Duhaime's Law Dictionary


Present Memory Revived Definition:

A facilitative mechanism used at trial to assist a witness in recalling his or her memory, thus revived.

Related Terms: Past Recollection Recorded, Hearsay

In R. v Wilks, the Manitoba Court of Appeal wrote:

"Witnesses often forget, and so it is permissible to use aids to assist the witness.  The use of these aids will fall into one of two categories.  They will either (i) assist the witness by reviving his or her memory so that the witness, whose memory has been jogged by the aid, now has a present memory of the fact (present memory revived), or (ii) be a record of the fact, previously made and now attested to as an accurate record (past recollection recorded)....

"In the case of present memory revived, the aid is not evidence, but is simply a facilitative mechanism which becomes irrelevant once the witness has had his or her present memory revived by the use of the aid.

"In the case of past recollection recorded, there is no present memory, so it is the evidence of the past recollection, recorded usually in the form of notes or the like, that is admitted."

That court relied, in part, on this statement of authors Mewett and Sankoff:

"True cases of present memory revived involve a witness who has actually had his or her memory refreshed."

In R v Kemash, Justice of the Court of Appeal of Manitoba noted:

"The critical point is that whatever is used to refresh memory under the doctrine of present memory revived does not become evidence. The evidence is the viva voce evidence given by the witness at trial after having his/her memory refreshed."

Or, as Justice Manderino of the Supreme Court of Pennsylvania said in Commonwealth v Canales:

"We must examine two rules governing the use at trial of a witness's prior writing. One rule, known as past recollection recorded, permits a prior writing to be introduced into evidence. The other rule, known as present memory revived, does not permit the prior writing to be introduced into evidence, even though the witness may have used the writing as an aid in testifying."

In The Law of Evidence, the authors wrote this under the heading Present Recollection Revived:

"There is authority to the effect that a witness may consult any document while testifying. As long as the document sparks an actual recollection of the event recorded, the witness can present oral testimony about the event remembered."

In R v Kassam, Justice Nadel of the Ontario Court of Justice adopted these words, relying in part of Wigmore:

"[T]here is no hard and fast rule, that anything in writing may be used to stimulate and revive a recollection.  On the other hand, it may be improper in a given instance to allow a witness to refer to something written down.  It all depends on the circumstances....

"[W]hether or not there is an actual and current recollection revived by reference to an aide-memoire is a matter that is, and can be the subject of cross-examination, and can be the subject of submissions and it really is a matter for the trier of fact to determine whether there was a true present recollection that has been revived by reference to the aide-memoire or whether, in a particular case at issue, ... whether or not in any given case it is really past recollection recorded."

Justice Nadel also noted this relevant excerpt from the 11th Edition of Phipson on Evidence:

"A witness may refresh his memory by reference to any writing made or verified by himself concerning and contemporaneously with, the facts to which he testifies; but such documents are no evidence per se of the matters contained....

"The writing may have been made either by the witness himself or by others, providing in the latter case that it was read to him when the facts were fresh in his memory and he knew the document to be correct....

"The document must have been written either at the time of the transaction or so shortly thereafter that the facts were fresh in his memory.  A delay of a fortnight may not be fatal, but an interval of seven weeks, or six months, has been held to exclude."

REFERENCES:

  • Commonwealth vof Pennsylvania. Canales, 454 Pa. 422
  • Mewett, Alan and Sankoff, Peter, Witnesses, Vol. 1, (Toronto: Carswell, 2004), at 13-3
  • Phipson on Evidence, 11th Ed., pages 632-634
  • R v Kassam, 2007 ONCJ 239
  • R v Kemash, 2009 MBCA 15
  • R. v. Wilks, 2005 MBCA 99
  • Wigmore on Evidence, 3rd Ed. (1940), para. 758, p. 125

Categories & Topics:


Always looking up definitions? Save time with our search provider (modern browsers only)

If you find an error or omission in Duhaime's Law Dictionary, or if you have suggestion for a legal term, we'd love to hear from you!