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  • Writer's pictureBrian Foley

Woodlands Criminal Defense Attorney - Texas Rules of Evidence Series RULE 612

Texas Rule of Evidence 612 is a powerful rule. It relates to when a witness may refresh their memory with a writing. In Criminal Cases this is typically an offense report for a police officer or a witness statement for a witness or alleged victim. McCoy v. State, 877 S.W.2d 844, 845 (Tex. App. --Eastland 1994, no pet.)(holding that police officers can be refreshed with their offense reports).

The procedure for refreshing a witness's memory with a writing is not outlined in Rule 612. Rather Rule 612 is a guide for the adverse party, typically the criminal defendant, on how to ensure that a writing cannot be used inappropriately by a witness.

Lets go over the proper method for refreshing recollection first.

To properly refresh a witness's recollection on direct examination you may ask the witness a question like, "What color was the light when the defendant drove through the intersection?" If the witness doesn't remember then you can ask them, "Is there anything that would help refresh your recollection?" Or if you don't want to sound like a persnickety lawyer you could just say "Is there anything that would help you remember?" The witness may say, yes "I wrote a witness statement for police that day if I could see that then I may be able to remember." You would then ask the judge "May I approach the witness?" When you approach bring the witness statement or other writing and give it to the witness and instruct the witness, "Now if you would please read this silently to yourself until you believe that your memory has been refreshed." When the witnesses is done reading the document take it away from them before asking your question.

DO NOT LET THE WITNESS READ FROM THE DOCUMENT. This is improper during a refreshed recollection. If the witness tells you, "Yes I remember now" then you can ask them the question again. "What color was the light when the defendant drove through the intersection?" "It was green" the witness now recalls.

If the witness reads the statement but says they do not have an independent memory even after being refreshed with the writing then you can proceed to the Hearsay exception under Rule 803 (5) (Recorded Recollection). If you can show the writing is

  1. is on a matter the witness once knew about but now cannot recall well enough to testify fully and accurately;

  2. was made or adopted by the witness when the matter was fresh in the witness’s memory; and

  3. accurately reflects the witness’s knowledge, unless the circumstances of the record’s preparation cast doubt on its trustworthiness.

Only then may you read it into the record. But you may not offer it as an exhibit. Only the adverse party may offer it as an exhibit.

So now that you understand the regular procedure lets discuss your options as an adverse party under Rule 612.

Rule 612 tells the adverse party that you may demand that the writing being used to refresh the witness's testimony be given to you. In a criminal case this is typically already been done through the discovery process long before trial. You may cross-examine the witness about the writing as well.

But the best part of Rule 612 for Criminal Defense Attorneys is subsection (c) where it says that if a writing is not produced or is not delivered as ordered in a criminal case, the court must strike the witness’s testimony or—if justice so requires—declare a mistrial.

So this one rule could be the cause of getting an entire criminal prosecution dismissed with prejudice!

In Young v. State, the Court of Criminal Appeals ruled that a defendant in a criminal case is absolutely entitled to the production and inspection of any document reviewed by the witness to help them refresh their recollection or in preparation of trial. It was found to be irrelevant that the State did not have the records in its possession or that the witness did not bring the documents to court with her. Young v. State, 830 S.W.2d 122, 124 (Tex. Crim. App. 1992).

Rule 612. 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;

(2) before testifying, in civil cases, if the court decides that justice requires the party to have those options; or

(3) before testifying, in criminal cases.

(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.


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