When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence. If it is claimed that the writing contains matters not related to the subject matter of the testimony, the judge shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objection shall be preserved and made available to the appellate court in the event of an appeal. If a writing or other item is not produced or delivered pursuant to order under this section, the testimony of the witness concerning those matters shall be stricken.
Fla. Stat. § 90.613 — Refreshing the memory of a witness
"Present Recollection Refreshed": This rule allows a lawyer to help a witness who is on the stand and has a temporary lapse in memory. The lawyer can show the witness an item—a document, a photo, or any other object—to "refresh" their memory. After looking at the item, the witness must then put it aside and testify from their own now-revived memory.
Important Distinction: The item used to refresh memory is **not** evidence itself (at least not for the party using it). The evidence is the witness's live testimony. This is different from the "Past Recollection Recorded" hearsay exception (§ 90.803(5)), where a document itself is read into evidence because the witness *cannot* recall the information.
Rights of the Opposing Party: When this procedure is used, the opposing lawyer has several important rights to ensure fairness:
- Produce and Inspect: They have the right to see the item that was used to refresh the witness's memory.
- Cross-Examine: They can question the witness about the item, trying to show that the witness is just repeating what the document says rather than testifying from their own memory.
- Introduce into Evidence: The opposing party has the right to show the item to the jury, usually to argue that it improperly influenced the witness.
If the item contains irrelevant information, the judge can review it privately (in camera) and remove those parts before it is shown to the opposing counsel or the jury.
