Rule 612 Writing used to refresh memory. If a witness uses a writing to refresh the witness' memory for the purpose of testifying, 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 produced at the hearing, 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 it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing 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 is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when 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. [L 1980, c 164, pt of 1; gen ch 1985]

 

RULE 612 COMMENTARY

 

This rule is identical with Fed. R. Evid. 612, except that the federal rule begins with the phrase, "Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code," and this phrase is omitted here as inappropriate. The Advisory Committee's Note to Fed. R. Evid. 612 points out that "[t]he purpose of the rule is ... to promote the search of credibility and memory."

This rule restates existing Hawaii law found in State v. Altergott, 57 H. 492, 503, 559 P.2d 728, 736 (1977), where the court observed: "A writing which is used to refresh the recollection of a witness, it is said by Wigmore, differs from a record of past recollection in being in no strict sense evidence, so that the offering party has no right to have the jury see it although the opponent may show it to the jury and the jury may demand it." In other words, the writing used to refresh memory is not evidence, and therefore does not present hearsay problems, because, after refreshing, the witness testifies from present memory, and the writing serves merely as a jog to present memory. If the witness has no present memory, as in the case where the attempt to refresh under this rule is unsuccessful, then the admissibility of the writing is governed by hearsay doctrine (especially Rule 802.1(4), "Past recollection recorded") and the authentication and original document requirements of Articles IX and X.

 

Case Notes

 

Although recitation by complainant of police report describing the cell phone text messages would have been inadmissible hearsay under rules 802.1(4) and 803(b)(8), where complainant could recall substantial details about the messages prior to reading the report, which suggested that complainant possessed a memory of the messages that only needed refreshment via the report, complainant properly testified about the text messages after viewing the police report pursuant to this rule. 117 H. 127, 176 P.3d 885 (2008).

Officer had sufficient personal knowledge, under rule 602, of intoxilyzer test officer administered to defendant and was thus competent to testify as to test results; when officer could not remember exact reading of test result, it was proper under this rule for State to allow officer to review defendant's test result report and refresh officer's present recollection of defendant's exact score. 95 H. 409 (App.), 23 P.3d 744 (2001).

 

 

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