cross-examination whether they read or used any document or writing in antic: pation of testifying and ask the court for production of the writing if the question is answered in the affirmative.

Where a writing is used to refresh the recollection of the witness at trial, traditional rules of evidence have required counsel to display the exhibit to opposing counsel prior to showing it to the witness. The Rule adds nothing to this procedure.

b) A Jencks statement must be produced only after the witness who authored it has testified (as a matter of practice in most federal courts, the statement is turned over at the start of trial or before the witness testifies). A statement under Rule 612 may be ordered produced even if the witness, who used it to refresh his recollection, did not authorize it.

ILLUSTRATION

Assume X, an EPA investigator, investigated an environmental offense with Y, a state employee. Y prepares a report relative to the incident and provides the prosecutor with a copy of the report. Nine months later, X is subpoenaed to testify at the trial. In preparation to testify, X reads his notes and Y's report. Thereafter, X is called as a witness on behalf of the government. The notes are producible under the Jencks Act and the report by Y is producible under Rule 612 inasmuch as it was used by X to refresh his memory prior to testifying.

c) The Jencks Act applies only to criminal cases, the Rule applies to all proceedings. There may be instances, such as in the above illustration, where both the statute and the Rule have application. As stated earlier, in order for the rule to apply, the writing involved need not be one prepared by a witness, but it may be an obscure report prepared by a clerk within the agency. Although a writing may have been utilized by a witness in order to

prepare himself for trial, in order to be admissible it must also be relevant

and in accord with the other rules of evidence.

The Rule requires that the writing be actually utilized by the witness to refresh his recollection in order to be admissible; the Jencks Act does not have such a requirement for its admissibility.

If a party contends that the document is not related to his witness' testimony and seeks to withhold disclosure, he may present the document to the Court, in camera, for a determination as to its relevance to the witness' testimony.

If the court determines that a portion of the writing is relevant, it may order the disclosure of the relevant portion and return to the submitting party the remainder of the writing.

Where a party fails to produce a writing under this Rule, the Court is empowered to impose sanctions. Rule 612, to the extent it requires production of documents used to refresh the recollection of the witness in preparation for trial, departs from the traditional rule which only requires disclosure where the witness uses the document to refresh his recollection while testifying. See McGill v. United States, 106 U.S. App. D.C. 136, 270 F.2d 329 (1959).

RULE 613

PRIOR STATEMENTS OF WITNESSES

(a) Examining witness concerning prior statement. In examining a witness concerning a prior statement made by him, whether written or not, the statement need not be shown nor its contents disclosed to him at that time, but on request the same shall be shown or disclosed to opposing counsel.

(b) Extrinsic evidence of prior inconsistent statement of witness. Extrinsic evidence of a prior inconsistent statement by a witness is not admissible unless the witness is afforded an opportunity to explain or deny the same and the opposite party is afforded an opportunity to interrogate him thereon, or the interests of justice otherwise require. This provision does not apply to admissions of a party-opponent as defined in rule 801(d)(2).

ELEMENTS

A.

B.

When examining a witness concerning his/her prior oral or written statement, witness

1. Need not be shown statement, except

2. Statement must be shown to opposing counsel on request.

Extrinsic evidence of prior inconsistent statement not admissible,

unless

1. Witness afforded opportunity to

a. Explain or deny statement, and

b. Opposite party given opportunity to interrogate, or

C. Interests of justice otherwise requires.

d. Rule not applicable to admissions of party opponent [Rule

801(d)(2)].

COMMENTS

Rule 613(a) modifies the traditional rule to the extent that it eliminates the requirement that the witness be afforded an opportunity to examine

the prior inconsistent statement before counsel will be allowed to impeach him with the statement. See Troublefield v. United States, 125 U.S. App. D.C. 339, 372 F.2d 912 (1966). Likewise, the traditional rule requiring counsel to bring to the witness' attention the time, place, persons and circumstances involving prior oral statements has been modified by the rule to the extent that such a foundation is not necessary for counsel to impeach the witness. See Gordon v. Thomas, 63 App. D.C. 148, 70 F.2d 752 (1934).

Under the rule, counsel must produce the statement on demand by opposing counsel. However, he need not afford the witness an opportunity to examine the statement prior to impeachment. Under Rule 16(a)(1)(A) of the Federal Rules of Criminal Procedure, a defendent is entitled to see a copy of his prior statements. Likewise, under Rule 26(b)(3) of the Civil Rules, a witness is entitled to see his own statement. This Rule does not change the above rules; however, where the accused testifies as to a collateral matter which was irrelevant to the governments' case and where the statement by the accused relative to the matter was not producible under 16(a)(1)(A) of the Federal Rules of Criminal Procedure, Rule 613 may apply. In order for Rule 26(b)(3) of the Federal Rules of Civil Procedure to apply, the witness cannot wait until he is about to be impeached under Rule 613 to apply for a copy of his statement.

Under Rule 613(b), extrinsic evidence concerning the prior inconsistent statement must be shown to the witness and the witness be allowed to explain or deny the evidence before it may be admitted against him. Additionally, his attorney, unless the interests of justice require otherwise, must be afforded an opportunity to examine the witness relative to the statement before it may be admitted into evidence.

ILLUSTRATION

Assume X has testified relative to the subject matter of the case and is undergoing cross-examination by Y. Y has a written statement of X which was taken a short time after the cause of action arose. The statement is inconsistent with X's present testimony and Y is about to impeach him with the prior statement. Y asks X whether he made a prior inconsistent statement and queres him relative to the inconsistent statement. X denies ever making the statement. Up to this point, X has not been shown the statement. Z, X's attorney, asks to see the statement and Y produces it for him.

Y cannot introduce the statement into evidence at this point until he has shown the statement to X. If he does not show the statement to X he must accept X's answers. Y shows the statement to X and affords him the opportunity to explain the statement. X attempts to explain the statement and reconcile it with his present testimony. Y still cannot offer the statement into evidence until Z has had an opportunity to examine X relative to it. After Y's cross-examination of X, Z conducts his re-direct examination of X and queres him relative to the statement. The statement can now be admitted into evidence (subject to the prohibition against offering exhibits into evidence during your opponent's case).

(a) Calling by court. The court may, on its own motion or at the suggestion of a party, call witnesses, and all parties are entitled to cross-examine witnesses thus called.