Pennsylvania Code & Bulletin
COMMONWEALTH OF PENNSYLVANIA

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225 Pa. Code 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.

Comment

   Pa.R.E. 612 differs from F.R.E. in several ways:

   Pa.R.E. 612 applies to writings and other items. This would include such things as photographs, videos, and recordings. F.R.E 612 applies only to writings. The Pennsylvania rule is consistent with prior law. See Commonwealth v. Proctor, 253 Pa. Super. 369, 385 A.2d 383 (1978).

   Pa.R.E. 612(a) states that a witness or a party has a right to refresh recollection. This is not expressly provided by F.R.E. 612.

   Pa.R.E. 612(b) reorganizes the material that appears in F.R.E. 612(a) and the first sentence of F.R.E. 612(b) for clarity, includes the word ‘‘deposition’’ to clarify that the rule is applicable both at hearings and depositions, and deletes reference to 18 U.S.C. §  3500.

   Paragraph (c) differs from the second sentence of F.R.E. 612(b) in that it refers to other items as well as writings.

   Paragraph (d) differs from F.R.E. 612(c) in that it adds the phrase ‘‘or the court may use contempt procedures’’.

   Official Note

   Adopted May 8, 1998, effective October 1, 1998; amended March 23, 1999, effective immediately; rescinded and replaced January 17, 2013, effective March 18, 2013.

   Committee Explanatory Reports:

   Final Report explaining the March 23, 1999 technical amendments to paragraph (a) published with the Court’s Order at 29 Pa.B. 1714 (April 3, 1999).

   Final Report explaining the January 17, 2013 rescission and replacement published with the Court’s Order at 43 Pa.B. 651 (February 2, 2013).

Source

   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. Immediately preceding text appears at serial pages (254215) to (254216) and (265699).



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