WHAT TO DO WHEN YOUR WITNESS

FORGETS
by Elliott Wilcox

T hings 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.