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Rule 612. Writing used to refresh memory

If a witness uses writing to refresh his or her memory for the purpose of testifying, either

(1) while testifying, or

(2) before testifying, if the military judge determines it is necessary for 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 privileged information or matters not related to the subject matter of the testimony, the military judge shall examine the writing in camera, excise any privileged information or portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be attached to the record of trial as an appellate exhibit. If writing is not produced or delivered pursuant to order under this rule, the military judge shall make any order justice requires, except that when the prosecution elects not to comply, the order shall be one striking the testimony or, if in the discretion of the military judge it is determined that the interests of justice so required, declaring a mistrial. This rule does not preclude disclosure of information required to be disclosed under other provisions of these rules or this Manual.

This is NOT Rule 803(5), the recorded recollection hearsay exception.

Foundation and Procedure. Show the memory of

the witness has failed; show there are some means available that will refresh the recollection of the witness; have the witness read/examine the refreshing document silently; recover the refreshing document; proceed with questioning; make the refreshing document an appellate exhibit and append it to the record of trial; protect privileged matters contained in the writing; nothing is read into the record. Refreshing documents need not be admissible; and opposing counsel may inspect the writing, use it in cross-examination, and introduce it into evidence.

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