“whether defendant's inability to make the inquiry created a substantial danger of
prejudice by depriving him of the ability to test the truth of the witness’ direct
testimony.” State v. Ray, 336 N.C. 463, 471 (1994)(internal citations and quotations
omitted). The witness may not be permitted to “disclose part of the facts and withhold
the rest.” Perry v. State, 210 N.C. 796, 798 (1936). If the privilege is invoke regarding
questions that relate to the direct testimony, the trial judge must either require the witness
to answer the questions or strike all or part of the testimony given on direct examination.
State v. Ray, 336 N.C. 463 (1994).
III. Specific Applications
A. Refreshing Recollection vs. Past Recollection Recorded
1. Refreshing Recollection – A technique
Refreshing recollection, a technique for prompting a witness’ memory, varies
substantially from past recollection recorded, an exception to the hearsay rule. Though
completely different, the two are often confused; this is probably because when efforts to
refresh fail, counsel will often seek to introduce the refreshing device through the past
recollection recorded exception to the hearsay rule.
The practice of refreshing recollection emerged at common law as a method for
prompting a forgetful witness’ memory. The foundation required for refreshing
recollection is simply that the witness has a lapse in memory that might be revived by
consulting some writing or object. If a witness is questioned about a matter that the
witness is unable to recall, the practice allows counsel to show the witness a writing or
object that might stimulate the memory. The witness is allowed to review the writing or
object in order to refresh memory. The object or writing is then taken from the witness
and the witness is again asked the question. If the witness’ memory has been refreshed,
the witness’ testimony, not the writing or object, is the evidence. The trial court, in its
discretion, may allow the witness to reconsult the memory device, but when the witness’
testimony is “clearly a mere recitation of the refreshing memorandum,” it is not
admissible. See State v. Smith, 291 N.C. 505, 518 (1977)(emphasis in original).
Counsel is generally allowed to use leading questions to lay the foundation for
refreshing recollection. Thus, for example, counsel may ask, “If I showed you X, would
it help to refresh your memory?” and “Having shown you X, is your memory now
refreshed?” even though both questions are leading.
Rule 612(a) of the Rules of Evidence requires that an adverse party is entitled to
have “the writing or object [used to refresh memory] produced at the trial, hearing,
or deposition in which the witness is testifying.” If the writing or object is used to
refresh the witness’ memory before the witness testifies and “if the court in its
discretion determines that the interests of justice so require, [then] an adverse party
is entitled to have those portions of any writing or of the object which relate to the
testimony produced, if practicable, at the trial, hearing, or deposition in which the