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Article

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Some Observations on the Law of Evidence -- Memory (with Robert M. Hutchins), 41 Harvard Law Review 860 (1928)

Abstract

The common legal assumptions in regard to memory come

most clearly to the surface in the rules governing present

recollection revived, past recollection recorded, and cross-examination

to impeach. Between the first two, sharp distinctions are

drawn which result partly from the fact that a memorandum used

to refresh recollection generally does not go to the jury as evi dence

- whereas a memorandum of past recollection does - and

partly from the psychological theories of the courts. Thus a

federal judge lately remarked:

"It is one thing to awaken a slumbering recollection of an event, but

quite another to use a memorandum of a recollection, fresh when it was

correctly recorded, but presently beyond the power of the witness so to

restore that it will exist apart from the record. In the former case it is

quite immaterial by what means the memory is quickened; it may be a

song, or a face, or a newspaper item, or a writing of some character. It

is sufficient that by some mental operation, however mysterious, the

memory is stimulated to recall the event, for when so set in motion it

functions quite independently of the actuating cause."

Date of Authorship for this Version

1928

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