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ARTICLE VI. WITNESSES

Table of Contents

Article I. General Provisions
Article II. Judicial Notice
Article III. Presumptions
Article IV. Relevancy and Its Limits
Article V. Privileges
Article VI. Witnesses
Rule 602
Rule 608
Rule 609
Rule 612
Rule 613
Rule 616
Article VII. Opinions and Expert Testimony
Article VIII. Hearsay
Article X. Contents of Writings, Recordings,
and Photographs

Revised Rule 612. Writing Used to Refresh Memory [changes highlighted]

       Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either

       (1) while testifying, or

       (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

[an adverse] any party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence, for the purpose of establishing similarities between the witness' testimony and the writing, those portions which relate to the testimony of the witness. If the writing used is protected by the attorney-client privilege, use of the writing to refresh recollection prior to trial does not constitute a waiver of that privilege. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order the delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

Click here to see commentary on Revised Article 612.

Revised Rule 612. Writing Used to Refresh Memory [clean copy]

       Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either

       (1) while testifying, or

       (2) before testifying, if the court in its discretion determines it is necessary in the interests of justice,

any party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence, for the purpose of establishing similarities between the witness' testimony and the writing, those portions which relate to the testimony of the witness. If the writing used is protected by the attorney-client privilege, use of the writing to refresh recollection prior to trial does not constitute a waiver of that privilege. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order the delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.

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