(Code 1981, §24-6-612, enacted by Ga. L. 2011, p. 99, § 2/HB 24; Ga. L. 2013, p. 524, § 1-4/HB 78.)
The 2013 amendment, effective July 1, 2013, substituted "testifying" for "the trial" in the second sentence of subsection (b).
Cross references.- Writing used to refresh a witness's memory, Fed. R. Evid. 612.
Law reviews.- For article advocating admissibility of business entries, see 14 Ga. B.J. 7 (1951). For article analyzing Georgia business entries provisions, see 4 Mercer L. Rev. 313 (1953). For article, "The Need For a Special Exception to the Hearsay Rule in Child Sexual Abuse Cases," see 21 Ga. St. B.J. 50 (1984). For note, "Hypnosis in Court: A Memory Aid for Witnesses," see 1 Ga. L. Rev. 268 (1967). For comment on Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959), see 22 Ga. B.J. 380 (1960).
JUDICIAL DECISIONSANALYSIS
General Consideration
Editor's notes.
- In light of the similarity of the statutory provisions, decisions under former Code 1868, § 3810, former Code 1873, § 3866, former Code 1882, § 3866, former Civil Code 1895, § 5284, former Penal Code 1895, § 1020, former Civil Code 1910, § 5873, former Penal Code 1910, § 1046, former Code 1933, § 38-1707, and former O.C.G.A. § 24-9-69 are included in the annotations for this Code section.
Obvious purpose of the former statute was to allow proper and legitimate aid to a witness which will enable the witness to testify fully as to the witness's knowledge. Whitaker v. State, 199 Ga. 344, 34 S.E.2d 499 (1945) (decided under former Code 1933, § 38-1707).
Rule stated in Weldon v. State, 21 Ga. App. 330, 94 S.E. 326 (1917) (decided under former Civil Code 1910, § 5873).
Illegal evidence must not be allowed to reach the jury on the pretense that the evidence was offered in compliance with the former statute. Whitaker v. State, 199 Ga. 344, 34 S.E.2d 499 (1945) (decided under former Code 1933, § 38-1707); Hull v. State, 265 Ga. 757, 462 S.E.2d 596 (1995);(decided under former O.C.G.A. § 24-9-69).
Past and present recollections distinguished.
- For discussion of the distinction between cases where the witness finally testifies to a "past" recollection, and where the witness finally testifies to a "present" recollection, see Stansall v. Columbian Nat'l Life Ins. Co., 32 Ga. App. 87, 122 S.E. 733, cert. denied, 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5873).
Testimony must be based on memory and not on memorandum.
- Witness may, for the purpose of refreshing the witness's recollection, use any memoranda useful for that purpose; and the witness's testimony will not be objectionable if it is not dependent upon the memoranda, but is based upon the memory of the witness, even though the memoranda may be necessary in order to refresh the witness's recollection. Southern Ry. v. Cowan, 52 Ga. App. 360, 183 S.E. 331 (1936) (decided under former Code 1933, § 38-1707).
Independent memory of contents not required.
- Witness may testify from the witness's memory refreshed by a writing that the witness made, though the witness has no independent memory of the writing's contents. Bridges v. Mutual Benefit Health & Accident Ass'n, 49 Ga. App. 552, 176 S.E. 543 (1934) (decided under former Code 1933, § 38-1707); Steinmetz v. Chambley, 90 Ga. App. 519, 83 S.E.2d 318 (1954); Woodward v. City Council, 117 Ga. App. 857, 162 S.E.2d 304 (1968) (decided under former Code 1933, § 38-1707); State Hwy. Dep't v. Godfrey, 118 Ga. App. 560, 164 S.E.2d 340 (1968); Marby v. Henley, 123 Ga. App. 561, 181 S.E.2d 884 (1971) (decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707).
Does not affect probative value.
- Rule relates as to the admissibility of testimony, and not a rule for the determination of the testimony's probative value. Scott v. Gidelight Mfg. Co., 37 Ga. App. 240, 139 S.E. 686 (1927) (decided under former Civil Code 1910, § 5873); Kines v. State, 67 Ga. App. 314, 20 S.E.2d 89 (1942);(decided under former Code 1933, § 38-1707).
