State v. Watson ( 1973 )

Bogdanski, J.

(dissenting). The majority opinion reaffirms its adherence to the rule that notes or writings used by a witness to revive his recollection must be given to the opponent on demand for inspection and cross-examination, but only if the writing is referred to by the witness when he is testifying on the stand. I believe that the opposing party should have the right to examine any writing purportedly used to refresh recollection for the purpose of testifying, whether the witness used it while on the stand or prior to taking the stand. The distinction made is artificial and without reason.

Allowing a witness to refresh his recollection entails the risk that he will testify, consciously or unconsciously, to what is in the writing and not to what is in his memory. The best way discovered by the law to protect the opponent against “the risk of imposition and false aids” is to permit bim to inspect the notes and writings used by the witness to refresh his memory, and to use them in cross-examination to test the trustworthiness of the witness’ testimony. 3 Wigmore, Evidence (Chadbourn Eev. 1970) § 762.

No logical reason exists for restricting the opponent’s right to examine the writing because the witness consulted it before he took the stand. “[T]hough there is no objection to a memory being thus stimulated, yet the risk of imposition and the need of safeguard is just as great. It is simple and feasible enough for the court to require that the paper be sent for and exhibited before the end of the trial.” 3 Wigmore, op. cit., p. 140. “[T]he public interest in the full disclosure of the source of a witness’s testimony seems a weightier consideration” than discouraging “prying into the opponent’s file.” McCormick, Evidence (2d Ed.) § 9. The advisory committee which drafted the proposed Federal Rules of Evidence agrees. See Rule 612 of the Federal Rules of Evidence, 56 F.R.D. 183, 276-77. A growing number of courts have already adopted this position. See Annot., 82 A.L.R.2d 473, 566-69, and, especially, State v. Mucci, 25 N.J. 423, 436, 136 A.2d 761; the court there concluded that “it is but just and right . . . that the rule apply to writings so used by the witness before trial as when the refreshment is . . . had while he is on the stand.” See also Doxtator v. Swarthout, 38 App. Div. 2d 782, 328 N.Y.S.2d 150; State v. Deslovers, 40 R.I. 89, 103-5, 100 A. 64. This court should not lag behind.