Litigation

Cross Examination: The Witness who can't Remember

Lawyers should challenge a witness when they think they are pretending not to remember events.


Lawyers should challenge a witness when they think they are pretending not to remember events.

A witness may falsely say that they do not remember anything; the purpose would be to avoid having to answer questions. If you suspect that this may occur, you will want to consider three steps to address this issue.

Firstly, you will want to set a foundation, early in the cross-examination, for a challenge to the alleged lack of memory. You would establish that the witness has no medical issues that would impair their memory and that they have a good memory. You would also want to establish that the facts in question would not likely be easily forgotten.

The second step you would take, in dealing with a witness who pretends to lose their memory, would be to directly challenge the likelihood that they would have lost their memory. If the loss of memory does not appear to be legitimate and appears to be an obvious attempt to avoid answering questions. You would want to demonstrate that the information is not the type of information that would likely be forgotten.

The third step to consider would be to contrast the “I don’t know” answers with other answers provided by the witness. You can suggest that he should also not remember parts of the case that are favorable to your client. They may not remember those parts either and it will allow you to argue that the witness should not be believed because of the lack of memory and that there is no dispute with parts of the evidence that favors your client. If they are selective in their memory and only remember the parts of the case that are harmful to your client, then you can argue that the selectivity of their memory demonstrates dishonesty. You would do this by contrasting a series of failures to memory evidence that is harmful to the witness, with a series of questions that are answered that deal with evidence that would be potentially unfavorable to your client.

If you encounter or expect to encounter a witness who will pretend to lose their memory in relation to important facts, then following these three steps will assist you in being able to argue that the evidence of the witness should be rejected as being either false or unreliable.

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