Not So Refreshing: New Jersey Opinion Reveals Key Difference Between Federal And New Jersey Rule of Evidence 612

Federal Rule of Evidence 612 indicates that:

Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh 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.

As the recent opinion of the Superior Court of New Jersey, Appellate Division, in State v. Kirk, 2009 WL 4547584 (N.J.Super.A.D. 2009), makes clear, there is an important distinction between New Jersey Rule of Evidence 612 and its federal counterpart.

Now, the facts in Kirk itself were pretty confusing and involved a co-defendant's admission which otherwise would have been inadmissible under the Bruton doctrine, but which the prosecution was allowed to use to refresh the recollection of the other defendant after he opened the door by referencing the confession himself. The court's opinion found some problems with the method of refreshment used by the prosecution but ultimately affirmed the defendant's conviction. All that I really care about, though, is that the court referenced New Jersey Rule of Evidence 612, which indicates that:

Except as otherwise provided by law in criminal proceedings, if a witness while testifying uses a writing to refresh the witness' memory for the purpose of testifying, an adverse party is entitled to have the writing produced at the hearing for inspection and use in cross-examining the witness. The adverse party shall also be entitled to introduce in evidence those portions which relate to the testimony of the witness but only for the purpose of impeaching the witness. If it is claimed that the writing contains material not related to the subject of the testimony, the court shall examine the writing in camera and excise any unrelated portions. If the witness has used a writing to refresh the witness' memory before testifying, the court in its discretion and in the interest of justice may accord the adverse party the same right to the writing as that party would have if the writing had been used by the witness while testifying. (emphasis added).

As the bolded language makes clear, when a party uses a(n otherwise inadmissible) "writing" to refresh the recollection of a witness under New Jersey Rule of Evidence 612, the opposing party can only introduce those portions which relate to the testimony of the witness for the purpose of impeaching the witness. Conversely, when a party uses a(n otherwise inadmissible) "writing" to refresh the recollection of a witness under Federal Rule of Evidence 612, the opposing party can introduce those portions which relate to the testimony of the witness for the purpose of impeaching the witness and to prove the truth of the matter asserted in the "writing."

Contrasting the two Rules, I think that I agree more with the federal rule. If a party is going to use a "writing" to refresh the recollection of a witness and allow the witness to provide substantive testimony, I think that opens the door for the adverse party to use the "writing" substantively if the "writing" would help its case. 

-CM