Rule 612 - Writing or Object Used To Refresh a Witness's Memory(a)While Testifying. If, while testifying, a witness uses a writing or object to refresh his memory, an adverse party is entitled to have the writing or object produced at the trial, hearing or deposition in which the witness is testifying.(b)Before Testifying. If, before testifying, a witness uses a writing or object to refresh his memory for the purpose of testifying and the court in its discretion determines that the interests of justice so require, an adverse party is entitled to have the writing or object produced, if practicable, at the trial, hearing or deposition in which the witness is testifying.(c)Terms and Conditions of Production and Use. A party entitled to have a writing or object produced under this rule is entitled to inspect it, to cross-examine the witness about it and to introduce in evidence any portions that relate to the witness's testimony. If production of the writing or object at the trial, hearing or deposition is impracticable, the court may order it made available for inspection. If the producing party claims that the writing or object contains matters not related to the subject matter of the testimony, the court must examine the writing or object in camera, delete any unrelated portion and order that the rest be delivered to the adverse party. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing or object is not produced, made available for inspection or delivered pursuant to order under this rule, the court may issue any order justice requires. 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.Amended November 28, 2017, effective 1/1/2018.Comment
This rule tracks U.R.E. 612 which differs in form but not in substance from F.R.E. 612. The Committee believed that the Uniform Rule was clearer.
For prior Delaware case illustrating the law covered by this rule, see Terry & Sons v. American Fruit Growers, Inc., Del. Super., 139 A. 259 (1925).
D.R.E. 612 was amended in 2017 in response to the 2011 restyling of the Federal Rules of Evidence. The amendment is intended to be stylistic only. There is no intent to change any result in ruling on evidence admissibility.