§ Rule 612. Writing or other item used to refresh memory
Rule 612. Writing or other item used to refresh memory
(a) Right to refresh memory and production of refreshing materials. A witness may use a writing or other item to refresh memory for the purpose of testifying. If the witness does so, 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 party is entitled to have the writing or other item produced at the hearing, trial or deposition, to inspect it, to cross-examine the witness on it and to introduce in evidence those portions that relate to the testimony of the witness.
(b) Redaction of writing or other item and sanctions. If it is claimed that the writing or other item contains matters not related to the subject matter of the testimony, the court shall examine it in camera, excise any portion not so related and order delivery of the remainder to the party entitled to it. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or other item is not produced or delivered pursuant to an order under this section, the court shall make any order justice requires, except that in criminal cases when the prosecution does not 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, or the court may use contempt procedures.
Comment: Pa.R.E. 612 and F.R.E. 612 are substantively equivalent, but differ somewhat in language and structure:
1. Pa.R.E. 612 covers the same subject matter as F.R.E. 612, but does so in two sections rather than one lengthy paragraph. The organization of Pa.R.E. 612 is derived, in part, from the Uniform Rules of Evidence, Rule 612 (1974).
2. Pa.R.E. 612 explicitly sets forth the right to refresh memory, which is implicit in the Federal Rule.
3. Pa.R.E. 612 does not include the reference to 18 U.S.C. § 3500 (the Jencks Act) appearing in the Federal Rule, because it is inapposite.
4. Pa.R.E. 612 uses the phrase “writing or other item” where the Federal Rule uses the term “writing.”
5. Pa.R.E. 612(a) includes the words “trial or deposition” after the word “hearing” primarily to make clear that the rule applies to depositions. The addition of “trial” is for completeness.
6. The last sentence of Pa.R.E. 612(b) uses the phrase “prosecution does not” instead of the phrase “prosecution elects not to,” which appears in the Federal Rule. Additionally, Pa.R.E. 612(b) adds “contempt procedures” to the sanctions usable in criminal cases listed in the Federal Rule.
Section (a)--The right to refresh a witness' memory is well established in Pennsylvania. See Commonwealth v. Payne, 455 Pa. 503, 317 A.2d 208 (1974). Although usually the witness' memory is refreshed by a writing, most courts recognize that many other things, such as photographs, can spur the memory. 1 McCormick, Evidence § 9 (4th ed. 1992) (“any memorandum or other object may be used as a stimulus to present memory, without restriction by rule as to authorship, guarantee of correctness or time of making.”) The addition of the words “or other item” in section (a) takes this into account.
This is consistent with Pennsylvania law. See Dean Witter Reynolds, Inc. v. Genteel, 346 Pa. Super. 336, 499 A.2d 637 (1985); Commonwealth v. Fromal, 202 Pa. Super. 45, 195 A.2d 174 (1963). An item may be used to refresh memory even though it is inadmissible in evidence. See Commonwealth v. Weeden, 457 Pa. 436, 322 A.2d 343 (1974); Panik v. Didra, 370 Pa. 488, 88 A.2d 730 (1952); Dean Witter, 346 Pa. Super. at 344, 494 A.2d at 641.
The procedures for refreshing a witness' memory are reviewed in Commonwealth v. Proctor, 253 Pa. Super. 369, 385 A.2d 383 (1978).
Pa.R.E. 612(a) gives the adverse party access to the item used to refresh the witness' memory while the witness is testifying. This is consistent with Pennsylvania law. See Commonwealth v. Proctor, supra; see also Commonwealth v. Allen, 220 Pa. Super. 403, 289 A.2d 476 (1972). The rule protects against the risk that the item used to refresh memory may suggest testimony to the witness instead of refreshing present recollection. Production of the item to the adverse party is discretionary with the court, however, when it is used to refresh memory before testifying. See Commonwealth v. Samuels, 235 Pa. Super. 192, 340 A.2d 880 (1975); Commonwealth v. Fromal, 202 Pa. Super. 45, 195 A.2d 174 (1963).
Pa.R.E. 612(a), like F.R.E. 612(a), specifically provides that the adverse party may use the item in cross-examination and may introduce the item into evidence. There is no prior Pennsylvania authority on the issue of the item's admissibility. By admitting the item into evidence, the trier of fact can put the whole matter--what the witness was shown, how the witness testified on direct and cross examination--in proper context. The evidence is received for impeachment purposes only unless it comes within one of the exceptions to the hearsay rule in Pa.R.E. 803, 803.1 and 804(b).
Pa.R.E. 612(a) is not intended to change the rule that in a criminal case, written statements made by a witness to police prior to trial must be given to the defendant following the testimony of the witness on direct examination, even if the statements were not used to refresh memory. Commonwealth v. Kantos, 442 Pa. 343, 276 A.2d 830 (1971).
Pa.R.E. 612(a), unlike the Federal Rule, explicitly applies to deposition testimony. Most of the cases have applied the Federal Rule to depositions based upon Fed.R.Civ.P. 30(c), which states: “Examination and cross-examination of witnesses [at a deposition] may proceed as permitted at trial under the provisions of the Federal Rules of Evidence.” 28 Wright & Gold, Federal Practice and Procedure § 6183 (1993); see, e.g., Sporck v. Peil, 759 F.2d 312 (3d Cir. 1985).
There are no Pennsylvania cases on this point and the Pennsylvania Rules of Civil Procedure do not have a provision similar to Fed.R.Civ.P. 30(c). In Pennsylvania, however, an adverse party's need for access to the item used to refresh memory is as great at a deposition as at trial because Pennsylvania statutes and procedural rules provide in certain circumstances for the introduction of deposition testimony at trial. Moreover, because the rule allows deposition testimony to be challenged, any suggestion arising from the refreshing can be exposed immediately and eliminated at the time of trial.
Pa.R.E. 612(a), like F.R.E. 612, applies to the use of a writing or other item to refresh memory “for the purpose of testifying.” In the Federal Rule, the phrase was intended “to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness.” F.R.E. 612 advisory committee notes; see, e.g., Sporck v. Peil, supra (deposition witness examined large number of documents, selected by counsel, in preparation for testifying at deposition).
Section (b)--Except for the changes concerning sanctions in criminal cases when the prosecution fails to comply with an order to produce, Pa.R.E. 612(b) is the same as the last three sentences of F.R.E. 612. An adverse party has rights only to those parts of any materials used to refresh memory that bear upon the witness' testimony. When the party who did the refreshing contends that some part of what the witness was shown goes beyond the scope of the testimony, Pa.R.E. 609(b) requires the court to make an in camera inspection and to remove any extraneous matter. Of course, what is excised must be preserved in the event that the redaction is challenged on appeal. This is a well recognized technique.
The last sentence of Pa.R.E. 612(b) targets what will likely be the rare case of a failure to comply with an order to produce. In a civil case, the court is given broad discretion. The problem is akin to the failure of a party to comply with discovery orders, for which Pa.R.Civ. P.4019 provides a wide range of sanctions. Similarly, under Pa.R.E. 609(b), the court may employ a sanction best calculated to remedy the harm caused by the failure to produce.