906.06 Annotation
When a juror makes a clear statement that indicates that the juror relied on racial stereotypes or animus to convict a criminal defendant, the 6th amendment requires that the no-impeachment rule give way in order to permit the trial court to consider the evidence of the juror's statement and any resulting denial of the jury trial guarantee. For the inquiry to proceed, there must be a showing that one or more jurors made statements exhibiting overt racial bias that cast serious doubt on the fairness and impartiality of the jury's deliberations and resulting verdict. To qualify, the statement must tend to show that racial animus was a significant motivating factor in the juror's vote to convict. Pena-Rodriguez v. Colorado,
580 U.S. 206,
137 S. Ct. 855,
197 L. Ed. 2d 107 (2017).
906.07
906.07
Who may impeach. The credibility of a witness may be attacked by any party, including the party calling the witness.
906.07 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R169 (1973);
1991 a. 32.
906.08
906.08
Evidence of character and conduct of witness. 906.08(1)(1)
Opinion and reputation evidence of character. Except as provided in s.
972.11 (2), the credibility of a witness may be attacked or supported by evidence in the form of reputation or opinion, but subject to the following limitations:
906.08(1)(a)
(a) The evidence may refer only to character for truthfulness or untruthfulness.
906.08(1)(b)
(b) Except with respect to an accused who testifies in his or her own behalf, evidence of truthful character is admissible only after the character of the witness for truthfulness has been attacked by opinion or reputation evidence or otherwise.
906.08(2)
(2)
Specific instances of conduct. Specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness's character for truthfulness, other than a conviction of a crime or an adjudication of delinquency as provided in s.
906.09, may not be proved by extrinsic evidence. They may, however, subject to s.
972.11 (2), if probative of truthfulness or untruthfulness and not remote in time, be inquired into on cross-examination of the witness or on cross-examination of a witness who testifies to his or her character for truthfulness or untruthfulness.
906.08(3)
(3)
Testimony by accused or other witnesses. The giving of testimony, whether by an accused or by any other witness, does not operate as a waiver of the privilege against self-incrimination when examined with respect to matters which relate only to character for truthfulness.
906.08 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R171 (1973);
1975 c. 184,
421;
1991 a. 32;
1995 a. 77,
225; Sup. Ct. Order No.
16-02A, 2017 WI 92, 378 Wis. 2d xiii.
906.08 Note
NOTE: Sup. Ct. Order No.
16-02A states that: “The Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09, and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”
906.08 Note
Judicial Council Note, 2017: The following federal Advisory Committee Note regarding the 2003 amendment to Fed. R. Evid. 608 is instructive, though not binding, in understanding the scope and purpose of the amendments to s. 906.08 (2) and (3).
906.08 Note
The Rule has been amended to clarify that the absolute prohibition on extrinsic evidence applies only when the sole reason for proffering that evidence is to attack or support the witness' character for truthfulness.
See United States v. Abel,
469 U.S. 45 (1984);
United States v. Fusco,
748 F.2d 996 (5th Cir. 1984) (Rule 608(b) limits the use of evidence “designed to show that the witness has done things, unrelated to the suit being tried, that make him more or less believable per se"); Ohio R.Evid. 608(b). On occasion the Rule's use of the overbroad term “credibility" has been read “to bar extrinsic evidence for bias, competency and contradiction impeachment since they too deal with credibility." American Bar Association Section of Litigation,
Emerging Problems Under the Federal Rules of Evidence at 161 (3d ed. 1998). The amendment conforms the language of the Rule to its original intent, which was to impose an absolute bar on extrinsic evidence only if the sole purpose for offering the evidence was to prove the witness' character for veracity.
See Advisory Committee Note to Rule 608(b) (stating that the Rule is “[i]n conformity with Rule 405, which forecloses use of evidence of specific incidents as proof in chief of character unless character is in issue in the case ... ").
906.08 Note
By limiting the application of the Rule to proof of a witness' character for truthfulness, the amendment leaves the admissibility of extrinsic evidence offered for other grounds of impeachment (such as contradiction, prior inconsistent statement, bias and mental capacity) to Rules 402 and 403.
