Refreshing Memory by Witness:
Refreshing Memory by Witness
A witness is a person invited by a party in a suit to give testimony in his favour. He is a person who knows about the transaction between the parties that gave rise to the legal suit. The witness can merely be called up by a party to come and testify in the case or he may be compelled by the court through a subpoena to come and testify in the case. The witness shall be expected to testify all that he knows in the case while giving his testimony in favor of the party that invited him.
The witness shall first be examined in chief by the party that invited him and this is what is called Examination in chief and after that the opposing counsel will then cross examine the witness based on his testimony during his examination in chief and the party that invited him shall also be entitled to re-examine the witness, if he ever wants to clarify any ambiguity in his testimony.
The witness testifying in the court is a human being and he’s bound to forget certain things. The court is aware of this and may permits him to refresh his mind while giving testimony in the court. It may be asked; does this affect the credibility of the evidence of the witness? to us, it does not. The instance of the witness refreshing his memory in the court over a particular testimony is usually necessary when the witness needed to recollect some things that happened in the past which may be paramount in the case he is testifying on.
It is not in all times, that the witness will be permitted by the court to refresh his memory before testifying, for example if the event or the thing that he needed to refresh memory on happened within a short period of time that he would have recollected everything, it will be obsolete for the court to grant the application of the witness refreshing his memory through an audio or written document.
The witness is a human being and only has a memory that can store a record for a particular period, however a written document can easily help a person to remember certain things. The witness can inform the court that he wants to refresh his memory from a document and it may be granted by the court.
Evidence Act being the extant law that governs proceeding and the admissibility of evidence in Nigeria Legal system lucidly provided that a witness can demand to refresh his memory while giving his testimony in the court.
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In accordance to the provision of section 239 of the Evidence Act, the witness shall be entitled to refresh his memory during examination over a transaction that occurred over a far period. The witness must also establish that the transaction was fresh in his memory when the document was prepared. It shall only be important that the court grants the application, because the primary duty of the court is to do justice based on the available evidence.
The court may also permit an expert to refresh his memory while giving testimony by allowing him to refresh his memory through professional treaties.
The main occupation of the court in any trial, particularly criminal trials, is to discover the truth and do justice thereby. Thus, where an event had taken place for a long time such that it becomes difficult for a witness to recollect any detail, such a witness is permitted to refer to any document made by him or any other person for purpose of refreshing his memory. This refreshing of memory may take place at any stage of examination. That is, it may be at the stage of examination-in chief or cross-examination or re-examination.
It must be remembered always that the time at which the transaction in respect of which the witness seeks to refresh memory took place is very important. The reason is that it would make the court to know whether the event was still fresh in the memory of the witness at the time it was made. This is in addition to the fact that if that adverse party is not satisfied with the document, he has the right to be shown the writing, and if he so desires.