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32. How should the court respond?
A defendant is on trial for bank robbery. Evidence at the trial has included testimony by a bank teller who was present during the robbery. The teller testified for the prosecution after having refreshed her memory by looking at an FBI agent's investigative report that was created shortly after the robbery. The defendant has asked to examine the report.
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Under FRE 612(b), «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.»
A is correct. Under FRE 612, if a writing is used to refresh a witness's memory while the witness is testifying, an adverse party has the right to inspect the writing. If the writing was used to refresh the witness's memory before the witness testified, then the adverse party may inspect the writing «if the court decides that justice requires» it. Therefore, if the teller used the report to fresh her memory before testifying, the court may allow the defendant to examine it. If, however, the teller uses it during her testimony, the court must allow the defendant to inspect it.
B is incorrect. Under FRE 612, an opponent may inspect writing used to refresh a witness's recollection regardless of whether the writing contains the witness's own statement. The opposing party's right to examine the writing depends only upon when it is being used to refresh the witness's recollection, either before or during the testimony.
C is incorrect. This is a misstatement of FRE 612. As explained above, the court must allow examination of the report if it is used while the teller is testifying, but the court may also allow examination of the report if it was used before she testified, if justice so requires.
D is incorrect. This is also a misstatement of FRE 612. Under the Rule, the defendant has rights regarding the examination of the report being used to refresh the teller's memory, regardless of whether the report was read and approved by the teller while the matter was fresh in her mind.