REFRESHING RECOLLECTION: FRE 612
Witnesses sometimes forget things. If this occurs at trial, we permit them to refresh their recollection.
The witness’s memory must be exhausted, or nearly exhausted, before a writing may be used to refresh recollection.
Admissibility. A writing does not become admissible solely because it is used to refresh a witness’s recollection. The opposing party, however, not only has the right to inspect the writing but also the right “to cross-examine the witness” on the writing and to introduce into evidence the parts that relate to the witness’s testimony. In this situation, the writing is used to impeach the witness’s credibility and not as substantive evidence.
The right of inspection is mandatory for trial refreshment. The production of a writing used prior to trial to refresh a witness’s recollection may be required “if the court in its discretion determines it is necessary in the interests of justice.”
Rule 612 does not apply to writings that are governed by the Jencks Act, 18 U.S.C. § 3500. Currently, Criminal Rule 26.2 governs this subject. Like the Jencks Act, it limits discovery of witnesses’ prior statements until after direct examination has been completed. In effect, it a trial (rather than a pretrial) discovery provision.
Whether the use of a writing to refresh a witness’s memory constitutes a waiver of privilege, including the qualified work product privilege, is unsettled.
In a criminal case in which the prosecution fails to produce a writing used to refresh memory, the court shall either strike the testimony or, if the interests of justice require, declare a mistrial. If a criminal defendant or a party in a civil case fails to produce a writing, the “court shall make any order justice requires.” This could include contempt, dismissal, or finding issues against the offender.