Miss. R. Evid. 612

As amended through March 21, 2024

Rule 612 - Writing Used to Refresh a Witness's Memory

(a)Scope. This rule gives an adverse party certain options when a witness uses a writing, recording, or object to refresh memory:

(1) while testifying; or

(2) before testifying, if the court decides that justice requires the party to have those options.

(b)Adverse Party's Options; Deleting Unrelated Matter. An adverse party is entitled to have the writing, recording, or object 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, recording, or object includes unrelated matter, the court must examine the writing, recording, or object 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.

(c)Failure to Produce or Deliver. If a writing, recording, or object 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.

Miss. R. Evid. 612

Amended effective 8/12/1992; restyled eff. 7/1/2016.

Advisory Committee Historical Note.

Effective August 12, 1992, Rule 612 was amended to allow recordings and objects to be used to refresh a witness's memory. 603-605 So. 2d XXIV (West Miss. Cas. 1993).

Advisory Committee Note

The language of Rule 612 has been amended as part of the general restyling of the Evidence Rules to make them more easily understood and to make style and terminology consistent throughout the rules. The contents of the Rule - formerly contained in a single paragraph - have been divided into subdivisions. These changes are intended to be stylistic only. There is no intent to change any result in any ruling on evidence admissibility.

Rule 612, while reflecting existing federal practice, deviates in some respects from pre-rule Mississippi practice. The purpose of Rule 612 is to stimulate memory in order to ascertain credible evidence.

If the witness uses a writing, recording or object (e.g., a photograph) while testifying, the adversary has the right to see such writing, recording or object, to cross-examine on the basis of these items, and to have the relevant portions introduced into evidence. If, on the other hand, the witness uses such items to refresh his memory before testifying, then it is within the trial court's discretion to allow the adversary to see them.

Additionally, the rule provides for an offer of proof when the trial court withholds certain portions of a writing, recording or object from the cross-examiner's use. The rule also provides sanctions for the occasions when such items are not produced pursuant to a court order.

The pre-rule Mississippi practice of using a writing to refresh a witness's memory has often been confused with the past recollection recorded exception to the hearsay rule. Prior to the rules, a party who simply wanted to refresh a witness's memory often felt compelled to satisfy the foundation requirements of the hearsay exception. Rule 612 eliminates this state of confusion and permits any writing, recording or object to be used, regardless of whether it is in compliance with the foundation requirements of the hearsay exception.

["Advisory Committee Note" substituted for "Comment," effective June 16, 2016; amended July 1, 2016, to note restyling.]

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