Massachusetts Guide to Evidence 2025 Edition MA R EVID § 612

(1)General Rule. When a testifying witness's memory is exhausted, the witness's memory may be refreshed, in the presence of the jury, with any writing or other object that permits the witness to further testify from a refreshed memory. The writing or object should not be read from or shown to the jury.

(2)Production and Use.

(1)Production. If, before testifying, a witness's memory is refreshed with a writing or object, an adverse party has no absolute right to the production and inspection of the writing or object. The trial judge, however, may, at the request of the adverse party, order production of the writing or object at the trial, hearing, or deposition in which the witness is testifying if it is practicable and the interests of justice so require.

(2)Admissibility. Where the adverse party at trial calls upon an opponent to produce a writing or other object that was used to refresh the witness's memory prior to trial, does so in front of the jury, and receives and examines it, the writing or other object may be offered in evidence by the producing party when necessary to prevent the impression of evasion or concealment, even though it would have been incompetent if it had not been called for and examined.

(3)Suppressed Statement. If, before testifying in a criminal case, a witness's memory is refreshed with a suppressed statement for the purpose of testifying, the judge must conduct a voir dire to establish that the witness has a present recollection of the event that is the subject of the testimony.