Fourteen Months and a Lost Notebook
Fourteen months ago you conducted surveillance in a child-custody case. You recorded notes in a phone app: times, addresses, vehicle movements, and a note that the subject 'appeared intoxicated - stumbled on curb, slurred speech' outside a restaurant at 9:15 p.m. Your phone was replaced three weeks later and the notes were not backed up. You wrote your report from memory three days after the surveillance. The report repeats the intoxication observation. The case is now at trial. The subject's lawyer has a video from a bystander's phone showing the subject walking steadily and speaking normally at 9:17 p.m. You are called to testify. You have your report but not your original notes. Opposing counsel asks whether you destroyed your notes and whether your report is accurate. The judge asks you to explain the discrepancy.
1. May you use your report to refresh your memory? What limits apply, given that the original notes are lost?
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You may use your report to refresh memory, but you must be careful: the report was made three days later, not contemporaneously, and the original notes are gone. Before testifying, review the report and the video, and tell the lawyer about the lost notes and the discrepancy. In the witness box, say what you actually remember and use the report only to refresh. If you cannot independently recall a detail, say so. Do not read the report into evidence as if it were your memory.
2. How should you answer opposing counsel's questions about the lost notes and the accuracy of your report?
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Explain the loss honestly: the notes were in a phone app, the phone was replaced, and they were not backed up. Do not say they were 'destroyed' unless that is true; do not minimize. Opposing counsel is entitled to explore the gap. Acknowledge that your report was written from memory and that the intoxication observation was a brief opinion, not a scientific conclusion. If the video shows steady walking and normal speech two minutes later, concede that it is inconsistent with 'stumbled' and 'slurred' if that is what you see. You can explain what you observed at the time, but do not argue with the video.
3. How should you handle the judge's request to explain the discrepancy? What is your duty to the court?
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The judge wants an explanation, not a performance. Be candid: 'I observed him at 9:15 and formed an impression; the video at 9:17 shows steadier movement; I cannot reconcile every detail.' Distinguish observation from conclusion. The duty is to the court, not to the client. If your report overstated the observation, say so. Consider preparing a supplementary note for the file, but do not alter the original report. Your credibility will survive an honest correction better than a defensive claim of perfect accuracy.