Rule 612 - Writing Used to Refresh MemoryIf a witness uses a writing to refresh his memory for the purpose of testifying, either-
(2) before testifying, if the court in its discretion determines it is necessary in the interests of justice, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce in evidence those portions which relate to the testimony of the witness. If it is claimed that the writing contains matters not related to the subject matter of the testimony the court shall examine the writing in camera, excise any portions not so related, and order delivery of the remainder to the party entitled thereto. Any portion withheld over objections shall be preserved and made available to the appellate court in the event of an appeal. If a writing is not produced or delivered pursuant to order under this rule, the court shall make any order justice requires, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the court in its discretion determines that the interests of justice so require, declaring a mistrial. Annotation Law reviews. For article, "A Deposition Primer, Part II: At the Deposition", see 11 Colo. Law. 1215 (1982). For article, "Rule 612 Revisited", see 11 Colo. Law. 1553 (1982). For article, "Waiver of Privilege Under Rule 612 ", see 24 Colo. Law. 2563 (1995). For article, "Rule 612: Discovery of Documents Shown to a Witness Before Deposition", see 37 Colo. Law. 41 (June 2008). Error to admit report not used or referred to by witness. Where no part of a report is used or referred to by a witness in his direct testimony, the admission of the report in the course of cross-examination on the theory that the witness has used the report to refresh his memory before testifying is error. People v. Bugarin, 181 Colo. 62, 507 P.2d 875 (1973).