When a Witness Answers "I Don't Know"

When a witness answers "I don't know" in a deposition, it's not necessarily your cue to move on to another topic. Say that you've just asked Mr. Jones what happened in a meeting on October 5. Mr. Jones responds that he doesn't know. If you already have a version of the October 5 meeting you want to present through other witnesses, you might be happy that Mr. Jones's claimed lack of knowledge will prevent him from giving a different account.

Or will it? At trial, Mr. Jones might remember October 5 and dodge your attempt at impeachment by saying that following the deposition, he refreshed his recollection by talking to others who were there or by reviewing documents.

It's one reason why you can't always stop at the "I don't know." Ask the witness whether he knew once and now can't remember, or whether he was never in a position to know. Follow up accordingly. If he was never in a position to know, pin him down as to why, which will probably eliminate him as a witness concerning the events of October 5. If he was once in a position to know, ask what he could do to refresh his recollection of events, then consider doing those things yourself--for example, by showing him documents or telling him what others have said.

Comments

[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?"

[Mullislaw]

This post is quite old, but I ran across it because I am trying to research just what an "I don't know" answer establishes as a fact. Seems to me it only establishes that the witness has no personal knowledge to answer. To a Q: Was the traffic light green?, the answer "I don't know" does not establish that it was green. Is "it could have been green" a reasonable inference from that answer? Maybe, I suppose, as there are limits to the colors (red, green, yellow only, so it could have been any of those).

How about this:

Q We talked about the distance she was from you at the time you first saw her. How far away from you do you think she was when you first applied your brakes?

A I don't know.

Q Was it more than 10 feet?

A I'm horrible at judging distance. All I know it happened instantly. In my mind it was instantly.

Q So you don't know if it was more than 10 feet?

Counsel: Objection. Asked and answered. Answer if you can.

A I don't know.

In this exchange, is the witness' answer "I don't know" evidence that she could have been 10 feet away when she first applied her brakes? I know this stuff hardly ever comes up, and I cannot find anything anywhere.