See, e.g., United States v. Winchenbach,
197 F.3d 548 (1st Cir. 1999) (admissibility of a prior inconsistent statement offered for impeachment is governed by Rules 402 and 403, not Rule 608(b));
United States v. Tarantino,
846 F.2d 1384 (D.C. Cir. 1988) (admissibility of extrinsic evidence offered to contradict a witness is governed by Rules 402 and 403);
United States v. Lindemann,
85 F.3d 1232 (7th Cir. 1996) (admissibility of extrinsic evidence of bias is governed by Rules 402 and 403).
906.08 Note
It should be noted that the extrinsic evidence prohibition of Rule 608(b) bars any reference to the consequences that a witness might have suffered as a result of an alleged bad act. For example, Rule 608(b) prohibits counsel from mentioning that a witness was suspended or disciplined for the conduct that is the subject of impeachment, when that conduct is offered only to prove the character of the witness.
See United States v. Davis,
183 F.3d 231, 257 n.12 (3d Cir. 1999) (emphasizing that in attacking the defendant's character for truthfulness “the government cannot make reference to Davis's forty-four day suspension or that Internal Affairs found that he lied about" an incident because “[s]uch evidence would not only be hearsay to the extent it contains assertion of fact, it would be inadmissible extrinsic evidence under Rule 608(b)"). See
also Stephen A. Saltzburg,
Impeaching the Witness: Prior Bad Acts and Extrinsic Evidence, 7 Crim. Just. 28, 31 (Winter 1993) (“counsel should not be permitted to circumvent the no-extrinsic-evidence provision by tucking a third person's opinion about prior acts into a question asked of the witness who has denied the act").
906.08 Note
For purposes of consistency the term “credibility" has been replaced by the term “character for truthfulness" in the last sentence of subdivision (b). The term “credibility" is also used in subdivision (a). But the Committee found it unnecessary to substitute “character for truthfulness" for “credibility" in Rule 608(a), because subdivision (a)(1) already serves to limit impeachment to proof of such character.
906.08 Annotation
The trial court committed plain error by admitting extrinsic impeaching testimony on a collateral issue. McClelland v. State,
84 Wis. 2d 145,
267 N.W.2d 843 (1978).
906.08 Annotation
When credibility of a witness was a critical issue, exclusion of evidence offered under sub. (1) was grounds for discretionary reversal. State v. Cuyler,
110 Wis. 2d 133,
327 N.W.2d 662 (1983).
906.08 Annotation
Impeachment of an accused by extrinsic evidence on a collateral matter was harmless error. State v. Sonnenberg,
117 Wis. 2d 159,
344 N.W.2d 95 (1984).
906.08 Annotation
Absent an attack on credibility, a complainant's testimony that the complainant had not initiated a civil action for damages was inadmissible when used to bolster credibility. State v. Johnson,
149 Wis. 2d 418,
439 N.W.2d 122 (1989).
906.08 Annotation
Allegations of professional misconduct against the prosecution's psychiatric expert initially referred to the prosecutor's office but immediately transferred to a special prosecutor for investigation and possible criminal proceedings were properly excluded as a subject of cross-examination of the expert due to a lack of logical connection between the expert and the prosecutor necessary to suggest bias. State v. Lindh,
161 Wis. 2d 324,
468 N.W.2d 168 (1991).
906.08 Annotation
Whether a witness's credibility has been sufficiently attacked to constitute an attack on the witness's character for truthfulness permitting rehabilitating character testimony is a discretionary decision. State v. Anderson,
163 Wis. 2d 342,
471 N.W.2d 279 (Ct. App. 1991).
906.08 Annotation
Evidence that an expert in a medical malpractice action was named as a defendant in a separate malpractice action was inadmissible for impeachment purposes under this section because it did not cast light on the expert's character for truthfulness. Nowatske v. Osterloh,
201 Wis. 2d 497,
549 N.W.2d 256 (Ct. App. 1996),
93-1555.
906.08 Annotation
Character evidence may be allowed under sub. (1) (b) based on attacks on the witness's character made in opening statements. Allegations of a single instance of falsehood cannot imply a character for untruthfulness. The attack on the witness must be an assertion that the witness is a liar generally. State v. Eugenio,
219 Wis. 2d 391,
579 N.W.2d 642 (1998),
96-1394.
