WHAT TO DO WHEN YOUR WITNESS FORGETS

Things were going great. Youd 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 days 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. Theyre each outstanding in their own
way

Every other time that youve asked this question during your pre-trial preparations
with this witness, hes 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 didnt 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: DONT 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 youve just lost the case. Chances are, the witnesss incorrect
answer isnt 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 witnesss recollection or establish a past recollection recorded, is to ensure that
your witness really doesnt remember.

What do you mean, ensure that he doesnt remember? Of course he doesnt

remember, because otherwise he would have answered my question correctly!

Actually, thats not necessarily true. Often, witnesses know the correct information,
but the reason why they dont 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 GPAs and disciplinary records, what is the worst fraternity on
this campus?

A. Oh, that would be Delta house, sir.

Sometimes, thats all youll need to do to get the right answer. But if rephrasing the
question doesnt 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 Im talking about Delta, you TWERP!

Its not as graceful as the first method, but it still gets you to the correct answer
without having to ask any leading questions. But lets say none of these rephrasing
techniques are working. Regardless of how you rephrase the question, your witness
still cant remember. What do you do then? When youve exhausted rephrasing
techniques, the next step is to refresh the witnesss 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
wouldnt 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. Thats the
reason why the rules of evidence allow witnesses to refresh their recollection. Here
is the process youll need to follow to help your witnesses remember:

Step 1. Show that the witness cant remember.

Q. What is the worst fraternity on this campus?

A. I cant remember.
A. I dont know.
A. I cannot recall.
A. I used to know, but I cant think of the answer right now.

Showing the witnesss lack of memory is an essential step that cant be overlooked.
Unless you can show that the witness doesnt remember, you wont be allowed to
refresh his recollection. Theres a world of difference between the witness who
cant remember and the witness who remembers the wrong answer. You cant
refresh a witnesss recollection simply because hes giving you a bad answer. (You
can impeach him, but you cant 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 theres 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 youd let me smash a beer can against my forehead, that always triggers my
memory.

The important thing to remember about refreshing memory is that youre not
limited to showing the witness documentary evidence. Typically, youre going to
use written documents to refresh witnesses memories, but understand that youre
not limited to paper exhibits. If theres anything that helps the witness remember,
you should be permitted to use it to refresh their memory.

During this step, its 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, lets say youre dealing with a police officer who makes lots of DUI arrests
each year. By the time the case reaches trial, its understandable that he might
need some help remembering the exact details of this arrest, as opposed to the
dozens of other cases hes worked. Before he uses his report to refresh his
memory, youd 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 hes 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 youve smashed a beer can on your forehead, are you able to
remember which fraternity is the worst on campus?

[If the item doesnt refresh his memory, you can still try to get the testimony in
through the Past Recollection Recorded evidentiary predicate, but you wont 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 youve refreshed your memory, please tell us, what is the worst
fraternity on campus?

A. That would be Delta house.

Its a good practice tip to tell your witness to turn over the document before
answering, so the jury can see that hes 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 isnt merely parroting
what he just read.

Hopefully, youll 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, its bound to
happen. When it does, use these quick tips to help refresh your witnesss memory,
and your case will be back on track before anyone even notices.