SCRE 612

If a witness uses a writing to refresh memory for the purpose of testifying, either -

(1) while testifying, or

(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.

Note:

Except for the deletion of a reference to federal law, no changes were made to the

federal rule. Requiring a party to provide a copy of a memorandum used by a witness

to refresh recollection so that it may be used on cross-examination of the witness is

consistent with prior law. State v. Hamilton, 276 S.C. 173, 276 S.E.2d 784 (1981); State

v. Tyner, 273 S.C. 646, 258 S.E.2d 559 (1979). Rule 37(b)(2), SCRCP, and Rule 5(d)(2),

SCRCrimP, are similar to the provision in this rule concerning the trial judge's authority

to decide the remedy for failure to produce a document for the adverse party.