TITLE SIX — WITNESSES
Rule 612. Writing or Object Used to Refresh Memory
While Testifying.
General Rule. When a testifying witness’s memory is exhausted as to a matter about which he or she once had knowledge, the witness’s memory may be refreshed, in the presence of the jury, with any writing or other object that permits the witness to further testify from his or her own memory.
Production and Use.
When a testifying witness uses a writing or object to refresh his or her memory, an adverse party is entitled to the production of the writing or object after it is shown to the witness and before cross-examination, even if it contains information subject to work-product protection.
A party entitled to the production of a writing or object under this section is entitled to examine the writing or so much of it as relates to the case on trial, may cross-examine about it, and may introduce it in evidence to show that it could not or did not aid the witness in any legitimate way.
Before Testifying.
Production. If, before testifying, a witness uses a writing or object to refresh his or her memory for the purpose of testifying, an adverse party has no absolute right to the production and inspection of the writing or object. The trial judge, however, in his or her discretion, may, at the request of the adverse party, order production of the writing or object at the trial, hearing, or deposition in which the witness is testifying if it is practicable and the interests of justice so require.
Admissibility. Where the adverse party at trial calls for a writing or other object from his or her opponent that was used to refresh the witness’s memory prior to trial, does so in front of the jury, and receives and examines it, the writing or other object may be offered in evidence by the producing party when necessary to prevent the impression of evasion or concealment, even though it would have been incompetent if it had not been called for and examined.
Suppressed Statement. If, before testifying in a criminal case, a witness uses a suppressed statement to refresh his or her memory for the purpose of testifying, the judge must conduct a voir dire to establish that the witness has a present recollection of the event to which he or she is testifying.
Foundation and Procedure.
Predicate. Before a writing or object is used to refresh memory, the examining party shall establish upon the record that the witness once had knowledge of the matter, that the witness’s present memory of it is exhausted or incomplete, and that the writing or object may assist the witness in recalling it.
Anything May Refresh. The writing or object need not be admissible in evidence, need not have been made or adopted by the witness, and need not be accurate. Its only office is to revive the witness’s memory.
The Testimony Is the Evidence. After the witness’s memory is refreshed, the witness shall testify from present memory. The witness shall not read from the writing, and neither the writing nor the object is evidence unless it is offered and admitted under subdivision (1)(b)(ii) or under some other rule. A record which the witness cannot recall even after consulting it may be admissible as a past recollection recorded under Rule 803(2).
Objection. A party may object that the witness’s memory has not in fact been refreshed and that the witness is reciting the writing rather than testifying. The court shall determine the question and may examine the witness for that purpose.
Refreshing Memory in the Proceeding Communications.
Manner. Where the examination is conducted in the proceeding communications, the writing shall be transmitted to the witness and, at the same time, to opposing counsel and to the court. The witness shall be directed to read it, to state when memory is refreshed, and to state that the witness then recalls the matter.
Withdrawal from View. After the witness states that memory is refreshed, the examining party shall cease to display the writing to the witness before resuming the examination. The court may direct the manner in which this is accomplished.
Record. The fact that a writing was used to refresh memory, its identification, and the time of its use shall be entered upon the record, whether or not the writing is thereafter offered in evidence.
Claims of Privilege. A claim that a writing produced under subdivision (1)(b)(i) or ordered produced under subdivision (2)(a) is privileged under Title Five shall be made when the production is called for, and shall be determined by the court. Work-product protection is not a ground for withholding a writing used to refresh memory while testifying. Where another privilege is claimed, the court shall examine the writing, and may direct the producing party to produce only so much of it as relates to the case on trial, the whole being retained by that party for the purposes of review.
Failure to Produce. Where a party fails to produce a writing or object required to be produced under this rule, the court may strike the testimony of the witness in whole or in part, may prohibit the party from making any use of the matter, may instruct the fact finder that it may draw an inference unfavorable to the party from the failure, and may impose any other sanction available under Rule 103(7), Rid. R. Civ. P. 26.3, or Rid. R. Crim. P. 48. Where the writing or object has been destroyed or altered, Rule 1101 also applies.