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October 18, 2004

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Fed.No.84

I've been taught to ask:

Do you know what the meeting was about? Do you remember why you were at the meeting? Do you remember who told you to go to the meeting. Do you remember where you were sitting at the meeting? Do you remember to whom you talked about? Were there donuts or coffee at the meeting? Were you tired that day. Etc.

The person who taught me this said it will accomplish one of two things:
1. Establish that the person has a very good memory about everything, except what matters. Then, at trial, impeach the witness by saying:
"Now, you remembered, X, Y, Z, etc., isn't that true?"
"But you didn't remember what you just told us, isn't that true?"
"And, indeed, what you just told us is the only thing that really mattered, isn't that true."
"So, you remembered mundane details about a meeting, but not what you just told us, is that what you're telling us?"
"But now, suddenly, you remember the most important part, correct?"
"And it just so happens that what you remember is helpful to your boss, isn't that true?"

Then, at closing, talk about how we remember shocking things and ask the jury whether the witness who remembers boring things but not shocking things is really telling us the truth.

2. Establish that the person has an awful memory, and thus is not reliable.
"L&G, X didn't remember anything when we talked earlier. But now she seems to remember precisely what helps her boss' case. Does she remember what happened at that meeting, or does she remember what she was told to 'remember' about Oct. 5?"

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