Short answer. Yes. Rule 132, Section 16 lets a witness refresh their memory using something they wrote or recorded near the time the fact occurred, or that they knew was correctly recorded, as long as the writing is produced for the adverse party to inspect, cross-examine on, and read into evidence.
What the law says
A witness may be allowed to refresh his or her memory respecting a fact by anything written or recorded by himself or herself, or under his or her direction
Rule 132, Section 16 — When witness may refer to memorandum. Read the full provision →
What the law says
the writing or record must be produced and may be inspected by the adverse party, who may, if he or she chooses, cross-examine the witness upon it and may read it in evidence
Rule 132, Section 16 — When witness may refer to memorandum. Read the full provision →
What qualifies as a memory-refreshing writing
The rule allows a witness to refresh memory using anything written or recorded by himself or herself, or under his or her direction, made at the time when the fact occurred, or immediately thereafter, or at any other time when the fact was fresh in his or her memory, and which the witness knew at the time was correctly written or recorded. The common thread is timing and reliability — the note has to trace back to a moment when the witness's memory of the fact was still accurate.
The adverse party's right to see it
Using the writing this way is not a private aid the witness gets to keep to themselves. The rule requires that the writing or record must be produced and may be inspected by the adverse party, who may then cross-examine the witness upon it and may read it in evidence. In practice, once a witness refreshes their memory from a document during testimony, opposing counsel is entitled to see exactly what they looked at and can use it in cross-examination.
Refreshing memory versus testifying from the record itself
The section also covers a related but distinct situation: a witness who has genuinely lost recollection of the particular facts may still testify from a writing or record, if able to swear that it correctly stated the transaction when it was made. This is different from ordinary memory-refreshing, where the witness looks at the note and then testifies from actual, restored memory — here, the witness is essentially vouching for the accuracy of the record itself rather than recalling the underlying facts independently, and the rule notes that such evidence must be received with caution.
Why the distinction matters for how the testimony is weighed
A court and opposing counsel are likely to treat 'I remember now that I've seen my note' differently from 'I don't actually remember, but I trust what I wrote down at the time.' Knowing which situation applies to a witness helps in preparing them — and in understanding, from the other side, how much weight a court might realistically give testimony that depends on a writing rather than on the witness's own restored recollection of the underlying events.
Related provisions
- Rule 132, Section 16 — When witness may refer to memorandum
- Rule 132, Section 15 — Exclusion and separation of witnesses
- Rule 132, Section 17 — When part of transaction, writing or record given in evidence, the remainder admissible