Some Observations on the Law of Evidence -- Memory

Abstract

The common legal assumptions in regard to memory come most clearly to the surface in the rules governing present recollection revived, past recollection recorded, and cross-examination to impeach. Between the first two, sharp distinctions are drawn which result partly from the fact that a memorandum used to refresh recollection generally does not go to the jury as evi dence - whereas a memorandum of past recollection does - and partly from the psychological theories of the courts. Thus a federal judge lately remarked: "It is one thing to awaken a slumbering recollection of an event, but quite another to use a memorandum of a recollection, fresh when it was correctly recorded, but presently beyond the power of the witness so to restore that it will exist apart from the record. In the former case it is quite immaterial by what means the memory is quickened; it may be a song, or a face, or a newspaper item, or a writing of some character. It is sufficient that by some mental operation, however mysterious, the memory is stimulated to recall the event, for when so set in motion it functions quite independently of the actuating cause."