Federal Evidence Review

In engineer’s injury action based on railroad’s locomotive controls, even if the trial court erred in admitting a letter used to refresh a plaintiff witness’s recollection of the context for a study on the hazardous conditions in defendant’s locomotives, the error was harmless because the jury never received the letter and defense counsel adequately showed the letter’s irrelevance, in Granfield v. CSX Transportation, Inc., 597 F.3d 474 (1st Cir. March 12, 2010) (No. 09-1302)

Under FRE 612, if a party uses a writing to refresh a witness’s recollection, the adverse party may inspect the matter used to refresh the witness’s memory and use it for examination of the witness. The focus of the rule is on the witness’s current testimony, which is the evidence that is admitted. The item used to refresh the witness’s memory need not be admissible and does not become admissible simply because it was used to refresh the witness’s memory. See 20th Century Wear, Inc. v. Sanmark-Stardust Inc., 747 F.2d 81, 93 n.17 (2d Cir. 1984) (plaintiff could use surreptitious tape of interview between plaintiff’s lawyer and witness to refresh the witness’s knowledge, noting wide range of materials that may be used to refresh a witness’s memory). However, use of inadmissible material does not render the material admissible at trial. A recent case by the First Circuit illustrates the operation of this rule.

In the case, plaintiff Granfield was a railroad engineer who brought a Federal Employer’s Liability Act (FELA) and Locomotive Inspection Act action against his employer CSXT, claiming that he had become unemployable after developing tennis elbow (lateral epicondylitis) from operating the defective train controls in the cabin of his CSX locomotive. At the jury trial, the plaintiff presented testimony by the union chairman Roberts concerning a “comprehensive study” he made of locomotive work reports on defects various engineers experienced operating their locomotives at CSXT. Based on his findings, Roberts sent a letter to CSXT concerning the “dangerous disrepair” of the locomotives.

During cross-examination, the defendant “questioned him as to the comprehensiveness” of the study and Roberts answered “that he did not know.” Accordingly, the defendant “approached him and used” the witness’s letter to CSXT to refresh his memory. During redirect examination, the plaintiff offered the letter into evidence. The court admitted it over the defendant’s objection “reasoning that as CSXT used the letter to refresh a witness’ memory, Granfield had the right to offer it into evidence.” However, before the jury began deliberations, the court revisited this ruling and “overruled its original admission of the letter” and “struck the whole letter and determined that it should not be provided to the jury for its deliberations.” Consequently, “The contents of the letter were not read to the jury, nor were they admitted into evidence.” Granfield, 597 F.3d at 488. The jury returned a verdict for the plaintiff, and the defendant appealed based in part on the claim that it had been unfairly prejudiced by the court’s admission of the Roberts letter.

The First Circuit ultimately found that if there were any error, it was harmless. However, in its analysis, the circuit noted the proper application of FRE 612:

“Typically, when a party uses a writing to refresh a witness’s memory, the opposing party has the right to offer ‘those portions [of the writing] which relate to the testimony of the witness’ into evidence. Fed. R. Evidence 612. Rule 612 also states that ‘[i]f it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto.’ Id. Rule 612 has never been construed to require that a writing used to refresh a witness’ recollection must be independently admissible into evidence. United States v. Shinderman, 515 F.3d 5, 18 (1st Cir. 2008).

“Here, the letter impeached by CSXT contained general and possibly prejudicial language on the state of the locomotives, mainly that they were in ‘degenerated condition,’ ‘dangerous disrepair,’ and presented an unsafe workplace for CSXT engineers. During cross-examination, CSXT’s counsel used the letter to refresh Robert’s recollection as to the ‘comprehensiveness’ of the study carried out…. At re-direct, Granfield’s counsel introduced the letter into evidence, over CSXT’s objection, and asked Roberts what the letter said. The district court refused to allow Roberts to read the letter aloud, reasoning that the jury would be able to read it on their own later. Granfield’s counsel then asked Roberts four questions relating to the letter. In response to these questions, Roberts testified that he thought the locomotives provided a risk of serious injury and had slipped into a state of disrepair, due to holes being present on the floor, among other things.”

Granfield, 597 F.3d at 489.

The circuit declined to answer whether the trial court had violated FRE 612 because even if erroneous, its impact on the litigation was harmless. As explained by the circuit, three factors illustrated that it was harmless. First, the Roberts letter was “was never read out loud to the jury, so any prejudice” was a result of the witness’s testimony and not the letter. Second, in re-cross defense counsel confronted the witness about “the contents of the letter” and the witness “admitted that the … study referenced in the letter only concerned the floors of the locomotives, which were apparently plagued by holes”; “that nothing in the letter had any relevancy to the state of the throttles and alerters, the main issue at trial” because plaintiff alleged by using them, he developed debilitating tennis elbow. Therefore, defense counsel was able to neutralize any prejudicial effect including that the letter “was irrelevant to the condition of the throttles and alerters and was instead only relevant to the condition of the floors of the locomotives.” In addition, because “the letter never actually reached the jury,” the witness’s brief statement about its contents “was harmless error.” Granfield, 597 F.3d at 489.

Granfield illustrates the care necessary in refreshing a witness with a writing under FRE 612. A writing that is used to refresh a witness’s recollection is admissible to the extent its contents is used by the adversaries of the refreshing party in that they can cross-examine the witness on the writing and about the parts of the writing that relate to the testimony offered by the witness. A writing used to refresh a witness’s memory can be offered by the adversary of the refreshing party but not for all purposes, for example when that evidence is otherwise inadmissible, such as hearsay, it is not generally admissible despite FRE 612. See United States v. Walker, 272 F.3d 407, 417 (7th Cir. 2001) (witness’s recollection refreshed by looking at his notes of his interview with an eyewitness to the charged robbery; the notes were admissible to extent witness used it to the recall the reported license plate of the escape car but would not support the defendant’s use of the notes to show another eyewitness reported that he saw one of the robbers flee since this was hearsay within hearsay; prosecution use of notes to refresh witness’s memory did not entitle defense to offer the rest of notes for other than explaining or qualifying the portions offered by government).