Under FRE 612, what effect does using a writing to refresh recollection have on the writing and on the witness's testimony?

• A. The writing is admitted as evidence and can refresh memory
• B. The writing is used only to refresh memory and must be available to opposing counsel
• C. The writing is destroyed after use
• D. The witness must testify without the writing

Answer: (B)

Refreshing recollection under FRE 612 uses the writing only as a memory aid. The writing is not read into evidence and is not automatically admitted; the witness testifies from memory, with the writing merely helping jog that memory. The opposing party has the right to inspect the writing and to cross-examine the witness about it. The writing doesn’t get destroyed by use, and the witness isn’t required to testify without it if it’s being used to refresh memory. So the best description is that the writing is used only to refresh memory and must be available to opposing counsel.