Refresher: How Rule 612 Treats Prosecutors Differently Than Any Other Party

In most cases, the Federal Rules of Evidence cover the exact same ground in criminal trials and civil trials. The Rules also usually treat civil plaintiffs no differently than civil defendants and prosecutors no differently than criminal defendants. There are, however, some notable differences, one of which I realized when teaching Federal Rule of Evidence 612 to my students yesterday.

Federal Rule of Evidence 612 covers ths use of "writings" to refresh a witness's recollection. Assume that Dan and Vince get into a fight that leads to (1) the prosecution charging Dan with battery; and (2) Vince bringing a civil action against Dan. At either trial, Ed might be called as an eyewitness and lack a complete recollection of the fight. Thereafter, whichever party called him might seek to refresh his recollection through some "writing," whether it be a text message, a handwritten note, or an affidavit. Then, if the "writing" refreshed his recollection, Ed could testify without the aid of the "writing."

Federal Rule of Evidence 612(b) in turn states that

Unless 18 U.S.C. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. If the producing party claims that the 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.

Moreover, Federal Rule of Evidence 612(c) states that

If a writing 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.

So, assume that Dan calls Ed at the civil or criminal trial and uses a text message to refresh his recollection or that Vince calls him at the civil trial and does the same. If Dan or Vince then fails to produce the test message, Rule 612(c) states that the judge "may issue any appropriate order." On the other hand, if the prosecution calls Ed, does the same thing, and fails to produce he test message, the judge "may issue any appropriate order" but "must strike the witness's testimony."

-CM