Reading record in hearing of jury.
- Witness may not only read the witness's own deposition but it may be read to the witness in the presence and hearing of the jury to refresh the witness's memory. Burney v. Ball, 24 Ga. 505 (1858) (decided under former law).
Waiver.
- When only part of the memorandum was admitted in evidence at the instance of the party who offered the witness, over objection urged by the opposite party that it was inadmissible, the putting in evidence later by the opposite party of the remainder of the memorandum amounted to a waiver of the party's objection. Scott v. Gidelight Mfg. Co., 37 Ga. App. 240, 139 S.E. 686 (1927) (decided under former Civil Code 1910, § 5873).
Error in allowing counsel to view witness's notes harmless.
- Though the trial court erred in permitting the plaintiff's counsel to examine the notes used by defendant's witness to refresh the witness's memory, defendant failed to show how this error prejudiced the defense, therefore, the error was harmless. Seaboard Coastline R.R. v. Delahunt, 179 Ga. App. 647, 347 S.E.2d 627 (1986), overruled on other grounds, CSX Transp. v. Williams, 230 Ga. App. 573, 497 S.E.2d 66 (1998) (decided under former O.C.G.A. § 24-9-69).
Preserving error.
- While it was true that under former O.C.G.A. § 24-9-69, a witness whose memory was refreshed with a document had to continue their testimony on the basis of recollection alone, when such was not the basis of the defendant's objection at trial, the claim was not preserved for review. Hunter v. State, 282 Ga. App. 355, 638 S.E.2d 804 (2006) (decided under former O.C.G.A. § 24-9-69).
Cited in Sherod v. State, 334 Ga. App. 314, 779 S.E.2d 94 (2015), cert. denied, No. S16C0368, 2016 Ga. LEXIS 118 (Ga. 2016), cert. denied, 137 S. Ct. 51, 196 L. Ed. 2d 55 (U.S. 2016); Cade v. State, 351 Ga. App. 637, 832 S.E.2d 453 (2019).
Written Instrument or Memorandum
Either personal preparation or knowledge that facts true.
- In order to testify positively from paper itself, the witness must either have made the paper personally, or, at some time when facts were fresh in the witness's memory, the witness must have known the facts stated in the paper to be correct. Bradshaw v. State, 162 Ga. App. 750, 293 S.E.2d 360 (1982) (decided under former O.C.G.A. § 24-9-69).
After a defendant was charged with DUI, the trial court did not err in allowing one of the police witnesses to refresh the witness's recollection from a written document without any showing that the witness had prepared the document personally; so long as a witness is testifying from personal recollection, the witness is entitled to have the witness's memory refreshed by a document which the witness personally did not prepare. Ussery v. State, 195 Ga. App. 394, 393 S.E.2d 522 (1990) (decided under former O.C.G.A. § 24-9-69).
Paper itself as evidence.
- When a witness testifies from the witness's recollection refreshed as provided by statute, the paper itself, where not otherwise binding upon the party against whom the witness testifies, is without probative value and is not admissible as documentary evidence for any purpose. Stansall v. Columbian Nat'l Life Ins. Co., 32 Ga. App. 87, 122 S.E. 733, cert. denied, 32 Ga. App. 807 (1924) (decided under former Civil Code 1910, § 5873).
Excluding such memoranda as are admissible as business records or as part of the res gestae, it is generally held that the memorandum has no present evidentiary value, since it is not the memorandum that is the evidence, but the recollection of the witness. An exception is when the opposite side wished to introduce the memorandum in order to weaken the effect of the testimony. Woodward v. City Council, 117 Ga. App. 857, 162 S.E.2d 304 (1968) (decided under former Code 1933, § 38-1707); State Hwy. Dep't v. Godfrey, 118 Ga. App. 560, 164 S.E.2d 340 (1968); Mason v. State, 147 Ga. App. 179, 248 S.E.2d 302 (1978) (decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707).
Memorandum prepared by another.
