§ 90.613, Fla. Stat. — Refreshing the Memory of a Witness
Plain English
When a witness uses a writing or other item to refresh their memory while testifying, the other side earns the right to see it: to have it produced, inspect it, cross-examine the witness on it, and introduce the relevant portions into evidence. If the writing contains unrelated matter, the judge reviews it privately (in camera), excises the unrelated parts, and turns over the rest. And there’s a real consequence: if the party won’t produce the item as ordered, the witness’s testimony on those matters is stricken. The principle is fairness — you can’t prop up a witness with a document the other side never gets to examine.
From the Courtroom
Hand a witness a document to “refresh recollection” and you’ve just handed the other side the right to see it. The classic blunder is letting a witness quietly read from notes — the instant they refresh from that paper, opposing counsel can demand it, cross-examine on it, and put the relevant parts in front of the jury. Know what’s in the document before you ever hand it over.
Key Points & Authority
- § 90.613, Fla. Stat. — When a witness refreshes memory with a writing or item, the adverse party may have it produced, inspect it, cross-examine on it, and introduce the related portions.
- Safeguards: the judge excises unrelated matter in camera; failure to produce the item as ordered results in the testimony being stricken.
- Federal parallel: Fed. R. Evid. 612 (numbering offset — Florida’s 90.613 maps to federal 612).
Federal Parallel
The federal counterpart is Fed. R. Evid. 612 (numbering offset by one) — the writing-used-to-refresh rule, giving the adverse party access to the document and the relevant portions.
About this rule walkthrough
Part of The Evidence Code, hosted by John M. Phillips — Board Certified Civil Trial Lawyer, Court TV analyst, admitted in 8 states + 9 federal districts + SCOTUS.
Free consultation: (904) 444-4444 · About John Phillips
Educational only — not legal advice.
Rule Text (verbatim from the Florida Supreme Court)
When a witness uses a writing or other item to refresh memory while testifying, an adverse party is entitled to have such writing or other item produced at the hearing, to inspect it, to cross-examine the witness thereon, and to introduce it, or, in the case of a writing, to introduce those portions which relate to the testimony of the witness, in evidence. 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 objection shall be preserved and made available to the appellate court in the event of an appeal. If a writing or other item is not produced or delivered pursuant to order under this section, the testimony of the witness concerning those matters shall be stricken.
Educational reference. Educational only — not legal advice.
What this rule means in plain English
Section 90.613 gives the adverse party the right to produce, inspect, cross-examine on, and introduce the relevant portions of a writing or item a witness uses to refresh memory; unrelated matter is excised in camera, and failure to produce results in stricken testimony.