Personal Attention.
Aggressive Defense.

Photo of Thomas C. Mooney

Why it’s not smart to rely on “I don’t recall” in sworn testimony

On Behalf of | Dec 24, 2023 | Criminal Defense

If you’re providing sworn testimony in a criminal case, lying under oath can result in a perjury or even an obstruction of justice charge. That’s true whether you’re being questioned in a deposition or a trial, and whether your testimony is verbal or in writing.

People who are facing a criminal charge have a Fifth Amendment right not to testify against themselves, so they often don’t take the stand in their own defense. Defendants don’t have a legal right to pick and choose what questions they’ll answer once they’re on the stand. 

If you’re called on to provide testimony regarding someone else, you may be concerned that your testimony could be used to charge you with a crime as well – for example, if someone gave you evidence to hide. 

What you should know about “taking the Fifth”

Unlike a defendant, a witness has the right to “take the Fifth” for select questions. That’s why prosecutors will sometimes offer witnesses immunity or a plea deal if they’ve committed an offense but not one as serious as that of the person against whom they need them to testify fully and honestly.

It can often be proven that “I don’t recall” is a lie

Some witnesses – generally those who don’t get legal guidance – think they can get around taking the Fifth and arousing suspicion about their own culpability while also avoiding a perjury or obstruction charge by simply saying they don’t recall certain things. After all, they think, no one can prove what they do and don’t remember. 

That’s not always true. In some cases, it simply defies reason that someone wouldn’t recall something – particularly if it involves witnessing a crime or being told by someone that they committed a crime.

Further, there may be evidence that they were aware of a crime. Maybe they texted or told someone about it. Maybe a witness saw them at the scene with the defendant. You don’t know what evidence prosecutors have to challenge a foggy memory.

If you’re called to provide testimony in a criminal case, particularly one in which you may have even a small amount of culpability, it’s always smart to get legal guidance to protect your rights before talking to prosecutors or any authorities.