- If the writing, instrument, document, or other thing from which the witness refreshes the witness's recollection was made in the witness's presence or at the witness's direction and if the witness knows that it contains true and correct information and is willing to swear positively to that effect, it is immaterial that the witness did not personally make the thing from which the witness testified. Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959), for comment, see 22 Ga. B.J. 380 (1960) (decided under former Code 1933, § 38-1707).
Although a witness may refresh the witness's memory from a writing prepared by another, the witness must nevertheless testify from the witness's memory thus refreshed. When the document is prepared by a third person not in the presence of a witness, the memory is not refreshed by such memorandum and such testimony is inadmissible. Zilinmon v. State, 234 Ga. 535, 216 S.E.2d 830 (1975), overruled on other grounds by Drinkard v. Walker, 281 Ga. 211, 636 S.E.2d 530 (2006) (decided under former Code 1933, § 38-1707).
In view of a prosecution witness's averment that the witness was testifying from the witness's refreshed memory, the trial court did not err in permitting the witness to testify to the tag number on defendant's truck, even though the witness refreshed the witness's memory by viewing a computer printout bearing the tag number; since the witness was entitled to have the witness's memory refreshed by a document which the witness personally did not prepare. Byrd v. State, 182 Ga. App. 284, 355 S.E.2d 666 (1987) (decided under former O.C.G.A. § 24-9-69).
Trial court correctly allowed a testifying police officer to refresh the officer's memory of the incident using a report written by someone else; O.C.G.A. § 24-9-69, permitted a witness to refresh and assist the witness's memory by the use of any written instrument or memorandum. Penland v. State, 258 Ga. App. 659, 574 S.E.2d 880 (2002) (decided under former O.C.G.A. § 24-9-69).
Defendants' motions for mistrial were properly denied because the trial judge - who had the benefit of observing the work-detail guard's demeanor and judging the guard's credibility before ruling upon the motions for mistrial - determined that the guard did not actually use the notes prepared by the prosecutor to refresh the guard's recollection; on direct examination, the guard testified that the guard was not actually using the notes; and the guard's recollection was only refreshed after the guard was permitted to review the incident report that the guard created in the immediate wake of the day in question, after review of which the guard provided more detailed and substantial answers to the state's questions. Jones v. State, 340 Ga. App. 142, 796 S.E.2d 765 (2017).
Witness at some time must have had personal knowledge of the memorandum's correctness. Davis v. State, 91 Ga. 167, 17 S.E. 292 (1893) (decided under former Code 1882, § 3866); Hematite Mining Co. v. East Tenn., Va. & Ga. Ry., 92 Ga. 268, 18 S.E. 24 (1893); Jones v. State, 99 Ga. 46, 25 S.E. 617 (1896) (decided under former Code 1882, § 3866); Lenney v. Finley, 118 Ga. 427, 45 S.E. 317 (1903); Shrouder v. State, 121 Ga. 615, 49 S.E. 702 (1905) (decided under former Civil Code 1895, § 5284); Smith v. City of Atlanta, 22 Ga. App. 511, 96 S.E. 334 (1918); Stansall v. Columbian Nat'l Life Ins. Co., 32 Ga. App. 87, 122 S.E. 733 (decided under former Civil Code 1895, § 5284); 32 Ga. App. 807 (1924); Herring v. State, 122 Ga. App. 730, 178 S.E.2d 551 (1970) (decided under former Civil Code 1895, § 5284); Morris v. State, 228 Ga. 39, 184 S.E.2d 82 (1971); 405 U.S. 1050, 92 S. Ct. 1511, 31 L. Ed. 2d 786 (1972) (decided under former Civil Code 1910, § 5873); Moore v. State, 240 Ga. 807, 243 S.E.2d 1; 439 U.S. 903, 99 S. Ct. 268, 58 L. Ed. 2d 249 (1978), cert. denied,(decided under former Civil Code 1910, § 5873);(decided under former Code 1933, § 38-1707);cert. denied,(decided under former Code 1933, § 38-1707);cert. denied,(decided under former Code 1933, § 38-1707).
Investigation reports prepared by witness.
- In a proceeding to terminate the parental rights of a parent who had been convicted of molesting the parent's children, the trial court did not err in allowing a probation official to use a confidential presentence investigation report to refresh the official's recollection about interviews the official had with the parent. In re S.M.L., 228 Ga. App. 81, 491 S.E.2d 186 (1997) (decided under former O.C.G.A. § 24-9-69).
