Refreshing Recollection
In general
(a) Right to Inspect
(1) If, while testifying, a witness uses a writing or object to refresh the witness's memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.
(2) If, before testifying, a witness uses a writing or object to refresh the witness's memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing, or deposition in which the witness is testifying.
(b) Terms and Conditions of Production and Use.
(1) A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness.
(2) If production of the writing or object at the trial, hearing, or deposition is impracticable, the court may order it made available for inspection.
(3) If it is claimed that the writing or object contains matters not related to the subject matter of the testimony, the court must examine the writing or object in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections must be preserved and made available to the appellate court in the event of an appeal.
(c) Failure to Produce or Deliver the Writing or Object. If a writing or object is not produced, made available for inspection, or delivered pursuant to order under this rule, the court must make any order justice requires, but in criminal cases if the prosecution elects not to comply, the order must be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
• A witness's act of reading his own prior statement under Rule 612 is foundational in the sense that before proceeding, counsel must establish whether such reading was successful in refreshing the witness's memory.
Hutcherson v. State, 966 N.E.2d 766, 772 (Ind. Ct. App. 2012), trans. denied
• Evidence Rule 612 does not suggest, much less require, that the writing used to refresh a witness's memory must have been prepared by the witness. . . this Court had long held that a writing used to refresh a witness's memory could be prepared by the witness or another person.
Thompson v. State, 728 N.E.2d 155, 161 (Ind. 2000), reh’g denied(emphasis added)
• We agree with Judge Miller that a "simple colloquy" is all that is required under Rule 612: “The witness must first state that he does not recall the information sought by the questioner. The witness should be directed to examine the writing, and be asked whether that examination has refreshed his memory. If the witness answers negatively, the examiner must find another route to extracting the testimony or cease the line of questioning.”
Thompson v. State, 728 N.E.2d 155, 160 (Ind. 2000), reh’g denied(citing Robert L. Miller, Jr. Indiana Practice 612.101, at 225 (2d ed. 1995))
No substitution
• [A] written memorandum may be used to refresh the recollection of a forgetful witness, but the memorandum may not be substituted for the memory of the witness.
Evans v. State, 563 N.E.2d 1251, 1261 (Ind. 1990), on reh’g, 598 N.E.2d 516 (Ind. 1990)
• If the witness replies that the writing has refreshed his memory, he may be examined on the subject but may not testify from the writing itself.
Young v. State, 746 N.E.2d 920, 925 (Ind. 2001)(citing Robert L. Miller, Jr. Indiana Practice 612.101 (2d ed. 1995))
Right to Inspect
• While testifying: “If, while testifying, a witness uses a writing or object to refresh the witness’s memory, an adverse party is entitled to have the writing or object produced at the trial, hearing, or deposition in which the witness is testifying.”
We note that at the time of the adoption of Evid. R. 612, the Regional Advisory Committee Commentary addressed a possible (if not inevitable) conflict between materials that qualify as "work product" and refreshing the recollection of witnesses:
Indiana Trial Rule 26(B)(3) provides that materials which qualify as work product are discoverable only upon a showing that the party seeking discovery has substantial need of the materials in preparation of their case and that the party is unable without undue hardship to obtain the substantial equivalent of the materials by other means. When a witness has used such materials to actually refresh their recollection prior to testifying, Rule 612 weights the balance in favor of finding that the "substantial need" exists, because of the policy in favor of effective cross-examination. When the requirement of this rule to disclose materials used to refresh recollection conflicts with the protections afforded by the attorney-client privilege and the work-product doctrine, the weight of authority holds that Rule 612 prevails.
Gault v. State, 878 N.E.2d 1260, 1267 (Ind. 2008)
• Once State's Exhibit 27 was marked for identification and handed to Simmons to refresh his memory, and Simmons then testified from his refreshed memory, defense counsel was entitled to see the contents of the exhibit, and to use the exhibit in his cross-examination.