“What to Do When Your Witness Forgets”
by Elliott WilcoxThings were going great. You'd picked a fantastic jury, delivered an opening statement that got the jurors cheering for your client to win, and your first three direct examinations had gone better than you could have hoped. Now, halfway through the direct examination of the day's final witness, things are still going exactly as planned. Your witness is completely prepared, easily answering all of your questions without hesitation, and the jurors are hanging on his every word, completely enraptured by the sound of his voice. But then, midway through your examination, something unexpected happens when you ask this crucial question:
Q. “What is the worst fraternity on this campus?”
A. “Well that would be hard to say, sir. They're each outstanding in their own way...”
Every other time that you've asked this question during your pre-trial preparations with this witness, he's been quick to identify the offending fraternity. But now, his brain seems to have gone blank.
[With apologies in advance to Speed fans]:
“Ok, pop quiz, hotshot. The witness has just given you an answer you didn't expect. If you try to ignore it, the bad answer will destroy your case. If you try to lead the witness to the correct answer, your opponent will object. What do you do? What do you do?”
First things first: DON'T PANIC!
Far too often, attorneys (especially younger attorneys) lose their minds when they get unexpectedly bad responses from their witnesses. The worst thing you can do at this point is to give your jurors the impression that you've just lost the case. Chances are, the witness's incorrect answer isn't nearly as fatal as you think it is, so put on your poker face. If you freak out, the jury will amplify the importance of the negative answer. Just keep your cool -- you can fix this.
The next step, before you start jumping through evidentiary hoops trying to refresh the witness's recollection or establish a past recollection recorded, is to ensure that your witness really doesn't remember.
“What do you mean, 'ensure that he doesn't remember'? Of course he doesn't remember, because otherwise he would have answered my question correctly!”
Actually, that's not necessarily true. Often, witnesses know the correct information, but the reason why they don't answer correctly is because we ask them lousy questions. Before you attempt to refresh his recollection, take responsibility for asking a lousy question, and then try asking your question a different way to see if that jogs his memory. For example, set some parameters for your question, and make it easier for the witness to answer:
Q. “Based on their GPA's and disciplinary records, what is the worst fraternity on this campus?”A. “Oh, that would be Delta house, sir.”
Sometimes, that's all you'll need to do to get the right answer. But if rephrasing the question doesn't work, you can also try asking for the information in a different manner. Are there other questions you could ask that get the same answer? Consider stacking those questions on top of one another:
Q. “Who dropped a whole truckload of feces into the swim meet?”
A. “Delta house.”
Q. “Who delivered the medical school cadavers to the alumni dinner?”
A. “Delta house.”
Q. “Every Halloween, the trees are filled with underwear. Every spring, the toilets explode. Which house is responsible for these shenanigans?”
A. “Delta house.”
Q. “What is the worst fraternity on this campus?”
A. “Delta house, sir.”
Q. “Of course I'm talking about Delta, you TWERP!”
It's not as graceful as the first method, but it still gets you to the correct answer without having to ask any leading questions. But let's say none of these rephrasing techniques are working. Regardless of how you rephrase the question, your witness still can't remember. What do you do then? When you've exhausted rephrasing techniques, the next step is to refresh the witness's recollection.
Jurors understand that witnesses sometimes need help remembering details. For example, if I asked you what you were doing on July 10th of last year, you probably wouldn't be able to remember. But, if I gave you a chance to look at your calendar, you could probably tell me exactly where you were and what you did. That's the reason why the rules of evidence allow witnesses to refresh their recollection. Here is the process you'll need to follow to help your witnesses remember:
Step 1. Show that the witness can't remember.
Q. “What is the worst fraternity on this campus?”
A. “I can't remember.”
A. “I don't know.”
A. “I cannot recall.”
A. “I used to know, but I can't think of the answer right now.”
Showing the witness's lack of memory is an essential step that can't be overlooked. Unless you can show that the witness doesn't remember, you won't be allowed to refresh his recollection. There's a world of difference between the witness who can't remember and the witness who remembers the wrong answer. You can't refresh a witness's recollection simply because he's giving you a bad answer. (You can impeach him, but you can't refresh his memory.)
Step 2. Show that the witness previously remembered the information.
Q. “Did you used to know which fraternity was the worst on campus?”
Q. “Prior to today, did you have an independent memory of which fraternity was the worst one on campus?”
Q. “DId you previously remember which one was the worst?”
Step 3. Ask the witness if there's anything that would help refresh his memory.
Q. “Would it refresh your recollection to look at your report?”
A. “Yes, if I could review my report, that would help me remember.”
Q. “Is there anything that would help you remember?”A. “Yes, if I could smell a whiff of stale beer and listen to Otis Day and the Knights singing 'Shout,' I think that would refresh my memory.”
Q. “What do you need to help you remember?”A. “If you'd let me smash a beer can against my forehead, that always triggers my memory.”
The important thing to remember about refreshing memory is that you're not limited to showing the witness documentary evidence. Typically, you're going to use written documents to refresh witnesses' memories, but understand that you're not limited to paper exhibits. If there's anything that helps the witness remember, you should be permitted to use it to refresh their memory.
During this step, it's often worthwhile to have the witness explain to the jury why the item will refresh his memory and why he needs some help to remember. For example, let's say you're dealing with a police officer who makes lots of DUI arrests each year. By the time the case reaches trial, it's understandable that he might need some help remembering the exact details of this arrest, as opposed to the dozens of other cases he's worked. Before he uses his report to refresh his memory, you'd want to ask him about the report. “How soon after the arrest did you write the report? Why did you write it? How detailed does it have to be? How accurate are you when you write it? What details do you include? Is it intended to help you remember details about the case months, years, or even decades afterwards?” By asking those details, you help show the jurors that the refreshed memory will be accurate.
Step 4. Show the refreshing item to opposing counsel.
Step 5. Show the refreshing item to the witness, asking the witness to examine the item silently, and then look back at you when he's finished.
Step 6. Ask the witness if his memory has been refreshed.
Q. “Having reviewed your report, does that refresh your memory?”
Q. “Did smelling the stale beer and listening to 'Shout' help you remember what fraternity is the worst on campus?”
Q. “Now that you've smashed a beer can on your forehead, are you able to remember which fraternity is the worst on campus?”
[If the item doesn't refresh his memory, you can still try to get the testimony in through the “Past Recollection Recorded” evidentiary predicate, but you won't be able to use the “Refreshing Recollection” predicate.]
Step 7. Once the witness has refreshed his memory, re-ask your original question.
Q. “Now that you've refreshed your memory, please tell us, what is the worst fraternity on campus?”
A. “That would be Delta house.”
It's a good practice tip to tell your witness to turn over the document before answering, so the jury can see that he's testifying from his refreshed memory, and not merely reading aloud from the document. The jury wants to see that the witness has an independent memory of what happened, and isn't merely parroting what he just read.
Hopefully, you'll never run into the problem of having a witness forget what to say. But, if you decide to try cases in the real world, sooner or later, it's bound to happen. When it does, use these quick tips to help refresh your witness's memory, and your case will be back on track before anyone even notices.
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