It was not improper for an officer to use a police report to refresh the officer's recollection about a prior driving under the influence incident involving the defendant. Becker v. State, 280 Ga. App. 97, 633 S.E.2d 436 (2006) (decided under former O.C.G.A. § 24-9-69).
Investigation reports prepared by another witness.
- An investigating officer's report can be used to refresh another witness's recollection. Brown v. State, 247 Ga. App. 741, 545 S.E.2d 114 (2001) (decided under former O.C.G.A. § 24-9-69).
Statement as past recollection recorded.
- Although it is preferable to ask a witness specifically at trial whether the witness had told the truth as the witness then perceived it when the witness gave the witness's oral statement and whether a transcript thereof constituted an accurate recording in toto of what the witness had personally stated, since an adequate foundation was established, the transcribed statement may qualify as past recollection recorded under former O.C.G.A. § 24-9-69. Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 423 S.E.2d 387, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992) (decided under former O.C.G.A. § 24-9-69).
Statement was inadmissible as a past recollection recorded or under the medical diagnosis exception to the hearsay rule because after reviewing the typed statement, the social worker testified that the worker's memory was not refreshed and the worker was unwilling to swear that the statement accurately reflected the interview as required under former O.C.G.A. § 24-9-69. Sandlin v. State, 273 Ga. 440, 542 S.E.2d 496 (2001) (decided under former O.C.G.A. § 24-9-69).
Transcript allowed to go out with jury.
- Transcript of statement by witness which was admissible as past recollection recorded should not have been allowed to go out with the jury during deliberation. Platt v. National Gen. Ins. Co., 205 Ga. App. 705, 423 S.E.2d 387, cert. denied, 205 Ga. App. 900, 423 S.E.2d 283 (1992) (decided under former O.C.G.A. § 24-9-69).
Cross-examination concerning contents.
- Cross-examiner should and does possess the right to quiz the witness concerning the contents of the written instrument without introduction of the document. In doing so the witness is entitled to shed light on the relevant issues whether this be favorable or unfavorable to the client's cause. Lester v. S.J. Alexander, Inc., 127 Ga. App. 470, 193 S.E.2d 860 (1972) (decided under former Code 1933, § 38-1707).
Examination of memorandum by opposing counsel.
- Trial court does not err in refusing to allow defense counsel to examine all a police officer's notes in the officer's file, although defense counsel is allowed to cross-examine the officer with reference to the notes used to refresh the officer's recollection. Sprague v. State, 147 Ga. App. 347, 248 S.E.2d 711 (1978). See also Ellison v. Robinson, 96 Ga. App. 882, 101 S.E.2d 902 (1958) (decided under former Code 1933, § 38-1707).
Testimony is not subject to "best evidence" objections if the witness merely used records made, kept, and maintained in the regular course of business under the witness's supervision, direction, and control to refresh the witness's memory and the records were admitted into evidence. Robinson v. Reward Ceramic Color Mfg., Inc., 120 Ga. App. 380, 170 S.E.2d 724 (1969) (decided under former Code 1933, § 1106).
Use of codefendant's testimony prohibited.
- Witness may not refresh witness's memory from testimony given at the trial of another defendant under the same indictment. Brown v. State, 28 Ga. 199 (1859) (decided under former law).
Illustrations
Recollection refreshed.
- Testimony was admissible in the following cases, where witness's recollection was refreshed by a memorandum: Veal v. Wood, 29 Ga. App. 94, 113 S.E. 818 (1922) (decided under former Civil Code 1910, § 5873); Lazar v. Black & White Cab Co., 50 Ga. App. 567, 179 S.E. 250 (1935);(decided under former Code 1933, § 38-1707).
