Cross-Exam: Chapter 20, The “I Don’t Know” Witness

Dealing With The “I Don’t Know”, Or “I Don’t Remember” Witness

A witness will give evasive answers when they have been pinned down in an obviously harmful chapter, or when an honest answer will contradict the witness’ side of the case or whose credibility is under attack.

3 Steps To Recognition of the Cross-Examiner’s Control

1. An evasive answer is the witness’ way to communicate that the lawyer has successfully confronted him.

2. Do not believe that this is a successful technique by the witness to extricate himself form the confrontation.

3. Do not become frustrated, angry or loud with the witness.

It is important to be able to recognize and differentiate between when a witness honestly doesn’t know or remember and when these are likely dishonest answers.

There are certain questions to which it is reasonable for the witness to say that he can’t remember or doesn’t know.  If after suitable probing, the witness holds to his claimed lack of knowledge, let it be.

The witness may be saying something useful when he uses “I don’t know/remember.”  The witness either never possessed the information or the witness may have once possessed the information, but has not forgotten.

Techniques for Showing that “I Don’t Know/Remember” Answers Are Illogical

Meticulously demonstrate either:

1. This is the kind of information the average person would have if he was in the circumstances of the witness. OR

2. The witness is within that special group of people of whom such knowledge is expected.

The likely results of these 2 techniques are that the jury won’t believe the witness doesn’t know/remember and the honest answer is harmful to the position of the witness and the witness will be discouraged from further giving evasive answers.

The cross-examiner should highlight that the witness doesn’t remember facts, except when they are asked about facts that help them.

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