Keep witness memory separate from exhibits
For witness interviewers and litigation teams preparing an accurate interview record.
When a witness reads an exhibit, how do you distinguish refreshed memory from information they can only read on the page?
Record the account before showing the exhibit. Identify the exact item and then ask the witness to describe, in their own words, what they now remember. A detail available only from the exhibit belongs in a separate column.
Preserve the first account
Begin with a neutral invitation to describe the event. Record the witness’s words about timing, sequence and uncertainty. Ask whether they have already reviewed notes, photographs or messages and record which ones. An initial interview conducted after prior review cannot honestly be described as wholly unaided.
Before showing a new item, identify its date, author if known, version, page and how it was obtained. Keep the original unmarked. Show only material authorized for the interview and keep a record of the order in which items were shown.
Ask what changed after review
Set the item aside and ask an open question such as, “What do you remember now?” Record whether the person recalls the event independently, recognizes a detail without further memory or can only report what the item says. Preserve contradictions, both versions of the account and the witness’s explanation.
Use three headings in the notes. Under “Before viewing,” record what the witness recalled first. Under “Item shown,” record the precise exhibit and page. Under “After viewing,” note new recollection, unchanged uncertainty or a detail known solely from the exhibit. A written record can itself be inaccurate.
Flag uses of a writing for counsel
Federal Evidence Rule 612 gives an adverse party specified rights when a writing refreshes memory during testimony and, for pretestimony use, when the court finds justice requires those rights. The rule addresses inspection, questioning and related portions of the writing subject to its terms. Record the circumstances for counsel to assess. Treat access and disclosure decisions under the applicable rules.
Worked example
Illustrative interview note. Before viewing, a receptionist remembers an afternoon call but cannot recall the time. A call log shows 3:14. After reviewing the entry they still remember only that it was afternoon. Record 3:14 as the log’s entry and preserve the witness’s uncertainty. The note should allow a later reader to tell exactly where that minute came from.
Primary sources
Related work at Agentic Attorney
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