§ 21.09 SANCTIONS

• Jurisdiction: United States

§ 21.09. SANCTIONS

Under Rule 612(c), if the prosecution fails to produce a writing used to refresh memory, the court must either strike the testimony or, if the interests of justice require, declare a mistrial.

If a criminal defendant or a party in a civil case fails to produce a writing, the court may issue any appropriate order. In a civil case, this could include "contempt, dismissal, finding issues against the offender, and the like."²⁹ "Dismissals" and "findings" against a criminal defendant, however, are unconstitutional. Striking a defense witness's testimony has been upheld under certain circumstances,³⁰ and permitting the prosecutor to comment on the defendant's refusal to produce a document also would be proper.

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Notes:

^[29] Fed. R. Evid. 612 advisory committee's note.

^[30] See Michigan v. Lucas, 500 U.S. 145 (1991) (exclusion of defense witness's testimony for failure to comply with a rape shield law's notice requirements not unconstitutional under circumstances); Taylor v. Illinois, 484 U.S. 400 (1988) (exclusion of defense witness's...