Michael Cohen, the “Fixer” for Donald Trump, has recently gotten off the stand in the former President’s “hush money” trial. Those taking aim at Cohen’s testimony have pointed out frequent use of “I don’t recall” on many of the details. That, of course, is a common response for many witnesses, and jurors generally understand that we aren’t human tape recorders and cameras storing the minutiae of all our past experiences for later recall on the witness stand. Events years ago won’t be remembered with precision. Often, however, the expectations of questioning counsel, and sometimes judges and jurors as well,  can be very high and “I don’t know” or “I don’t remember” can sound like selective evasion. In Michael Cohen’s case, for example, the emphasis is that fact that he claims to accurately remember the focus of one 90 second call, but has forgotten a host of other surrounding details, puts a question mark over his candor.

In a recent survey of judges on factors of witness credibility (Denault, Leclerc & Talwar, 2023), one judge responded in a way that is worth quoting at length:

“If the witness only remembers what is relevant to his or her case but has forgotten the rest, it affects his or her credibility. Too good a memory can also be suspect. We underestimate the fact that we often don’t remember much! Trials can take place years after the fact. Unless the witness can say why he or she remembers something accurately, the testimony may be suspect.”

In Cohen’s case, he said why he remembered that detail but not others: because it related to his own reimbursement. But more generally, witnesses need to take care in the ways they frame their gaps in recall. If you don’t know, then “I don’t know” is absolutely the right answer. But there are a few principles to apply in communicating that. In this post, I’ll share six.

1. Own It (No Defensiveness When It’s the Right Answer)

“I don’t recall” is the correct answer whenever you don’t recall. As long as you’re using it accurately and avoiding the gamesmanship of cloaking what would be a negative answer, a proud and definitive “I don’t remember” is the way to go. And there is no need to add an apology to that. You’re only there to testify to what you can recall, and no reasonable attorney, judge, or jury should expect more than that.

2. Make It Relative: It’s Not All or Nothing

While you can’t testify to what you don’t remember, our memories often are not binary. You won’t remember it all or remember nothing. Instead, your memories are likely to be somewhere on a spectrum between the two. You may not know the answer to the specific question being asked, but you may still have a general level of recall that is responsive: “I don’t recall if those were the exact words he used, but I do remember that as the tone of the conversation.”

3. Justify It: Why Do You Not Recall?

In assessing credibility, it helps jurors to know why the witness recalls some things and not others. The judge quoted above is correct: when witnesses remember what is helpful but are stumped on the rest, that appears suspicious. But often there are good reasons why some details are seared into your memory while others slip away. If you do get a chance to explain, talk about your attention, your purpose, and what else was going on. Often, if you don’t recall one detail it is because you were focused on another more important detail.

4. Freeze It: Beware of “Creeping Certainty”

When witnesses think about the prospect of upcoming testimony, it is only natural to start devoting extra amounts of thought to the events that are at the heart of the testimony. It may be things you haven’t thought about closely in a while, but you find that the more you think about it, the more you feel you recall. But be careful about that feeling — one strong possibility is that you aren’t becoming more accurate about your memories, you’re just becoming more certain about it. The better course is to carefully set out what you do and don’t remember early on, and lock that in place.

5. Diversify It: Knowledge is More than Just Recall

Remember that having a vivid memory of something is one way of knowing it, but there are at least two others: you might have records or documents that you trust, and you might have knowledge of a general pattern and practice that you tend to follow in such situations. Think of it as a three-drawer filing cabinet: if there is nothing in the “recall” drawer, there might be something in either the “records” or the “patterns” drawers. You can use any of those sources in explaining what you know as long as you’re clear about which one you’re using.

6. Stick With It: Don’t Wobble or Backtrack

When a gymnast finishes a routine with a fancy dismount, they aim to “stick the landing” without taking extra steps backward and forward. Witnesses should do the same: once you answer the question, stay there. If the answer is “I don’t recall,” don’t change that in response to more persistent questioning. Witnesses will rarely if ever remember more just due to artful cross-examination. So if the questioner isn’t satisfied with your “I don’t remember” and circles back to ask again in a different way, calmly but persistently give the same answer.

Ultimately, a witness testifying honestly to what they do and don’t recall is typically going to do fine. It is only when you allow the questioning attorney to make you act defensive or feel guilty about what you don’t know that you’re allowing a problem to creep in. When you don’t recall, just confidently say that you don’t recall.

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