Rule 612 concerns refreshing memory. Which statement is true?

Rule 612 concerns refreshing memory. Which statement is true?

• A. A witness may use a writing to refresh memory, and the writing is not evidence unless used to refresh.
• B. The writing becomes evidence and may be admitted regardless.
• C. A witness cannot use writings to refresh memory.
• D. Refresh memory requires the writing to be admitted as substantive evidence.

Answer: (A)

The key idea is that Rule 612 lets a witness use a writing to refresh memory while testifying, and that writing itself is not evidence unless it’s being used to refresh memory. This means the purpose of the writing is to jog the witness’s recall, not to prove the facts. The opposing party can inspect the writing and question the witness about it, and a portion that relates to the testimony can sometimes be admitted for other reasons, but the act of refreshing memory does not turn the writing into substantive evidence by default. The other statements misstate the rule: a witness may use writings to refresh memory; there’s no requirement that refreshing memory makes the writing admissible as substantive evidence, and refreshing memory does not forbid using writings or automatically require admission as evidence.

The key idea is that Rule 612 lets a witness use a writing to refresh memory while testifying, and that writing itself is not evidence unless it’s being used to refresh memory. This means the purpose of the writing is to jog the witness’s recall, not to prove the facts. The opposing party can inspect the writing and question the witness about it, and a portion that relates to the testimony can sometimes be admitted for other reasons, but the act of refreshing memory does not turn the writing into substantive evidence by default. The other statements misstate the rule: a witness may use writings to refresh memory; there’s no requirement that refreshing memory makes the writing admissible as substantive evidence, and refreshing memory does not forbid using writings or automatically require admission as evidence.