Under memory refresh using a writing, what may the adverse party do?

Under memory refresh using a writing, what may the adverse party do?

• A. The adverse party may question the witness about the writing.
• B. The adverse party may examine the writing itself.
• C. Only the court may examine the writing.
• D. The adverse party may examine and question the witness on the writing.

Answer: (D)

When memory is refreshed using a writing, the opposing party has the right to both inspect the writing and cross-examine the witness about what’s written. This protects fairness by letting the other side see exactly what is being used to jog memory and challenge how that memory is being refreshed. Importantly, the writing itself isn’t automatically evidence unless it qualifies as a past recollection recorded; otherwise it’s used only for refreshing memory and cross-examination. That combination—examining the writing and questioning the witness about it—best captures the applicable rule, since it ensures transparency and enables a thorough challenge during testimony. The other options fall short because they omit either the right to inspect the writing or the right to cross-examine about it.

When memory is refreshed using a writing, the opposing party has the right to both inspect the writing and cross-examine the witness about what’s written. This protects fairness by letting the other side see exactly what is being used to jog memory and challenge how that memory is being refreshed. Importantly, the writing itself isn’t automatically evidence unless it qualifies as a past recollection recorded; otherwise it’s used only for refreshing memory and cross-examination. That combination—examining the writing and questioning the witness about it—best captures the applicable rule, since it ensures transparency and enables a thorough challenge during testimony. The other options fall short because they omit either the right to inspect the writing or the right to cross-examine about it.