Since the doctor was present when the plaintiff was brought into the hospital immediately after plaintiff's injury, was present when X-ray pictures were taken and developed, examined the x-rays immediately thereafter and ascertained therefrom that the nature of the plaintiff's injury was such that it was necessary to refer the plaintiff to an orthopedic surgeon, the refusal of the court to allow the witness to refresh the witness's memory under the circumstances shown was probably harmful error and required a reversal of the case. Smith v. Morning News, Inc., 99 Ga. App. 547, 109 S.E.2d 639 (1959), for comment, see 22 Ga. B. J. 380 (1960) (decided under former Code 1933, § 38-1707).
Trial court did not improperly allow a prosecutor to refresh a victim's recollection with a letter the victim wrote to the district attorney's office expressing fear of the defendant as: (1) the defense counsel asked to see the letter before the prosecutor handed the letter to the victim; (2) the prosecutor granted that request; (3) after previewing the letter, the defense counsel did not object to the victim using the letter to refresh the victim's memory; and (4) the letter was neither admitted into evidence nor read to the jury. Haggins v. State, 277 Ga. App. 742, 627 S.E.2d 448 (2006) (decided under former O.C.G.A. § 24-9-69).
Detective's use of a photograph to refresh that detective's recollection as to which of the codefendants was the defendant on trial went to the weight of the detective's testimony, but did not require that the identification of the defendant on trial be excluded due to a substantial likelihood of irreparable misidentification. Ford v. State, 285 Ga. App. 106, 645 S.E.2d 590 (2007) (decided under former O.C.G.A. § 24-9-69).
Trial court did not err in allowing an attorney to read a letter memorializing a conversation between the attorney and a decedent because a proper foundation was laid for the attorney to read the letter to the jury as a past recollection recorded when the attorney testified that the attorney personally prepared the letter and that the conversation concerning the scope of a receipt that was recounted in the letter occurred no more than three days before the letter was prepared; although the attorney could not presently recall being told by the decedent that the release from indebtedness contained in the receipt was intended to be limited in scope, the attorney testified that based on the wording of the letter the attorney believed that such a conversation with the decedent and the executor's two siblings had taken place, and that testimony established that the attorney memorialized the conversation in the letter when it was fresh in the attorney's mind and that the attorney believed that the letter was true and accurate when written. Jerkins v. Jerkins, 300 Ga. App. 703, 686 S.E.2d 324 (2009) (decided under former O.C.G.A. § 24-9-69).
Swearing positively from paper.
- Testimony was admissible in the following cases when a witness swore positively from the paper that the facts contained therein were correct: Williams v. C. & G.H. Kelsey & Halsted, 6 Ga. 365 (1849) (decided under former law); Black v. Thornton, 30 Ga. 361 (1860); Schmidt v. Wambacker & Weil, 62 Ga. 321 (1879) (decided under former law); Scott v. Gidelight Mfg. Co., 37 Ga. App. 240, 139 S.E. 686 (1927); Clackum v. State, 55 Ga. App. 44, 189 S.E. 397 (1936) (decided under former Code 1868, § 3810) Elliott v. Georgia Power Co., 58 Ga. App. 151, 197 S.E. 914 (1938); Brown-Rogers-Dixon Co. v. Southern Ry., 79 Ga. App. 449, 53 S.E.2d 702 (1949) (decided under former Civil Code 1910, § 5873); Haskins v. Carson, 115 Ga. App. 336, 154 S.E.2d 626 (1967);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707);(decided under former Code 1933, § 38-1707).
Before a witness may swear positively from a paper it is not necessary that the witness show a present recollection of the contents of the document. Mincey v. State, 257 Ga. 500, 360 S.E.2d 578 (1987) (decided under former O.C.G.A. § 24-9-69).
Reading from paper for rebuttal purposes.
- Trial court properly permitted an arresting officer to read that portion of the form containing the Miranda warnings which the witness had administered to the defendant for the sole purpose of rebutting the defendant's contention that the defendant had not been advised of the defendant's Miranda rights. Adams v. State, 260 Ga. 298, 392 S.E.2d 866 (1990) (decided under former O.C.G.A. § 24-9-69).
Inadequate basis for use of memorandum.
