The statute contains no requirement that the statement be consulted for purposes of refreshment before or while testifying the rule so requires. The statute applies only to government witnesses the rule applies to all witnesses. The statute applies only to criminal cases the rule applies to all cases. The Jencks statute applies only to statements of witnesses the rule is not so limited. With this limitation in mind, some differences of application may be noted. 343, 351 (1959), and disclosure under the rule is limited similarly by the statutory conditions. The same sensitivity to disclosure of government files may be involved hence the rule is expressly made subject to the statute, subdivision (a) of which provides: “In any criminal prosecution brought by the United States, no statement or report in the possession of the United States which was made by a Government witness or prospective Government witness (other than the defendant) shall be the subject of a subpena, discovery, or inspection until said witness has testified on direct examination in the trial of the case.” Items falling within the purview of the statute are producible only as provided by its terms, Palermo v. §3500: to promote the search of credibility and memory. The purpose of the rule is the same as that of the Jencks statute, 18 U.S.C. The purpose of the phrase “for the purpose of testifying” is to safeguard against using the rule as a pretext for wholesale exploration of an opposing party's files and to insure 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. As Wigmore put it, “the risk of imposition and the need of safeguard is just as great” in both situations. 64 (1917), and this position is believed to be correct. An increasing group of cases has repudiated the distinction, People v. The bulk of the case law has, however, denied the existence of any right to access by the opponent when the writing is used prior to taking the stand, though the judge may have discretion in the matter. The treatment of writings used to refresh recollection while on the stand is in accord with settled doctrine. Notes of Advisory Committee on Proposed Rules But if the prosecution does not comply in a criminal case, the court must strike the witness’s testimony or - if justice so requires - declare a mistrial. If a writing is not produced or is not delivered as ordered, the court may issue any appropriate order. (c) Failure to Produce or Deliver the Writing. Any portion deleted over objection must be preserved for the record. If the producing party claims that the writing includes unrelated matter, the court must examine the writing in camera, delete any unrelated portion, and order that the rest be delivered to the adverse party. § 3500 provides otherwise in a criminal case, an adverse party is entitled to have the writing produced at the hearing, to inspect it, to cross-examine the witness about it, and to introduce in evidence any portion that relates to the witness’s testimony. (b) Adverse Party’s Options Deleting Unrelated Matter. (2) before testifying, if the court decides that justice requires the party to have those options. This rule gives an adverse party certain options when a witness uses a writing to refresh memory:
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