Civil Litigation Criminal Law Legal Topics Litigation Strategy Trial Strategy

When a Witness Has Selective Memory

187065476Some witnesses have a crystal clear memory about events unfavorable to your client, but express sweeping memory loss on other contemporaneous events. Here’s how to attack such selective memory.

The following line of questioning can be used in both criminal and civil cases. Even if it doesn’t get concessions from the witness, it will remind the jury of the frequent untrustworthiness of memory.

Q. Agent Green, you have testified that Mr. Smith [the client] said to you, before you looked in the trunk of his car, “I’m afraid you’ve got me dead to rights”?
A. Yes, that’s right.
Q. You are a trained customs agent, aren’t you?
Q. You knew the importance of including all important facts in your written report, didn’t you?
Q. And it is true, isn’t it, that you put the important facts into the written report you prepared for this case?
Q. Here’s a copy of the written report you prepared four months ago. Would you show me where Mr. Smith’s statement: “I’m afraid you’ve got me dead to rights” appears?
A. I forgot to include it. But I remember the words very well.
Q. You knew your written report was going to be referred to at trial?
Q. In the six months since you prepared the report, you never tried to correct it to include Mr. Smith’s supposed admission?
Q. You remembered the admission three months ago? Last month? Yesterday? But never amended your written report?
Q. On the day you looked in the trunk, what day of the week was it? Was Mr. Smith wearing a tie? What color was the car ahead of his? How hot was it? Was it cloudy or sunny? [And so on. These questions may backfire. Judge your witness carefully.]
Q. [If the witness can’t answer some of these questions] You claim to remember precise words spoken six months ago—and omitted from your written report? But you cannot recall for the jury whether it was sunny or not that day?
Q. After you found the cocaine, didn’t Mr. Smith say to you: “I don’t know how that got in there”?
A. I don’t remember that.
Q. You’ve heard Mr. Smith’s two companions testify to that remark? Didn’t that refresh your recollection?
A. I’ve said I don’t remember him saying that.
Q. Can you swear he did not say those very words?
A. I don’t remember it.
Q. And so you don’t deny he said it?
Q. Are you married? How many years?
Q. Have you ever quarreled with your wife about past events when your memory differed from hers? Have you ever found that your wife seemed to remember things to suit her purposes and forget other things if it was to her advantage? Has your wife ever remembered events you are sure never happened?
Q. Has your wife ever accused you of remembering things that never happened? Or of forgetting things that did happen? Or of remembering details wrongly?
Q. In honesty, in your 37 years, haven’t you sometimes found your memory in error? What do people mean when they say “my memory must be playing tricks on me”? Usually when it does, isn’t it to your advantage?
Q. In the past four months, haven’t you conducted over 3000 border inspections? Isn’t it possible that your memory played tricks on you when you recalled this supposed admission by Mr. Smith that appears nowhere in your detailed three-page report?

When you’re examining a witness (particularly a trained witness, such as a police officer) who has filed a written report, don’t concentrate on the doughnut, but on the hole. This means that you don’t want to repeat the witness’s testimony about details or the details that the witness has provided in the written report. Instead, you should examine as follows:

Q. Show the jury where you say John Smith seemed nervous when you questioned him.
A. It’s not there.
Q. Point out the place in your report where you say that John Smith said, “I guess I’m in big trouble.”
A. I left out that detail.
Q. You know the importance of including all details in your police reports, don’t you?
A. Not all details.
Q. In fact, Officer Green, there’s not a single statement by my client, John Smith, in your report which shows any sense of guilt on his part, is there?
A. Let me see the report, please. [Provide the report and wait, the longer the better.]

Sometimes a point is best explained through an illustration. CEB provides many sample examinations to deal with a variety of situations in its Effective Direct and Cross-Examination.

Related CEB blog posts:

© The Regents of the University of California, 2013. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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