If a witness uses a writing to refresh his memory for the purpose of testifying, either before or while testifying, an adverse party is entitled to have it 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 judge 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 judge shall make any order justice requires.

Annotations

A party seeking access to a document used to refresh a witness' recollection bears the burden of establishing that the document sought was actually used by the witness to refresh recollection. State v. Schroder, 232 Neb. 65, 439 N.W.2d 489 (1989).

A precondition to the production and use by an adverse party of a witness' prior written statement is that the statement has been used by the witness to refresh his recollection. Rawlings v. Andersen, 195 Neb. 686, 240 N.W.2d 568 (1976).

This section requires production of not only documents used to refresh recollection in the courtroom while the witness is testifying, but also those writings the witness reviewed prior to giving testimony. State v. McMillion, 23 Neb. App. 687, 875 N.W.2d 877 (2016).

The purpose of the phrase "for the purpose of testifying" is to safeguard against wholesale exploration of an opposing party's files and to ensure that access is limited only to those writings which may fairly be said in fact to have an impact upon the testimony of the witness. State v. Jones, 6 Neb. App. 647, 577 N.W.2d 302 (1998).