United States v. Riccardi
174 F.2d 883 (1949)
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Rule of Law:
A witness may use any writing to refresh their present recollection, regardless of when it was made or by whom, so long as the trial court is satisfied the witness is testifying from a genuinely revived memory. The writing used to refresh recollection is not evidence; the witness's testimony is the evidence.
Facts:
- Doris Farid es Sultan eh owned a large collection of valuable household items, including bric-a-brac, linens, and silverware, stored at her home in Morristown, New Jersey.
- Riccardi transported numerous chattels belonging to Farid from her New Jersey home to Arizona using a truck and station wagon.
- As the items were being moved out of her house, Farid created handwritten notes listing the items.
- Farid later created a typewritten copy from her original handwritten notes.
- An antiques expert, Leo Berlow, was familiar with Farid's collection from prior professional visits to her home.
- Riccardi disputed the quantity and quality of the items the government alleged he transported.
Procedural Posture:
- The United States government indicted Riccardi in a federal district court (trial court) on four counts of unlawfully transporting stolen chattels in interstate commerce.
- The trial court dismissed two of the four counts before trial.
- A jury convicted Riccardi on the remaining two counts.
- Riccardi, as the appellant, appealed the conviction to the United States Court of Appeals for the Third Circuit, with the United States as the appellee.
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Issue:
Does a trial court abuse its discretion by permitting witnesses to use lists not created contemporaneously with the events in question to refresh their present recollection of numerous items involved in a crime?
Opinions:
Majority - Kalodner
No. A trial court does not abuse its discretion by permitting a witness to use a writing to refresh their present recollection, even if the writing was not made contemporaneously with the event. The court drew a critical distinction between "present recollection revived" and "past recollection recorded." For present recollection revived, where a writing merely stimulates a witness's dormant memory, any document may be used, and its origin or timing is irrelevant because the witness's sworn testimony, not the document, is the evidence. In contrast, for past recollection recorded, the witness has no current memory, and the document itself is offered as a substitute for memory, thus requiring a foundation of reliability, such as being made at or near the time of the event. The trial judge has the discretion to determine if the witness is genuinely testifying from a refreshed memory or merely reading from a script, and in this case, the judge was satisfied that the witnesses had a bona fide present recollection of the numerous items.
Analysis:
This case is a foundational opinion on the rules of evidence, clearly articulating the distinction between present recollection revived and past recollection recorded. It liberalizes the rule for refreshing memory, establishing that the focus is on the credibility of the witness's revived testimony, not the admissibility of the stimulus used. By granting trial judges broad discretion, the decision shifts the burden to the opposing counsel to challenge the witness's claimed recollection through cross-examination. This precedent solidifies the principle that almost any object or document can be used to jog a witness's memory, fundamentally shaping trial practice for witness examination.
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