Opinion

Elam v. Soares

  • 282 Or. 93
  • 577 P.2d 1336
  • 1978 Ore. LEXIS 835
Court
Oregon Supreme Court
Filed
Apr 18, 1978
Status
Published
Author
Howell
On the bench
Tongue, Howell, Lent, Bryson
Cited by
21 cases

“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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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