Witness when the matter was fresh in the witnesss

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witness when the matter was fresh in the witness’s memory; and o (C) accurately reflects the witness’s knowledge. If admitted, the record may be read into evidence but may be received as an exhibit only if offered by an adverse party. o 612. Writing Used to Refresh a Witness (a) Scope. This rule gives an adverse party certain options when a witness uses a writing 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. 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. (c) Failure to Produce or Deliver the Writing. 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. o Distinguishing the Two 612 Writing is not in evidence. Page 44 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar W need not have made the writing. It doesn’t matter when the writing was made. It doesn’t matter is the writing is accurate. The only requirement is that it refreshes the witness’s memory. 803(5) Writing is in evidence. The memory of the witness is completely gone. The writing must be made close in time to the event it describes. o The W must have had personal knowledge at one time. The writing cannot be introduced into evidence as an exhibit unless offered by an adverse party. If the W denies a memory problem, you can use neither of these. Business Records o Record of a Regularly Conducted Activity 803(6). Record of Regularly Conducted Activity The following are not excluded by the rule against hearsay, regardless of whether the declarant is available as a witness: o (6) A record of an act, event, condition, opinion, or diagnosis if: (A) the record was made at or near the time by — or from information transmitted by — someone with knowledge; (B) the record was kept in the course of a regularly conducted activity of a business, organization, occupation, or calling, whether or not for profit; (C) making the record was a regular practice of that activity; (D) all these conditions are shown by the testimony of the custodian or another qualified witness, or by a certification that complies Page 45 of 65 Nathan Hardymon
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Evidence Spring 2017 Outline Lollar with Rule 902(11) or (12) or with a statute permitting
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