906.08 Annotation
It was appropriate for an expert to testify to the nature of witnesses' cognitive disabilities and how those mental impairments affected the witnesses' abilities to testify or recall particular facts, but the expert's testimony that the witnesses were incapable of lying violated the rule that a witness is not permitted to express an opinion on whether another physically and mentally competent witness is telling the truth. State v. Tutlewski,
231 Wis. 2d 379,
605 N.W.2d 561 (1999),
98-2551.
906.08 Annotation
Asking a defendant whether the defendant's accusers, a citizen witness, or an investigating police officer are telling the truth has no tendency to usurp the jury's function in assessing credibility; indeed, if anything, it would help the jury evaluate each witness's demeanor. State v. Bolden,
2003 WI App 155,
265 Wis. 2d 853,
667 N.W.2d 364,
02-2974.
906.08 Annotation
The opinion of an expert witness about whether another competent witness is telling the truth serves no useful purpose and may be detrimental to the process because the jury does not need any expert assistance in assessing credibility. When a prosecutor's cross-examination of a defendant's eyewitness account was to impeach the defendant's credibility by asking whether another eyewitness account was untruthful and not to bolster the credibility of the other witness, because both and the other witness were testifying to their personal observations about the same events, the cross-examination of the defendant was permissible. State v. Johnson,
2004 WI 94,
273 Wis. 2d 626;
681 N.W.2d 901,
02-2793.
906.09
906.09
Impeachment by evidence of conviction of crime or adjudication of delinquency. 906.09(1)(1)
General rule. For the purpose of attacking character for truthfulness, a witness may be asked whether the witness has ever been convicted of a crime or adjudicated delinquent and the number of such convictions or adjudications. If the witness's answers are consistent with the previous determination of the court under sub.
(3), then no further inquiry may be made unless it is for the purpose of rehabilitating the witness's character for truthfulness.
906.09(2)
(2)
Exclusion. Evidence of a conviction of a crime or an adjudication of delinquency may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice. Factors for a court to consider in evaluating whether to admit evidence of prior convictions for the purpose of attacking a witness's truthful character include:
906.09(2)(b)
(b) The rehabilitation or pardon of the person convicted.
906.09(2)(d)
(d) The involvement of dishonesty or false statement in the crime.
906.09(3)
(3)
Admissibility of conviction or adjudication. No question inquiring with respect to a conviction of a crime or an adjudication of delinquency, nor introduction of evidence with respect thereto, shall be permitted until the court determines pursuant to s.
901.04 whether the evidence should be excluded.
906.09(5)
(5)
Pendency of appeal. The pendency of an appeal therefrom does not render evidence of a conviction or a delinquency adjudication inadmissible. Evidence of the pendency of an appeal is admissible.
906.09 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R176 (1973);
1991 a. 32;
1995 a. 77; Sup. Ct. Order No.
16-02A, 2017 WI 92, 378 Wis. 2d xiii.
906.09 Note
NOTE: Sup. Ct. Order No.
16-02A states that: “The Judicial Council Notes to Wis. Stats. §§ 901.07, 906.08, 906.09, and 906.16 are not adopted, but will be published and may be consulted for guidance in interpreting and applying the rule.”
906.09 Note
Judicial Council Note, 2017: The amendment to sub. (1) is intended to conform the rule more closely to current practice. It is consistent with
Nicholas v. State,
49 Wis. 2d 683,
183 N.W.2d 11 (1971) and
State v. Bailey,
54 Wis. 2d 679, 690,
196 N.W.2d 664, 670 (1972).
906.09 Note
The following federal Advisory Committee Note regarding the 2006 amendment to federal Rule 609 is instructive.
906.09 Note
The amendment also substitutes the term “character for truthfulness" for the term “credibility" in the first sentence of the Rule. The limitations of Rule 609 are not applicable if a conviction is admitted for a purpose other than to prove the witness's character for untruthfulness.
See, e.g., United States v. Lopez,
979 F.2d 1024 (5th Cir. 1992) (Rule 609 was not applicable where the conviction was offered for purposes of contradiction).
