The Fourth Circuit’s unpublished per curiam opinion in United States v. Rydland provides a helpful and concise discussion of some rules of evidence relating to the use of notes to refresh a witness’s recollection and to impeach the witness with prior inconsistent statements. The panel that issue the opinion consisted of Judge Wilkinson, Judge Motz, and Judge Shedd.
The panel distilled two key principles that governed the district court’s ruling: ” (1) a party may not attempt to introduce otherwise inadmissible evidence under the guise of refreshing recollection and (2) a witness may not use a document to refresh recollection unless she has exhibited a failure of memory.”
The panel’s distillation of these principles is interesting in itself. In a footnote, the opinion notes that the district court cited three cases, to which citations the opinion added explanatory text. The three citations were to a 2004 opinion from the First Circuit, a 1967 opinion from the Eighth Circuit, and a 1965 opinion from the Fifth Circuit. Presumably, the district court’s ruling was based on something like a reliable bench book containing established principles of evidence law, rather than on-the-spot electronic research into the latest decisions.