Williams v. State ( 1983 )

Weltner, Justice,

concurring specially.

I concur in the judgment, and concur specially in Division 1 of the opinion.

The majority has set out accurately the present state of the law of Georgia relative to the opportunity of a cross-examiner to examine a document used by a witness to refresh recollection, and the trial court properly applied the law in its present state. See, in general, OCGA § 24-9-69 (Code Ann. § 38-1707).

I concur specially inasmuch as I believe that the present restriction is not in keeping with the basic concept of a thorough and sifting cross-examination, nor is the ability of a witness to withhold from scrutiny a document from which he purportedly refreshes his recollection in keeping with the object of all legal investigation, which is the discovery of truth. OCGA § 24-9-64 (Code Ann. § 38-1705); OCGA § 24-1-2 (Code Ann. § 38-101).

As example, a witness may testify that his recollection is refreshed by a report, and testify that his recollection, thus refreshed, is that “the light was green.” At the same time, a sharp-eyed cross-examiner is able to read the very document, on which is recorded “the light was red.”

Or, a physician may examine a paper which he characterizes as the notes of a patient’s examination and maintain that his memory has been refreshed thereby, and that the patient’s complaints were of a certain nature. Yet, the cross-examiner can plainly see that the document thus consulted by the physician is nothing more than a page from a mail-order catalog.

Or, the witness may refer to a document, maintaining it to be a memorandum made by him contemporaneously with the event, and, being refreshed, testify to a chain of events. The cross-examiner can see that the document is a letter to the witness on the stationery of his opponent, outlining the witness’ prospective testimony.

Or, a witness may choose to be selective, refreshing his memory as to certain details in a writing while ignoring others therein recorded.

Under the present rule the cross-examiner is helpless to protest the plain perjury of the witness, and the judicial system has denied to itself access to important information which is of aid in finding the truth.

The rule is wrong, and should be changed.