RULE 612 - Writing or Other Item Used to Refresh a Witness's Memory

RULE 612. Writing or Other Item Used to Refresh a Witness's Memory

(a) Right to Refresh Memory. A witness may use a writing or other item to refresh memory for the purpose of testifying while testifying, or before testifying.

(b) Rights of Adverse Party.

(1) If a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.

(2) If a witness uses a writing or other item to refresh memory before testifying, and the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have it produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness's testimony.

(c) Rights of Producing Party. If the producing party claims that the writing or other item includes unrelated matter, the court must examine it 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.

(d) Failure to Produce or Deliver. If the writing or other item 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, or the court may use contempt procedures.

(The provisions of this Rule 612 amended March 23, 1999, effective immediately, 29 Pa.B. 1712; rescinded and replaced January 17, 2013, effective in sixty days, 43 Pa.B. 620.)

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