906.09 Note
The amendment to sub. (2) continues to recognize the long-standing principle that this statutory exclusion is a “particularized application" of s. 904.03,
State v. Gary M.B.,
2004 WI 33, ¶21,
270 Wis. 2d 62, 81,
676 N.W.2d 475, 485, and codifies the holding in
Gary M.B. that circuit courts are required, in determining whether to admit or exclude prior convictions, to examine a number of factors. Majority op., ¶21; Chief Justice Abrahamson's dissent, ¶56; Justice Sykes' dissent, ¶85,
State v. Kuntz,
160 Wis. 2d 722, 752,
467 N.W.2d 531 (1991);
State v. Kruzycki,
192 Wis. 2d 509, 525,
531 N.W.2d 429 (Ct. App. 1995);
State v. Smith,
203 Wis. 2d 288, 295-96,
553 N.W.2d 824 (Ct. App. 1996). However, the committee recognizes that in conducting the balancing test, the circuit court need only consider those factors applicable to the case.
Kuntz, 160 Wis. 2d at 753,
467 N.W.2d 531. Subsection (2) does not include expungement because evidence of a conviction expunged under Wis. Stat. § 973.015(1) is not admissible under this rule.
State v. Anderson,
160 Wis. 2d 435, 437 (Ct. App. 1991).
906.09 Note
In
State v. Gary M.B., the majority observed that “in the future, it would be prudent for circuit courts to explicitly set forth their reasoning in ruling on § 906.09(2) matters in order to demonstrate that they considered the relevant balancing factors applicable in the case before them."
2004 WI 33, ¶35,
270 Wis. 2d 62, 87-88,
676 N.W.2d 475, 488. Chief Justice Abrahamson noted, “[t]he purposes of requiring a circuit court to perform this process on the record are many. The process increases the probability that a circuit court will reach the correct result, provides appellate courts with a more meaningful record to review, provides the parties with a decision that is comprehensible, and increases the transparency and accountability of the judicial system." Chief Justice Abrahamson's dissent, ¶48.
906.09 Annotation
This section applies to both civil and criminal actions. When a plaintiff was asked by his own attorney whether he had ever been convicted of a crime, he could be asked on cross-examination as to the number of times. Underwood v. Strasser,
48 Wis. 2d 568,
180 N.W.2d 631 (1970).
906.09 Annotation
It was not error to give an instruction as to prior convictions effect on credibility when the prior case was a misdemeanor. McKissick v. State,
49 Wis. 2d 537,
182 N.W.2d 282 (1971).
906.09 Annotation
When a defendant's answers on direct examination with respect to the number of the defendant's prior convictions were inaccurate or incomplete, the correct and complete facts could be brought out on cross-examination, during which it was permissible to mention the crime by name in order to insure that the witness understood the particular conviction being referred to. Nicholas v. State,
49 Wis. 2d 683,
183 N.W.2d 11 (1971).
906.09 Annotation
Proffered evidence that a witness had been convicted of drinking offenses 18 times in the last 19 years could be rejected as immaterial if the evidence did not affect the witness's credibility. Barren v. State,
55 Wis. 2d 460,
198 N.W.2d 345 (1972).
906.09 Annotation
When a witness truthfully acknowledges a prior conviction, inquiry into the nature of the conviction may not be made. Voith v. Buser,
83 Wis. 2d 540,
266 N.W.2d 304 (1978).
906.09 Annotation
A defendant's two prior convictions for burglary were admissible to prove intent to use gloves, a long pocket knife, a crowbar, and a pillow case as burglarious tools. Vanlue v. State,
96 Wis. 2d 81,
291 N.W.2d 467 (1980).
906.09 Annotation
Cross-examination on prior convictions without the trial court's threshold determination under sub. (3) was prejudicial. Gyrion v. Bauer,
132 Wis. 2d 434,
393 N.W.2d 107 (Ct. App. 1986).
906.09 Annotation
An accepted guilty plea constitutes a “conviction" for purposes of impeachment under sub. (1). State v. Trudeau,
157 Wis. 2d 51,
458 N.W.2d 383 (Ct. App. 1990).
906.09 Annotation
An expunged conviction is not admissible to attack witness credibility. State v. Anderson,
160 Wis. 2d 435,
466 N.W.2d 681 (Ct. App. 1991).
906.09 Annotation
Whether to admit evidence of prior convictions for impeachment purposes requires consideration of: 1) the lapse of time since the conviction; 2) the rehabilitation of the person convicted; 3) the gravity of the crime; and 4) the involvement of dishonesty in the crime. If allowed, the existence and number of convictions may be admitted, but the nature of the convictions may not be discussed. State v. Smith,
203 Wis. 2d 288,
553 N.W.2d 824 (Ct. App. 1996),
94-3350.
