Federal Rules of Evidence – Rule 612 (through March 1, 2020)
You can refresh a witness’s memory with a writing. If you do, opposing counsel is usually entitled to inspecting the relevant parts.
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory: (1) while testifying; or (2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. Any portion deleted over objection must be preserved for the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or — if justice so requires — declare a mistrial.
Selected Committee Notes
The treatment of writings used to refresh recollection while on the stand is in accord with settled doctrine. McCormick §9, p. 15. The bulk of the case law has, however, denied the existence of any right to access by the opponent when the writing is used prior to taking the stand, though the judge may have discretion in the matter. Goldman v. United States, 316 U.S. 129, 62 S.Ct. 993, 86 L.Ed. 1322 (1942); Needelman v. United States, 261 F.2d 802 (5th Cir. 1958), cert. dismissed 362 U.S. 600, 80 S.Ct. 960, 4 L.Ed.2d 980, rehearing denied 363 U.S. 858, 80 S.Ct. 1606, 4 L.Ed.2d 1739, Annot., 82 A.L.R.2d 473, 562 and 7 A.L.R.3d 181, 247. An increasing group of cases has repudiated the distinction, People v. Scott, 29 Ill.2d 97, 193 N.E.2d 814 (1963); State v. Mucci, 25 N.J. 423, 136 A.2d 761 (1957); State v. Hunt, 25 N.J. 514, 138 A.2d 1 (1958); State v. Desolvers, 40 R.I. 89, 100, A. 64 (1917), and this position is believed to be correct. As Wigmore put it, “the risk of imposition and the need of safeguard is just as great” in both situations. 3 Wigmore §762, p. 111. To the same effect is McCormick §9, p. 17.
The purpose of the phrase “for the purpose of testifying” is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party’s files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.
The purpose of the rule is the same as that of the Jencks statute, 18 U.S.C. §3500: to promote the search of credibility and memory. The same sensitivity to disclosure of government files may be involved; hence the rule is expressly made subject to the statute, subdivision (a) of which provides: “In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of a subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” Items falling within the purview of the statute are producible only as provided by its terms, Palermo v. United States, 360 U.S. 343, 351 (1959), and disclosure under the rule is limited similarly by the statutory conditions. With this limitation in mind, some differences of application may be noted. The Jencks statute applies only to statements of witnesses; the rule is not so limited. The statute applies only to criminal cases; the rule applies to all cases. The statute applies only to government witnesses; the rule applies to all witnesses. The statute contains no requirement that the statement be consulted for purposes of refreshment before or while testifying; the rule so requires. Since many writings would qualify under either statute or rule, a substantial overlap exists, but the identity of procedures makes this of no importance.
The consequences of nonproduction by the government in a criminal case are those of the Jencks statute, striking the testimony or in exceptional cases a mistrial. 18 U.S.C. §3500(d). In other cases these alternatives are unduly limited, and such possibilities as contempt, dismissal, finding issues against the offender, and the like are available. See Rule 16(g) of the Federal Rules of Criminal Procedure and Rule 37(b) of the Federal Rules of Civil Procedure for appropriate sanctions.
Key Rules (MBE/MEE)
- FRE 103 – Evidence Rulings
- FRE 105 – Limiting How Evidence may be Used
- FRE 106 – Completeness Rule
- FRE 201 – Judicial Notice
- FRE 301 – Presumptions
- FRE 401 – Relevance
- FRE 402 – Irrelevant = Inadmissible
- FRE 403 – Excluding the Prejudicial, Confusing, etc.
- FRE 404 – Character Evidence
- FRE 405 – Proving Character
- FRE 406 – Habit, Routine
- FRE 407 – Subsequent Remedial Measures
- FRE 408 – Compromise Negotiations
- FRE 409 – Offers to Pay Expenses
- FRE 410 – Pleas, Related Statements
- FRE 411 – Liability Insurance
- FRE 412 – Victim’s Sexual Predisposition
- FRE 413, 414, 415 – Other Sex-Related Rules
- FRE 502 – Attorney-Client Privilege, Work-Product Doctrine
- FRE 601 – Witness Competency
- FRE 602 – Personal Knowledge
- FRE 605 – Judge as Witness
- FRE 606 – Juror as Witness
- FRE 607 – Impeachment
- FRE 608 – Honest, Dishonest Character
- FRE 609 – Evidence of Criminal Conviction
- FRE 610 – Religious Beliefs
- FRE 611 – Mode, Order of Evidence
- FRE 612 – Recollection Refreshed
- FRE 613 – Prior Statements
- FRE 614 – Court Witness Examination
- FRE 615 – Excluding Witnesses
- FRE 701 – Non-Expert Opinion
- FRE 702 – Expert Opinion
- FRE 703 – Bases of Expert Opinion
- FRE 704 – Ultimate Issue
- FRE 705 – Disclosing Underlying Data
- FRE 801 – Hearsay Defined
- FRE 802 – Rule Against Hearsay
- FRE 803 – Strong Hearsay Exceptions
- FRE 804 – Weak Hearsay Exceptions
- FRE 805 – Double Hearsay
- FRE 806 – Impeaching Hearsay Declarants
- FRE 807 – Residual Hearsay Exception
- FRE 901 – Authentication, Identification
- FRE 902 – Self-Authenticating Evidence
- FRE 1001 – Original Defined
- FRE 1002 – Original Sometimes Required
- FRE 1003 – When Copies Generally Admissible
- FRE 1004 – Other Times Admissible
- FRE 1005 – Public Record Copies Often Admissible
- FRE 1006 – Summaries
- FRE 1007 – Acknowledged Content
- FRE 1008 – Functions of Court, Jury
- FRE 1101 – Rules’ Applicability