Rule 612 - Writing Used to Refresh Memory(a)While Testifying. Rule 612 follows Federal Rule 612 in acknowledging the long-established common law practice of allowing parties to refresh the recollection of a witness by showing the witness a writing or other object. The rule applies to all such materials. The term "objects" is intended to cover all unwritten memory aids--e.g., photographs or tape recordings. Alaska Rule of Civil Procedure 43(g) (9), superseded by this rule, allowed materials to be used to refresh the recollection of a witness on the stand only if they were written by the witness himself or under his direction at a time when the fact was fresh in his memory. Presumably this rule was thought to guard against the power of suggestion. But because it addressed only activities taking place in court, saying nothing about the more prevalent and potentially more harmful practice of pre-trial preparation of witnesses, Rule 43(g) (9) could not provide meaningful protection in this regard. It was effective only in preventing trial judges and juries from benefiting from the firsthand knowledge of witnesses who might readily have their memories jogged by a quick reading of a news article or other writing.
Rule 612 follows the prevailing view as reflected by its federal counterpart; it rejects limitations on the kinds of writings or objects that may be shown to witnesses to refresh recollection. Adequate safeguards against undue influence on a witness are afforded by:
(1) Rule 602, which requires a witness to have personal knowledge of the facts; (2) the court's power to determine that a witness is reading a prior statement, rather than testifying from present memory; and (3) the right of an impeaching party to demand inspection of the material. The right to inspect material used at trial enables the impeaching party to object to its use if there are grounds to do so and to refer to it during his examination. This party can thereby probe any discrepancies between the testimony and the material and test the witness' assertion that his memory has become clear.
Thus, the rule now makes it clear that anything can be used to refresh the memory of a witness. The foundation requirements for past recollection recorded, an exception to the hearsay rule found under Rule 803 are not relevant under this rule.
Rule 612(a) uses the phrase "seeking to impeach the witness" to define parties who may benefit from the rule's protections; the Federal Rule uses the term "adverse" parties. Because any party may impeach any witness under Rule 607, a party may need to examine his own witness concerning reliance on memory-refreshing devices. This rule permits such an examination, although the trial judge must insure that a good faith effort to impeach is being made, not an attempt to offer prior recorded recollection that does not otherwise qualify as an exception to the hearsay rule. The same phrase "seeking to impeach the witness" is used in subdivision (b) also.
(b)Before Testifying. While almost the same advantages are afforded by inspection of materials used before trial as by inspection of materials used at trial, traditionally there has been no right to inspect the former. A fear has persisted that a right to inspect such material could easily be used as a pretext for wholesale exploration of an opposing party's files. Rule 612(b) is carefully worded to protect the right to inspect from abuse. The purpose of the phrase "for the purpose of testifying" is to limit counsel's access to his opponent's files to those writings which may fairly be said in fact to have an impact upon the testimony of the witness. Moreover, the right to inspect is conditional upon a judicial finding that it is required to do justice in the particular situation. If production of the writing or object is impracticable, subdivision (b) provides that the court may order instead that the writing or object be made available for inspection. The court may, of course, decline to issue such an order if justice does not require it; the rule does not require any one approach for all cases.
(c)Claims of Privilege or Irrelevance. This section outlines the proper procedure for handling material used to refresh recollection that is to be made available to a party for impeachment use. The procedure is similar to that prescribed by Rule 106 for related writings: first a ruling on any claim of privilege is made, then an examination of the material in chambers follows for the purpose of excising irrelevant material. (d)Failure to Produce. Sanctions for non-production are left generally to the discretion of the court. Rule 16 of the Rules of Criminal Procedure and Rule 37 of the Rules of Civil Procedure suggest appropriate sanctions. But the rule recognizes both the sensitive nature of some government files, especially those used in criminal cases, and the importance in criminal litigation of treating the defendant fairly, e.g., by making all potentially exculpatory evidence available to the defendant. Unlike the Federal Rule, Alaska Rule 612 allows the court in its discretion to dismiss a prosecution for failure to comply with this rule. In some situations striking the testimony may be woefully inadequate. For example, if the defense calls a government officer or agent or witness associated with the government, who has personal knowledge of the facts of a case, to obtain evidence helpful to the defense, counsel for the defense may wish to attack the witness by showing that he is parroting information provided by the prosecutor. A successful attack might well be followed by the elicitation of facts helpful to the defense. If the prosecutor should refuse to disclose writings or objects used to refresh the witness' recollection despite a finding that disclosure is required in the interests of justice, dismissal may be the only appropriate remedy. Striking the testimony of the witness may deny the defendant helpful evidence, and declaring a mistrial will not help the defendant get the possibly exculpatory material. Moreover, unnecessary granting of a mistrial may violate the double jeopardy clause of the United States Constitution. See United States v. Jorn, 400 U.S. 470, 27 L.Ed.2d 543 (1971). Consequently, Rule 612 allows dismissal of the prosecution as a sanction for refusal to comply with the order of the court if the court determines that justice requires dismissal. Dismissal is, however, a drastic remedy and ought not be invoked until all alternatives have been assessed and deemed insufficient to remedy harm occasioned by the refusal to comply. Where the government's refusal is coupled with an effort to seek and obtain interlocutory relief by way of a petition for review or otherwise, dismissal ought not be entered without permitting the government an opportunity to exhaust that avenue of relief. Alaska Comm. R. Evid. 612