A faulty memory is embedded in how our American legal system operates. In fact, this principle is one of the most important justifications for why statutes of limitations exist. A statute of limitation provides a specific amount of time during which someone can file a lawsuit. Forgetfulness – or the possibility of a bad memory – also shapes the rules that govern evidence gathering and how that evidence is used. This concept also plays a role in determining the burden each party bears to prove his or her side of the case. So, what can be done when a witness cannot remember?
The Importance of Memory
Not surprisingly, memory – or a faulty one – is almost always an issue in a lawsuit. This is because oral testimony requires a witness to remember events that may have happened days, weeks, months, or even years prior. When a witness’s impressions are wrong, his or her memory can become unreliable. Aside from remembering facts incorrectly, intervening events can also shape our memory. While some people have the rare gift of remembering small details accurately even years later and others cannot even remember recent events properly, most of us fall somewhere in the middle. In other words, we can probably remember important facts accurately but the smaller details – which may be critical to a case – will be fuzzy.
Addressing a Forgetful Witness
Since memory can be a complicated issue, attorneys on both the defense and plaintiff sides use different strategies in and out of the courtroom to verify facts. This may include, but is not limited to:
- Providing witnesses access to records: If it helps the witness more accurately remember (and testify) an attorney may provide the individual with documents that have already been admitted into evidence. This provides the witness with a reference that may help them remember important details regarding the event in question.
- Corroborating with other evidence: When a witness’s oral testimony is inconsistent, it is often useful to look to other sources of factual information for comparison. This also can provide more credibility to a witness whose memory has some flaws if the evidence fully supports his or her testimony.
- Examination of the witness: When the most important evidence in the case is oral testimony, an attorney may ask him or her several questions designed to challenge the witness’s credibility. This is a useful tool that can undermine or support a witness’s testimony depending on how the oral examination goes.
There are many other ways in which an attorney can prepare his or her client – or the case witnesses – to ensure testimony is reliable. The other side may try to impeach the witness, confront testimony by reading into the record, or using other tactics. While a witness’s reliability can be challenged, it can also be bolstered.
For years, the attorneys at Matt Pfau Law Group has represented Nevada clients in cases involving personal injuries. Our skilled Las Vegas attorneys work closely with clients to determine how their memory may play a role. Our lawyers seek out solutions to possible issues before they become a problem for the case. To learn how we can help, contact us today for an initial consultation.