(1) Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, if a witness uses a writing to refresh memory for the purpose of testifying, either— while testifying, or
(2) before testifying, if the court in its discretion determines it is necessary in 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 matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987.)
added in current removed in current
Compared to current version (2025).
(1a) Except as otherwise provided in criminal proceedings by section 3500 of title 18, United States Code, ifScope. This rule gives an adverse party certain options when a witness uses a writing to refresh memory for the purpose of testifying, either-:
(1) while testifying,; or
(2) before testifying, if the court in its discretion determines it is necessary in the interdecides that justice requires the party to have those options.
(b) Adverse Party ’ s Options; Deleting Unrelated Matter. Unlests of justic18 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 thereonabout it, and to introduce in evidence thoseany portions which that relates to the witness’s testimony o. If the witness. If it isproducing party claimeds that the writing contains matters not related to the subject matter of the testimonyincludes unrelated matter, the court shallmust examine the writing in camera, excisdelete any portions not so related, and order delivery of the remainder to the party entitled theretounrelated portion, and order that the rest be delivered to the adverse party. Any portion withheldeleted over objections shall must be preserved and made available to the appellate court in the event of an appealfor the record.
(c) Failure to Produce or Deliver the Writing. If a writing is not produced or is not delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases whenas ordered, the court may issue any appropriate order. But if the prosecution electdoes not to comply, the order shall be one st in a crikming the testimony or, if the court in its discretion determines that the interests oal case, the court must strike the witness’s testimony or-if justice so require, s-declaringe a mistrial.
(As amended Mar. 2, 1987, eff. Oct. 1, 1987; Apr. 26, 2011, eff. Dec. 1, 2011.)