906.09 Annotation
Evidence that exposed a witness's prior life sentences and that the witness could suffer no penal consequences from confessing to the crime in question was properly admitted. State v. Scott,
2000 WI App 51,
234 Wis. 2d 129,
608 N.W.2d 753,
98-3105.
906.09 Annotation
Even if the circuit court did not expressly state on the record that it considered the possible danger of unfair prejudice, the fact that the court gave a limiting instruction can reveal that the trial court considered the possibly prejudicial nature of evidence and was seeking to ensure that it was properly utilized by the jury in reaching its verdict. State v. Gary M.B.,
2004 WI 33,
270 Wis. 2d 62,
676 N.W.2d 475,
01-3393.
906.09 Annotation
Neither Seen nor Heard: Impeachment by Prior Conviction and the Continued Failure of the Wisconsin Rule to Protect the Criminal Defendant-Witness. Straka. 2018 WLR 1193.
906.10
906.10
Religious beliefs or opinions. Evidence of the beliefs or opinions of a witness on matters of religion is not admissible for the purpose of showing that by reason of their nature the witness's credibility is impaired or enhanced.
906.10 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R184 (1973);
1991 a. 32.
906.11
906.11
Mode and order of interrogation and presentation. 906.11(1)(1)
Control by judge. The judge shall exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to do all of the following:
906.11(1)(a)
(a) Make the interrogation and presentation effective for the ascertainment of the truth.
906.11(1)(c)
(c) Protect witnesses from harassment or undue embarrassment.
906.11(2)
(2)
Scope of cross-examination. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility. In the interests of justice, the judge may limit cross-examination with respect to matters not testified to on direct examination.
906.11(3)
(3)
Leading questions. Leading questions should not be used on the direct examination of a witness except as may be necessary to develop the witness's testimony. Ordinarily leading questions should be permitted on cross-examination. In civil cases, a party is entitled to call an adverse party or witness identified with the adverse party and interrogate by leading questions.
906.11 History
History: Sup. Ct. Order, 59 Wis. 2d R1, R185 (1973);
1991 a. 32;
1999 a. 85.
906.11 Annotation
A question is not leading if it merely suggests a subject rather than a specific answer that may not be true. Hicks v. State,
47 Wis. 2d 38,
176 N.W.2d 386 (1970).
906.11 Annotation
It is error for a trial court to restrict cross-examination of an accomplice who was granted immunity, but the conviction will not be reversed if the error was harmless. State v. Schenk,
53 Wis. 2d 327,
193 N.W.2d 26 (1972).
906.11 Annotation
A defendant who testifies in the defendant's own behalf may be recalled for further cross-examination to lay a foundation for impeachment. Evidence that on a prior occasion the defendant did not wear glasses and that the defendant had a gun similar to that described by the complainant was admissible when it contradicted the defendant's earlier testimony. Parham v. State,
53 Wis. 2d 458,
192 N.W.2d 838 (1972).
906.11 Annotation
A trial judge should not have stricken the entire testimony of a defense witness for refusal to answer questions bearing on the witness's credibility that had little to do with the guilt or innocence of the defendant. State v. Monsoor,
56 Wis. 2d 689,
203 N.W.2d 20 (1973).
906.11 Annotation
A trial judge's admonitions to an expert witness did not give the appearance of judicial partisanship requiring a new trial. Peeples v. Sargent,
77 Wis. 2d 612,
253 N.W.2d 459 (1977).
906.11 Annotation
The extent, manner, and right of multiple cross-examinations by different counsel representing the same party can be controlled by the trial court. Hochgurtel v. San Felippo,
