In my last column,¹ I discussed New York's collateral evidence rule which bars the contradiction of a witness's answers concerning collateral matters by the introduction of extrinsic evidence for the sole purpose of impeaching credibility. This discussion was made in the context of two different situations: an effort to establish the witness's commission of a “bad act” which the witness has denied committing; and to contradict the witness, e.g., establish a factual error in the witness's testimony, which error does not relate to a material issue in the action. This discussion generated many thoughtful comments about the collateral evidence rule as well as questions regarding its application in specific situations. Gauged by this response, there is considerable interest in this topic, and thus this column will address some of the comments and questions I received.

Refreshing Recollection

A question raised by several readers is whether the collateral evidence rule bars an attorney from using a writing, which contains information contradicting the witness's denial or lack of memory of the charged bad act or factual error, to refresh the witness's recollection about the matter. It does not.

New York's refreshing recollection doctrine provides that if a witness has personal knowledge of a relevant fact, but while testifying has difficulty in recalling it, the witness may use any writing or object to stimulate the witness's recollection, and may thereafter testify to the fact from his or her own memory.² Under these circumstances, since the testimony as refreshed still comes from the mouth of the witness, and the writing or object is not offered into evidence, no extrinsic evidence is involved and thus the collateral evidence rule does not come into play.³ However, some words of caution when using the doctrine are in order lest the rule be violated.