In Virginia, must a witness testify solely from his or her recollection or can the witness refer to documents while testifying?

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The below information was written by our personal injury lawyers in Virginia Beach.

During the course of a witness’s examination, a lawyer can refresh the witness’s recollection with a writing or anything else that stimulates the witness’s recollection. The material used to refresh the recollection of the witness does not have to be introduced into evidence, nor does it have to be admissible as evidence. However, the opposing side has the right to review the material reviewed by the witness and can use the material in the cross examination of the witness. Additionally, say our personal injury lawyers in Virginia Beach, the witness, whose memory has been refreshed, must be able to speak from his or her own memory after review of the source of the refreshment and cannot simply read the source of refreshment of his or her testimony, unless some exception to the hearsay rule applies which would allow the witness to read from the source of refreshment.

One exception to the hearsay rule that will allow a witness to read directly from a document is the recorded recollection exception. Regarding the recorded recollection exception to the hearsay rule, the Virginia Rules of Evidence state that a witness’s testimony read from a document is not excluded under the hearsay rule if the document satisfies the following requirements:

Except as provided by statute, a memorandum or record concerning a matter about which a witness once had firsthand knowledge made or adopted by the witness at or near the time of the event and while the witness had a clear and accurate memory of it, if the witness lacks a present recollection of the event, and the witness vouches for the accuracy of the written memorandum.

In personal injury cases, the recorded recollection exception to the hearsay rule is routinely applied when the plaintiff’s doctors are examined. Often the testifying doctor will be asked about treatment he or she provided to the injured plaintiff long before the day of trial. As a consequence, the plaintiff’s doctors often have no recollection of their examination and treatment of the plaintiff, and in such cases, the testifying doctors will be permitted to testify from their office notes.

Questions regarding the admissibility of evidence and what materials a witness can refer to during in his or her testimony are specific to the individual personal injury case, and we encourage you to contact one of our personal injury lawyers in Virginia Beach.   He can advise the prospective client as to what witnesses will be necessary if the personal injury case goes to trial and what testimony can be offered by the witnesses. As in all personal injury cases, an experienced personal injury lawyer can also advise the injured person as to the value of the injury claim, can guide the injured person through the process of making a claim with the applicable insurance company or companies, and can represent the injured person in the litigation of the personal injury claim, if a personal injury lawsuit becomes necessary.

Waiting can hurt your case. To find out how our personal injury lawyers in Virginia Beach can help you, please contact us at (757) 486-2700.

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