§ 21.06 Right of Inspection

• Jurisdiction: United States

§ 21.06 Right of Inspection

Federal Rule 612 operates differently depending on whether the witness's recollection is refreshed during or prior to trial.

Trial refreshment. The opposing party has the right to inspect any writing used during trial, including those used to refresh memory. The right is mandatory for trial refreshment. Inspection is a safeguard against the misuse of writings (e.g., the direct examiner gives her witness a piece of paper instructing the witness to answer "yes" to the next two questions). If a party attempts to exercise the right of inspection and is met by an objection based on relevancy grounds, the trial court is required to examine the writing in camera and excise any parts not related to the witness's testimony.

Pretrial refreshment. Under Rule 612, the production of a writing used prior to trial to refresh a witness's recollection may be required if the court decides that justice so requires. As proposed by the Supreme Court, Rule 612 did not contain this limitation; production was mandatory.¹⁸ Congress added the provision making inspection discretionary in order to preclude "fishing expeditions among a multitude of papers which a witness may have used in preparing for trial."¹⁹

In exercising this discretion, the judge should consider (1) the extent of the witness's reliance on that writing, (2) the importance of the information, (3) any resulting burden on another party, and (4) the potential for disruption of the trial. The use of a writing "just before" the witness is called to testify is the sort of circumstance that should lead a trial court to require production—i.e., reviewing a document in the...