Completely Refreshing: Does the Rule of Completeness Apply to Refreshing Recollection?

New Jersey Rule of Evidence 612 states that

Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness’ memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. If it is claimed that the writing contains material not related to the subject of the testimony, the court shall examine the writing in camera and excise any unrelated portions. If the witness has used a writing to refresh the witness’ memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying.

Based on the language of this rule, the trial judge clearly made a misstatement of law in Joachim v. Jackson, 2014 WL 4745547 (N.J.Super.A.D. 2014). Or did he?

In Jackson, Leah A. Joachim won a breach of contract action against Matthew A. Jackson. The evidence adduced at trial indicated that

Plaintiff and defendant lived together in an apartment from August 2006 through September 2008. In September 2011, plaintiff filed a complaint alleging that the parties agreed to share expenses, that defendant owed her money, that he had subsequently agreed to repay her $550 per month for five years, and that he had breached that agreement.

As part of her complaint, the “plaintiff attached a ‘Schedule of Loan Transactions” (summary spreadsheet), listing each loan to, advance to, and repayments by defendant. She also attached two credit card interest spreadsheets showing the interest she paid on the moneys loaned and advanced to defendant.” Prior to trial, 

defense counsel objected to the admission of the spreadsheets, arguing that they had not been prepared in the ordinary course of business and constituted inadmissible hearsay. Alternatively, he requested that the spreadsheets be used only to refresh plaintiff’s recollection. The court declined to rule before trial on the admissibility of the spreadsheets, and stated that their admissibility would depend on how they were prepared, and whether they were summaries designed to help speed the trial.

Later, while testifying, the

plaintiff, an accountant, stated that she kept records of the money she loaned or advanced to defendant, and that she needed her records “to refresh her memory as far as the exact amounts and items that she made loans for or advanced payments for”” She testified that she maintained contemporaneous spreadsheets of all her expenses, including those monies advanced to defendant. She explained that from those original spreadsheets, she culled those transactions relevant to defendant, and his payments, into the summary spreadsheet. She completed the summary spreadsheet during the course of the litigation.

The court indicated that the summary spreadsheet was “not in evidence” but marked it for identification. When plaintiff testified that she had to look at it to get exact figures, the court allowed her to “refresh[ ] her recollection.” When defense counsel cross-examined her extensively with the summary spreadsheet and the interest spreadsheets, the court confirmed they were marked for identification and were “still for refreshing recollection.”

After the court found for the plaintiff, the defendant appealed, claiming

that the spreadsheets were nonetheless admitted, citing the court’s comment during defendant’s testimony. Defense counsel used the summary spreadsheet to examine him. Defense counsel then “briefly noted for the record my standing objection to the admissibility of that,” pointing out that the court had restricted its use to refreshing recollection. The court commented that once defendant used the summary spreadsheet affirmatively in his own case, it “comes in,” and the restriction “disappears.”

In response, the court concluded:

We need not decide whether, “under the doctrines of ‘opening the door,’ ‘curative admissibility’ and ‘completeness,’ defendant would have been precluded ‘from successfully excluding from [plaintiff’s] case-in-chief inadmissible evidence and then selectively introducing pieces of this evidence for the defendant’s own advantage, without allowing [plaintiff] to place the evidence in its proper context.'”…Here, despite its comment, the court continued to refer to the summary spreadsheet as marked “for identification” only. As plaintiff points out, the court never formally admitted any of the spreadsheets. Further, defendant has not identified the use at trial of any information from the spreadsheets that was not testified to by the parties.

So, the court legitimately sidestepped the issue raised by the defendant, but I think the defendant was correct in principle. If you look back at the language of Rule 612, it seems to lat out the following structure. First, the proponent can use an otherwise inadmissible “writing” for the sole purpose of refreshing the recollection of a witness. Second, the opponent can then introduce those portions of the  writing that relate to the testimony of the witness, but solely for the purpose of impeachment.

And that’s it. There doesn’t appear to be a mechanism for the prosecution to try to contextualize this impeachment unless a court were to graft a Rule 106 analysis onto Rule 612. But the language of Rule 612 seems to foreclose that.

-CM