“The use of a writing to refresh present recollection does not make it admissible in evidence. The witness’s independent recollection is the evidence — not the writing which aided in refreshing that recollection.” (Citations omitted.)
How later courts described this case
- “The use of a writing to refresh present recollection does not make it admissible in evidence. The witness’s independent recollection is the evidence — not the writing which aided in refreshing that recollection.” (Citations omitted.)
Written by the judges who cited it.
The opinion
HOWELL, J.,
specially concurring.
I acknowledge that this court on several occasions has stated that error occurring during the trial is "presumed” or "deemed” to be prejudicial upon appeal. I believe that such error should not be presumed to be either prejudicial or harmless. Our function should be to determine (1) whether error was committed and (2) if so, does the error require reversal. That decision should be made without any presumptions.
Lent, J., joins in this opinion.