Subsection (a) recognizes the practice of refreshing a witness' recollection while testifying. If, while testifying, a witness has difficulty recalling a fact or event the witness once perceived, the witness may be shown any object or writing, regardless of authorship, time of making or originality, to refresh the witness' memory. See, e.g., State v. Rado, 172 Conn. 74, 79, 372 A.2d 159 (1976), cert. denied, 430 U.S. 918, 97 S. Ct. 1335, 51 L. Ed. 2d 598 (1977); Henowitz v. Rockville Savings Bank, 118 Conn. 527, 529-30, 173 A. 221 (1934); Neff v. Neff, 96 Conn. 273, 278, 114 A. 126 (1921). The object or writing need not be admissible because the witness will testify from his or her refreshed recollection, not from the object or writing that was used to refresh his or her recollection. See Krupp v. Sataline, 151 Conn. 707, 708, 200 A.2d 475 (1964); Neff v. Neff, supra, 279; see also Doyle v. Kamm, 133 Conn. App. 25, 40, 35 A.3d 308 (2012) (item used to refresh witness' recollection need not be admissible).

The trial court is afforded discretion in controlling the admissibility of refreshed testimony. Specifically, the court is vested with the authority to determine whether the witness' recollection needs to be refreshed, whether the object or writing will refresh the witness' recollection and whether the witness' recollection has been refreshed. See, e.g., State v. Grimes, 154 Conn. 314, 322, 228 A.2d 141 (1966); see also Section 1-3(a).

Subsection (a) confers on any party the right to inspect the object or writing used to refresh the witness' recollection while testifying and to cross-examine the witness thereon. E.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Cole, 189 Conn. 518, 526, 457 A.2d 656 (1983); State v. Grimes, supra, 154 Conn. 323; Neff v. Neff, supra, 96 Conn. 280-81. This protection affords the party the opportunity to verify whether the witness' recollection genuinely has been refreshed and, if applicable, to shed light upon any inconsistencies between the writing and the refreshed testimony. See State v. Masse, 24 Conn. Sup. 45, 56, 186 A.2d 553 (1962); 1 C. McCormick, Evidence (7th Ed. 2013) § 9, pp. 54-56.

Any party may introduce into evidence the object or writing used to stimulate the witness' recollection if the object or writing is otherwise admissible under other provisions of the Code. Cf. Palmer v. Hartford Dredging Co., 73 Conn. 182, 187-88, 47 A. 125 (1900). Section 6-9 does not, however, create an independent exception to the hearsay rule or other exclusionary provisions in the Code. Cf. id. Contrast this rule with Section 8-3(6), which recognizes a past recollection recorded exception to the hearsay rule.

(b) Before testifying.

Unlike the situation contemplated in subsection (a), in which the witness uses an object or writing to refresh recollection while testifying, subsection (b) covers the situation in which the witness has used an object or writing before taking the stand to refresh his or her memory for the purpose of testifying at trial. In accordance with common law, subsection (b) establishes a presumption against production of the object or writing for inspection in this situation, but vests the court with discretion to order production. State v. Cosgrove, 181 Conn. 562, 588-89, 436 A.2d 33 (1980); State v. Watson, 165 Conn. 577, 593, 345 A.2d 532 (1973), cert. denied, 416 U.S. 960, 94 S. Ct. 1977, 40 L. Ed. 2d 311 (1974).

Assuming the court exercises its discretion in favor of production, subsection (b) does not contemplate production of all objects or writings used by a witness prior to testifying at trial. Rather, it contemplates production of only those objects or writings a witness uses before testifying to refresh the witness' memory of facts or events the witness previously perceived.

As with subsection (a), subsection (b) authorizes any party to introduce the object or writing in evidence if it is independently admissible under other provisions of the Code.

For purposes of Section 6-9, a writing may include, but is not limited to, communications recorded in any tangible form.