- Witness could not, over objection, testify to the contents of a typewritten signed memorandum which purported to be a statement of the witness's account with the plaintiff when on cross-examination the witness admitted that the witness did not prepare the memorandum, that the witness did not know who did, that the witness received the memorandum through the mail, but the witness did not recall even the return address on the envelope, that the memorandum was not signed, and that the witness had no independent knowledge of the memorandum's contents or that the items had in fact been charged back to the witness's account. Stalvey v. Varn Motors & Fin. Co., 56 Ga. App. 696, 193 S.E. 627 (1937) (decided under former Code 1933, § 38-1707).
No refreshment absent personal knowledge.
- Trial court did not err by refusing to allow one of the prosecution witnesses (a police officer) to refresh the officer's recollection from a police report prepared by another officer since the officer testified that the officer had no such personal knowledge. Sweat v. State, 203 Ga. App. 290, 416 S.E.2d 845 (1992) (decided under former O.C.G.A. § 24-9-69).
Refusal to refresh recollection appropriate.
- Refusal to allow defendant to use an officer's report to refresh a witness's recollection was harmless error since defendant's goal was to use the witness's refreshed recollection to impeach the witness in an impermissible manner - with a document created by one other than the witness and which the witness had not signed. Woods v. State, 269 Ga. 60, 495 S.E.2d 282 (1998) (decided under former O.C.G.A. § 24-9-69).
Pursuant to former O.C.G.A. § 24-9-69, a witness is allowed to refresh and assist the witness's memory by the use of any written instrument or memorandum; trial counsel's failure to object to the refreshing of a witness's recollection was not ineffective assistance of counsel. Usher v. State, 258 Ga. App. 459, 574 S.E.2d 580 (2002) (decided under former O.C.G.A. § 24-9-69).
Refreshing police officer's recollection on be on the lookout bulletin.
- Trial court's refusal in a suppression hearing to allow a police officer to refresh the officer's recollection about the contents of a be on the lookout police dispatch was harmless error because, given the other evidence that was presented, it did not contribute either to the court's decision on the suppression motion or to the court's adjudication of a juvenile as delinquent. In re H.A., 308 Ga. App. 111, 706 S.E.2d 615 (2011) (decided under former O.C.G.A. § 24-9-69).
Officer's memory refreshed by police report.
- In the defendant's trial for murdering a victim by bludgeoning the victim with a rock, the trial court properly admitted an incident that occurred seven years earlier in which the defendant hit an officer with a brick. The officer initially said that it was "possibly" defendant who hit the officer with a brick; however, after the state refreshed the officer's memory with the police report, the officer recalled that the defendant was the person the officer identified as the attacker. Carson v. State, 308 Ga. 761, 843 S.E.2d 421 (2020)(decided under former O.C.G.A. § 24-9-69).
Failure to object to reading of transcript from preliminary hearing did not constitute ineffective assistance of counsel.
- As counsel allowed a detective to read from a transcript of the defendant's preliminary hearing so that counsel could cross-examine the detective about a "blank" in the transcript and thus imply that it did not reflect the defendant's entire statement, counsel's strategic decision not to object to the reading of the transcript under former O.C.G.A. § 24-9-69 did not constitute ineffective assistance. Nesbitt v. State, 296 Ga. App. 139, 673 S.E.2d 652 (2009) (decided under former O.C.G.A. § 24-9-69).
RESEARCH REFERENCES
Am. Jur. 2d.
- 81 Am. Jur. 2d, Witnesses, § 742.
ALR.
- Use of memorandum by witness to refresh recollection as affected by the time when it was made, 65 A.L.R. 1478; 125 A.L.R. 19.
Refreshment of recollection by use of memoranda or other writings, 125 A.L.R. 19; 82 A.L.R.2d 473.
Admissibility of testimony of witness at former trial or in another case to cover gaps or omissions, due to faulty memory or other causes, in his present testimony given in person or by deposition, 129 A.L.R. 843.
Refreshment of recollection by use of memoranda or other writings, 82 A.L.R.2d 473.
Admissibility and weight of extrajudicial or pretrial identification where witness was unable or failed to make in-court identification, 29 A.L.R.4th 104.
Fact that witness undergoes hypnotic examination as affecting admissibility of testimony in civil case, 31 A.L.R.4th 1239.
Admissibility of hypnotically refreshed or enhanced testimony, 77 A.L.R.4th 927.