RULE 612. WRITING OR OBJECT USED TO REFRESH A WITNESS'S MEMORY
(a) While testifying. If, while testifying, a witness uses a writing or object to
memory, an adverse party is entitled to have the writing or object produced at the trial,
hearing, or deposition in which the witness is testifying.
(b) Before testifying. If, before testifying, a witness uses a writing or object to
memory for the purpose of testifying and the court in its discretion determines that the
interests of justice so require, an adverse party is entitled to have the writing or object
produced, if practicable, at the trial, hearing, or deposition in which the witness is
(c) Terms and conditions of production and use. A party entitled to have a writing
produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and
to introduce in evidence those portions which relate to the testimony of the witness. If
production of the writing or object at the trial, hearing, or deposition is impracticable, the
court may order it made available for inspection. If it is claimed that the writing or object
contains matters not related to the subject matter of the testimony, the court shall examine
the writing or object in camera, excise any portions not so related, and order 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 or
object is not produced, made available for inspection, or delivered pursuant to order under
this rule, the court shall make any order justice requires, but in criminal cases if 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.
(a) Scope. This rule gives an adverse party certain options when a witness uses a writing or object to refresh memory:
(1) while testifying; or
(2) before testifying, if the court decides that justice requires the party to have those options.
(b) Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing or object produced at the trial, hearing, 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. But if production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection. If the producing party claims that a 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 or Object. If a writing or object 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.
Rule 612 was amended, effective March 1, 1990; March 1, 2014.
Rule 612 is identical to Rule 612 of the Uniform Rules of Evidence, (1974). The rule varies
from its federal counterpart in
structure, and in that it applies to objects as well
writings. It was felt that objects used to refresh the memory of a witness, such as a recording
tape, should be subject to production. This rule also departs from the federal rule by
explicitly providing for inspection of writing or object at its location if production of the
writing or object at trial is impracticable.
Subdivisions (a) and (b) were amended, effective March 1, 1990. The amendments are technical in nature and no substantive change is intended.
Rule 612 was amended, effective March 1, 2014, in response to the December 1, 2011, revision of the Federal Rules of Evidence. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules. There is no intent to change any result in any ruling on evidence admissibility.
Sources: Joint Procedure Committee Minutes
: of April 26-27, 2012,
page 26; March 24-25,
1988, page 12; December 3, 1987, pages 15-16; June 3, 1976, page 3. Fed.R.Ev. 612;
612, Uniform Rules of Evidence (1974); Rule 612, SBAND proposal.
Considered: Rule 16(h), NDRCrimP.
Cross Reference: N.D.R.Crim.P. 16 (Discovery and Inspection).