On November 4, 2011, the Virginia Supreme Court issued its opinion in the automobile accident appeal of Ruhlin v. Samaan, 282 Va. 371 (2011). It upheld the Circuit Court of Chesterfield County allowing use of the transcript of an insurer’s recorded telephone statement “to refresh a witness’s recollection”. Id. at 377-380.
“Code §8.01-404 prevents the impeachment of a witness by use of an affidavit, statement or transcript made after an accident but before trial,” observed the Court in the Ruhlin car crash case. Id. at 378. “Code §8.01-404 only prohibits the use of a written statement itself to directly impeach a witness.” Id. at 379.
But “[t]he act of refreshing a witness’s recollection does not involve contradicting that witness’s testimony,” delineated the Court in the Ruhlin vehicle collision matter. Id. (emphasis added). “Rather, ‘when a witness has a memory lapse on the stand and forgets some portion (or even all) of the facts of the matter about which [he or she is] called to testify, a party may attempt to refresh the witness’s memory by having the witness examine materials relating to the matter for which they are testifying’.” Id.
“After examining such [refreshing] materials, a witness may then ‘speak to the facts from his own recollection’.” Id. Indeed, the Ruhlin auto accident opinion noted that in 2004 the Virginia Supreme Court “held that Code §8.01-404 did not preclude the introduction of a witness’s prior written statement as a party admission in a plaintiff’s case-in-chief because, at that point in the trial, the statements were not being used to ‘contradict’ the witness.” Id.
