If you’re called to provide a deposition or testify in a hearing, before a grand jury or in a trial, you’ll take an oath to swear to tell the truth. Intentionally lying can get you charged with perjury – particularly if the lie is material to the matter about which you’re testifying. Too often, witnesses (especially those who don’t have legal guidance) think they can get around this by saying that they don’t remember something.
If you’re testifying in a white-collar case against your former boss, for example, you may not want to be responsible for them going to jail. You might decide to say you don’t recall seeing records of transactions that turned out to be illegal. Who can prove that you did see them?
Maybe you’re afraid you did something illegal by not reporting what you saw. You think asserting your Fifth Amendment rights would make you look guilty, so you just say you don’t recall. What’s wrong with that? Plenty.
First, if you say you don’t remember something and that’s not the truth, you are lying under oath whether it’s provable or not. If it turns out you casually mentioned or questioned the transactions to someone at the time and that comes out, you could face perjury charges.
Prosecutors know how to work with that answer
Further, prosecutors and other experienced attorneys typically aren’t stopped by an “I don’t recall” answer – especially if they find it implausible. They often have evidence ready to show witnesses to “help” them remember. They may be ready with evidence to show just how unreasonable it would be that you didn’t recall seeing these transactions when it was your job to review all transactions. Attorneys typically don’t ask questions they don’t know the answer to.
If you have been subpoenaed to provide testimony in a criminal case, even if you know you have no criminal culpability, it’s always wise to have legal guidance to protect your rights and help ensure that your testimony doesn’t cause or add to any legal jeopardy for you.