Rule 612. Writing Used to Refresh a Witness'S Memory

(a) While testifying. If a witness uses a writing or object to refresh his or her memory while testifying, the adverse party is entitled to production of the writing or object at the time.

(b) Before testifying. If a witness uses a writing or object to refresh his or her memory before testifying, the court may require production of the writing or object in the interests of justice.

(c) Terms and conditions.

(1) If a party is entitled to production of a writing or object under this rule, that party may inspect it, cross-examine the witness about it, and introduce relevant parts of it in evidence.

(2) If a party claims that the writing contains material that is irrelevant to the witness's testimony, the court must examine the writing in camera, remove any irrelevant portions, and order production of the rest of the writing. The court must preserve any portion of the writing that is withheld under this subsection, and must provide it to the appellate court if there is an appeal.

(d) Failure to produce or deliver the writing. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. But if the state does not comply in a criminal case, the court must strike the witness's testimony or may—if justice so requires—declare a mistrial.

Committee Notes

Maine Restyling Note [November 2014] Maine Rule 612 is somewhat different from its federal counterpart. The proposed restyled Rule maintains those differences.

Federal Restyling Committee Note The language of Rule 612 has been amended as part of the restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. These changes are intended to by stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Advisers' Note to former M.R. Evid. 612 (February 2, 1976) Subdivision (a) deals with refreshing the recollection of a witness while testifying, as is presently permitted under Maine law. Cope v. Sevigny, 289 A.2d 682 (Me. 1972). Subdivision (b) gives the court a discretionary power in the interests of justice to require production of a writing used by a witness to refresh his memory before testifying. There appears to be no precedent for this in Maine case law but it should be an aid to bringing out the truth. Subdivision (c) covers the terms and conditions of production and use of a writing produced under the rule. The reference to the preservation for appeal of portions of a writing excised after examination in camera is derived from 18 U.S.C. § 3500 (the Jencks Act). There appear to be no reported federal cases dealing with such an appeal. The Federal Rule is different in wording but not greatly different as a substantive matter. It does not include "object" as well as "writing". This rule, following the Uniform State Law, is a clearer statement.