(1) General Rule. When a testifying witness’s memory is exhausted as to a matter about which he or she once had knowledge, the witness’s memory may be refreshed, in the presence of the jury, with any writing or other object that permits the witness to further testify from his or her own memory. The writing or object should not be read from or shown to the jury.
(A) When a testifying witness uses a writing or object to refresh his or her memory, an adverse party is entitled to the production of the writing or object after it is shown to the witness and before cross-examination, even if it contains information subject to work-product protection.
(B) A party entitled to the production of a writing or object under this section is entitled to examine the writing or so much of it as relates to the case on trial, may cross-examine about it, and may introduce it in evidence to show that it could not or did not aid the witness in any legitimate way.
(1) Production. If, before testifying, a witness uses a writing or object to refresh his or her memory for the purpose of testifying, an adverse party has no absolute right to the production and inspection of the writing or object. The trial judge, however, in his or her discretion, may, at the request of the adverse party, order production of the writing or object at the trial, hearing, or deposition in which the witness is testifying if it is practicable and the interests of justice so require.
(2) Admissibility. Where the adverse party at trial calls for a writing or other object from his or her opponent that was used to refresh the witness’s memory prior to trial, does so in front of the jury, and receives and examines it, the writing or other object may be offered in evidence by the producing party when necessary to prevent the impression of evasion or concealment, even though it would have been incompetent if it had not been called for and examined.
(3) Suppressed Statement. If, before testifying in a criminal case, a witness uses a suppressed statement to refresh his or her memory for the purpose of testifying, the judge must conduct a voir dire to establish that the witness has a present recollection of the event to which he or she is testifying.
Subsection (a)(1). This subsection is derived from Commonwealth v. O’Brien, 419 Mass. 470, 478–479, 645 N.E.2d 1170, 1175 (1995) (citing with approval Proposed Mass. R. Evid. 612), and Bendett v. Bendett, 315 Mass. 59, 63, 52 N.E.2d 2, 5 (1943). A witness may use a writing or other object to refresh a failing memory. Commonwealth v. O’Brien, 419 Mass. at 478, 645 N.E.2d at 1175. The witness’s testimony, however, must be the product of present recollection. See Commonwealth v. Hoffer, 375 Mass. 369, 376, 377 N.E.2d 685, 691 (1978). This subsection should not be confused with the doctrine of past recollection recorded.
Cross-Reference: Section 803(5), Hearsay Exceptions; Availability of Declarant Immaterial: Past Recollection Recorded.
Subsection (a)(2)(A). This subsection is derived from Commonwealth v. O’Brien, 419 Mass. 470, 478–480, 645 N.E.2d 1170, 1174–1176 (1995). “[W]hen materials protected by the work product doctrine are used by the examiner to refresh a witness’s recollection on the stand, the protection afforded by the work product doctrine is waived and the opponent’s attorney is entitled to inspect the writing.” Id. at 478, 645 N.E.2d at 1175. The Supreme Judicial Court observed in dicta that
“[t]he few State courts that have addressed the issue of the conflict between the rule and protected documents used while the witness is on the stand have reached conclusions similar to the Federal courts, i.e., that use of protected material to refresh a witness’s recollection on the stand constitutes waiver of that protection.”
Id. at 479, 645 N.E.2d at 1176.
Subsection (a)(2)(B). This subsection is taken nearly verbatim from Bendett v. Bendett, 315 Mass. 59, 62–63, 52 N.E.2d 2, 5 (1943) (allowing adverse party to show that writing or object did not or could not have refreshed the memory of the witness).
Subsection (b)(1). This subsection is derived from Leonard v. Taylor, 315 Mass. 580, 583–584, 53 N.E.2d 705, 707 (1944), citing Goldman v. United States, 316 U.S. 129, 132 (1942). This rule has been the subject of considerable criticism. See Commonwealth v. O’Brien, 419 Mass. 470, 479 n.5, 645 N.E.2d 1170, 1175 n.5 (1995) (“Presently, the more controversial issue, and the one on which courts are still somewhat unclear, is whether an adverse party has a right under [Fed. R. Evid.] 612 to inspect protected and privileged documents used by the witness to refresh her recollection prior to testifying.”); Commonwealth v. Marsh, 354 Mass. 713, 721–722, 242 N.E.2d 545, 551 (1968) (“It is an artificial distinction to allow inspection of notes used on the stand to refresh recollection and to decline it where the witness inspects his notes just before being called to the stand.”).
Subsection (b)(2). This subsection is derived from Leonard v. Taylor, 315 Mass. 580, 581–584, 53 N.E.2d 705, 706–707 (1944). The purpose of this rule is to protect the opposing party from the impression of evasion and concealment from a “bold and dramatic demand” by the adverse party—not to make otherwise inadmissible evidence admissible—and should therefore be used sparingly. See id. at 582–583, 53 N.E.2d at 706–707.
Cross-Reference: Section 106(b), Doctrine of Completeness: Curative Admissibility.
Subsection (b)(3). This subsection is derived from Commonwealth v. Woodbine, 461 Mass. 720, 731, 964 N.E.2d 956, 966 (2012), where the court stated as follows:
“We do not decide today that it is impermissible for a witness to testify concerning an event after his memory has been refreshed by his review, before taking the stand, of material that is suppressed due to violations of a defendant’s rights under the Fifth Amendment to the United States Constitution and art. 12 of the Massachusetts Declaration of Rights. However, before such a witness is permitted to testify, the judge must ensure that the Commonwealth has met its burden of establishing that the witness will testify not from a memory of the suppressed statement, which by definition is not to be placed in evidence, but from an independent memory of the separate event. This requires that the judge conduct a voir dire through which the basis for the witness’s assertion that he or she has a present recollection of the separate event may be thoroughly examined.”