Rule 612 Writing Used to Refresh a Witness’s Memory

(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.

EVIDENCE CITE AS: NMI R. EVID. EFFECTIVE FEBRUARY 22, 2015

(b) Adverse Party’s Options; Deleting Unrelated Matter. Unless the Commonwealth Rules of Criminal Procedure provide 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.

*Revision Committee Note: Subdivision (b) of the correlating federal evidence rule cites to the Jencks Act, 18 U.S.C. § 3500, which does not apply in Commonwealth Courts. However, Rule 26.2 of the Commonwealth Rules of Criminal Procedure contains many of the same provisions as the Jencks Act. Certain writings could be governed by both this rule and Rule 26.2 of the Commonwealth Rules of Criminal Procedure. Thus, in criminal cases, both rules should be consulted. The Committee elected not to include a citation to Rule 26.2 in the body of this rule to ensure consistency between these rules and any future amendments to the Commonwealth Rules of Criminal Procedure.