Writing Used to Refresh a Witness's Memory

(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. 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. 2016 NHRE Update Committee Note The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to the rule. 2016 NHRE Update Committee Note The amendments made by supreme court order dated April 20, 2017, effective July 1, 2017, made stylistic changes to subsections (a) and (c) of the rule. Subsections (a) and (c) mirror Federal Rule of Evidence 611(a) and (c). No change was made to subsection (b). New Hampshire Rule of Evidence 611(b) generally allows for more latitude on the scope of cross-examination than does FRE 611(b). The committee saw no reason to change this practice.