In a full-fledged opinion by Judge Smith, the Court of Appeals reversed defendant’s conviction because the trial judge refused to permit defense counsel to refresh a witness’s recollection with the witness’s prior statement.  Defendant had the victim in a headlock during a fight. The victim subsequently died.  A central issue at trial was how long defendant held the victim in a headlock.  One witness (Flynn) gave a statement indicating the headlock lasted 6 to 10 seconds.  The People did not call her.  The defense called her and she testified the headlock could have lasted “a minute or so.”  Defense counsel then attempted to refresh her recollection with her prior statement.  The trial court didn’t allow it, saying the witness had “given no indication she needs her memory refreshed:”

When a witness, describing an incident more than a year in the past, says that it “could have” lasted “a minute or so,” and adds “I don’t know,” the inference that her recollection could benefit from being refreshed is a compelling one.  More fundamentally, it was simply unfair to let the jury hear the “a minute or so” testimony -testimony damaging to the defense, from a defense witness’s own lips — while allowing the defense to make no use at all of an earlier, much more favorable, answer to the same question.  The trial court suggested to defense counsel that this was “an effort to impeach your own witness,” but counsel had not yet got to the point of impeachment; she only wanted to refresh the witness’s recollection.  And in any event, technical limitations on the impeachment of witnesses must sometimes give way, in a criminal case, to a defendant’s right to a fair trial (Chambers v Mississippi, 410 US 284 [1973]). People v Oddone, 236, CtApp 12-12-13