78 Wis. 2d 70,
253 N.W.2d 526 (1977).
906.11 Annotation
A defendant has no right to be actively represented in court both personally and by counsel. Moore v. State,
83 Wis. 2d 285,
265 N.W.2d 540 (1978).
906.11 Annotation
Leading questions were properly used to refresh a witness's memory. Jordan v. State,
93 Wis. 2d 449,
287 N.W.2d 509 (1980).
906.11 Annotation
By testifying to his actions on the day a murder was committed, the defendant waived the self-incrimination privilege on cross-examination as to previous actions reasonably related to the direct examination. Neely v. State,
97 Wis. 2d 38,
292 N.W.2d 859 (1980).
906.11 Annotation
Under the facts of this case, the trial judge's last minute determination to a witness to testify by telephone was an abuse of discretion, which deprived the defendant of the opportunity to have a meaningful cross-examination of the witness. Town of Geneva v. Tills,
129 Wis. 2d 167,
384 N.W.2d 701 (1986).
906.11 Annotation
A chart prepared by the prosecutor during a trial, in the jury's presence, to categorize testimony was not a summary under s. 910.06 but was a “pedagogical device" admissible within the court's discretion under this section. State v. Olson,
217 Wis. 2d 730,
579 N.W.2d 802 (Ct. App. 1998),
96-2142.
906.11 Annotation
The rule of completeness for oral statements is encompassed within this section. A party's use of an out-of-court statement to show an inconsistency does not automatically give the opposing party the right to introduce the whole statement. Under the rule of completeness, the court has discretion to admit only those statements necessary to provide context and prevent distortion. State v. Eugenio,
219 Wis. 2d 391,
579 N.W.2d 642 (1998),
96-1394.
906.11 Annotation
There was no misuse of discretion in allowing a three-year-old child witness to sit on her grandmother's lap while testifying regarding an alleged sexual assault. The trial court has the power to alter courtroom procedures in order to protect the emotional well-being of a child witness and is not required to determine that a child is unable to testify unless accommodations are provided. State v. Shanks,
2002 WI App 93,
253 Wis. 2d 600,
644 N.W.2d 275,
01-1372.
906.11 Annotation
While sub. (1) provides the circuit court with broad discretion to control the presentation of evidence at trial, that discretion is not unfettered and must give way when the exercise of discretion runs afoul of other statutory provisions that are not discretionary. State v. Smith,
2002 WI App 118,
254 Wis. 2d 654,
648 N.W.2d 15,
01-1662.
906.11 Annotation
Whether the trial court erroneously exercised its discretion under sub. (1) (a) to exercise reasonable control over the mode and order of interrogating witnesses and presenting evidence so as to make the interrogation and presentation effective for the ascertainment of the truth must be determined based upon the particular facts and circumstances of each individual case. The discovery provisions of s. 971.23 do not trump the trial court's ability to exercise its discretion to grant a continuance order. State v. Wright,
2003 WI App 252,
268 Wis. 2d 694,
673 N.W.2d 386,
03-0238.
906.11 Annotation
Under the circumstances of this case, when the defendant sought to introduce evidence of prior specific instances of violence within the defendant's knowledge at the time of the incident in support of a self-defense claim, the circuit court had the authority under this section, in conjunction with s. 901.04 (3) (d), to order the defendant to disclose prior to trial any specific acts that the defendant knew about at the time of the incident and that the defendant intended to offer as evidence so that admissibility determinations could be made prior to trial. State v. McClaren,
2009 WI 69,
318 Wis. 2d 261,
767 N.W.2d 550,
07-2382.
906.11 Annotation
There is no blanket rule barring or limiting the admission of the type of evidence that linked the cartridge case and bullet to the gun in this case. The admission and scope of such evidence is left to the reasonable discretion of the trial courts to exercise under this section and s. 904.03 and to cross-examination by adversary counsel. State v. Jones,
2010 WI App 133,
329 Wis. 2d 498,
791 N.W.2d 390,
09-2835.
906.12
906.12
Writing used to refresh memory. If a witness uses a writing to refresh the witness's 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, except that in criminal cases when the prosecution elects not to comply, the order shall be one striking the testimony or, if the judge in the judge's discretion determines that the interests of justice so require, declaring a mistrial.
