Evidence given in the form of testimony is perhaps the most basic type of evidence. Testimonial evidence consists of what a competent witness at the proceeding in question says in court. Generally, witnesses are competent if they meet four broad requirements:
- The witnesses must take the oath or a substitute and understand the oath,
- The witnesses must have personal knowledge about the subject of their testimony.
- The witnesses must recall what was perceived
- The witnesses must be able to communicate what they perceived
The courts interpret competency quite liberally, which means that testimony based on the competency of a witness is rarely excluded
If at trial witnesses forgets their testimony, the attorney may help to refresh their memory in four ways:
- First, the attorney can ask the judge for a recess to allow the witnesses time to calm down or otherwise collect themselves.
- Second, the attorney can ask the witnesses a leading question to try to refresh their memory.
- Third, the attorney can attempt to refresh the witness’s recollection through a process known as past recollection refreshed. The witnesses must first say that they cannot remember the facts the attorney is trying to elicit from them. Then they must say that the refreshing object might help him them to remember. Almost anything that they says might help them can be used to help refresh their memory such as notes, photographs, an item of clothing, a smell, or some other object of some sort.
- Fourth, the attorney can offer a writing as a past recollection recorded. The witnesses must first claim that they cannot remember the facts the attorney is trying to elicit from her. Next, the attorney presents the writing or other recording the attorney intended to use for the witness. If the attorney can refresh the witness’s memory, they will be allowed to answer the question. If the writing does not refresh their memory, they must then identify the writing as one that they made or saw when hey did remember the fact in question and that they knew then that the writing was accurate.