Legal Ethics and Reform

The Memory of Witnesses Fads Waiting for the Adversary System to Get to Tria

The legal system in the US has witnesses waiting for two, three or four years till they get to testify at trial.

Such interminable delay allows for a loss of recollection or the mis-recall of critical details. This basic human problem of lost or mis-recalled recollection is exacerbated by the legal systems’ practice of having lawyers “prepare” witnesses to testify. A skillful lawyer can plant seeds of doubt about key recollections such that a witness eventually begins to believe a different version of the truth than they witnessed.

This problem of faulty recollection has been known to trail attorney for centuries. Lawyers with witness testimony likely to help their client are anxious to get on with the trial; but lawyers who are not comfortable with the witness recollections likely to come into the record at trial angle for delays, hoping for enough failed memory to give an opening during cross examination to put doubt in jurors’ minds about the quality of the witness’ testimony.

The process has to be streamlined so the witness testimony is memorialized earlier in the process and that it is receive into the record without lawyer “tampering” through the witness preparation process.

Perhaps upon the filing of a lawsuit both sides should prepare a list of possible witnesses. That group should be called into the judges chambers and under oath asked what they recall about the matters at issue. These witness should also be asked to name other people who might have something useful to contribute. The judge should then interview this second group of possible witnesses. These records should be preserved and made available to the jury at trial.

For more information about the problem of the fading human memory it is recommended that readers refer to Kluge: the Haphazard Construction of the Human Mind by Gary Marcus.

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