US Laws, Codes, Statutes & Cases

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.

Laws 1975, LB 279, § 45

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).