In the latest episode of his "Powerful Witness Preparation" podcast series, If You Don't Remember, Say So, litigation attorney Dan Small continues his in-depth 10-part series on the rules for witness preparation. He explains that one of the more seemingly obvious rules is also the most difficult for many people - a witness can only testify to what they clearly remember. If a witness does not remember a detail, they need to say so.
This rule is difficult because it is not a natural response in a normal conversation. Rarely would a person say "I don't recall," and then stop talking. It is a natural tendency to try to keep the conversation moving, but a witness should not do this in testimony. If the witness does not have a clear and precise memory, they should say "I don't recall," and stop.
Mr. Small explains that it is normal for a witness to have a different memory, or no memory, of specific details and he breaks down the five reasons this happens.
1) What's Important for One Is Not Important for All - Investigations will often focus on a single incident, transaction, practice, person or entity. The problem is that what the questioner is narrowly and intently focused on, may not have been particularly interesting, unusual or significant to the witness at the time.
2) The Tougher the Issue, the Tougher the Memory - Important does not always mean memorable. This is particularly so when it comes to remembering things that were either physically or psychologically difficult.
3) Memory Fades Quickly - The pace of investigations and litigation today means that questioning often does not happen until months or even years after the events at issue. This is not the witnesses' fault. They can only testify to what they precisely remember, and memory fades quickly.
4) Faded Memory Becomes Random and Anecdotal - As our memory fades, we forget things unevenly. We may randomly forget recent events, but remember long past ones.
5) Anecdotal Memory Becomes Reconstructed Memory - The real danger of not being comfortable with an imperfect and partial memory is that a witness could venture into the dangerous waters of reconstructed memory. Reconstructed memory is not based on what they actually recollect, but what they are pushed to infer, guess and conclude from everything else.
Lastly, he makes sure to differentiate and draw a hard line between "I don't know," and "I don't recall.” In a normal conversation, there is often very little difference between "no," "I don't know," and "I don't recall." However, for a witness, it can matter a great deal and change an entire testimony.
No matter what a questioner may say or imply about what a witness "should" or "must" remember, it is perfectly normal to remember some bits and pieces, but not others. They should talk about what they clearly remember and not worry about what they don't.
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