Which statement correctly describes refreshing recollection and its foundation?

• A. Refresh recollection allows the witness to refer to a writing or memory aid to jog memory; foundation includes showing the witness once knew the matter and that the writing helped memory, and the writing is shown to opposing counsel and not read to the jury unless admitted.
• B. Refresh recollection requires the writing to be introduced as substantive evidence without the opposing counsel's notice.
• C. The witness cannot rely on any writing to refresh memory.
• D. Refresh recollection permits the jury to read the writing aloud.

Answer: (B)

Refreshing recollection lets a witness use a writing or other memory aid to jog memory while testifying. The foundation for this practice is twofold: the witness must have previously known the matter, and the writing must actually help jog their memory. Importantly, the writing is produced to the opposing party for inspection, and it is not read to the jury unless the writing is admitted as evidence or the witness ends up relying on its content in a way that becomes evidence. In short, a memory aid can be used to refresh, but it is not automatically substantive evidence, and fairness requires the other side to see the aid. The jury isn’t shown the writing unless it becomes part of the evidence.