Cross-Examining a Witness Who Says ‘I Don’t Remember’: Memory, Documents and Contradictions

The answer is a starting point, not a verdict on credibility

A witness gives a detailed account in examination-in-chief. On cross-examination, an important question produces a different response: “I don’t remember.” The answer may concern a date, a conversation, a payment, a signature or the very circumstances that would allow the court to test the account. Repeating the question more loudly rarely solves the problem.

The advocate needs to identify what the witness cannot recall, what the witness still remembers, and what reliable material can establish independently. The objective is a useful evidential record. A reluctant witness need not confess dishonesty for a careful cross-examination to help the case.

This guide combines a short examination of original advocacy writing with independent practical analysis for Pakistani lawyers. The illustrative questions below are original examples, not quotations from a book or an actual Pakistani trial. Their use depends on the pleaded issues, the evidence available and the court’s directions.

Read and download the original material

• Download Francis L. Wellman’s The Art of Cross-Examination — free EPUB.
• Download the same book — plain text.
• Read Chapter VI, printed page 108, online.
• Read Chapter XIII, the Bellevue Hospital cross-examination.
• Download the Qanun-e-Shahadat Order, 1984 — government-hosted PDF.
• Read the public preview of Stephen Gassman’s Chapter 15, or obtain the book from its ABA publisher.

The Wellman downloads are the complete book, not just the selected passages. The EPUB is an electronic book, not a PDF. Gassman’s complete chapter requires authorised access; the preview is not a free full-book download. The government PDF is a reference copy: consult the current official legislation record for amendments before relying on it in proceedings.

What the original books actually contribute

Wellman’s book was first published in 1903. The Project Gutenberg transcription carries a 1904 imprint. In Chapter VI, page 108, he discusses a reluctant witness who may answer “don’t remember” when approached too directly. His advice is to build the inquiry gradually through connected facts. Earlier in that chapter, he discusses securing the witness’s position before confronting it with a contradictory letter.

Chapter XIII supplies a concrete example. Thomas J. Minnock repeatedly claimed difficulty recalling his marriage date. Counsel moved from the precise date to the approximate interval and then to a certificate. Later, earlier accounts and sworn testimony were used to test his narrative. These are historical advocacy examples, not Pakistani precedents.

Wellman’s language includes assumptions about women and courtroom tactics that should not be adopted uncritically. The useful lesson is careful sequencing, not stereotyping or humiliation. Read the relevant chapter.

Stephen Gassman’s Cross Examination: A Primer for the Family Lawyer, published by the American Bar Association in 2017, contains Chapter 15, “The ‘I Don’t Remember,’ ‘I Don’t Know’ Witness.” Its accessible opening distinguishes plausible inability to recollect from implausible claims. Only that public preview, not the complete restricted chapter, forms part of this article’s source base.

Separate four answers that lawyers often confuse

“I don’t remember” describes a claimed present memory gap. “I don’t know” may mean the witness never knew. “That did not happen” is a denial. “I was not there” challenges the opportunity to observe. Collapsing these answers into one category risks an inaccurate submission later.

Each follow-up should address one proposition. A witness who cannot give a calendar date may still remember the meeting, participants and sequence. Conversely, a witness who confidently supplies a date may lack any personal knowledge of the transaction attached to it.

Define the memory gap before challenging it

A broad answer can conceal several narrower positions. Establish whether the witness has forgotten the event completely, has forgotten one detail, or recalls the event but cannot distinguish it from similar occasions.

In an original illustration involving a disputed meeting, counsel might ask:

• Do you remember visiting the office that month?
• Do you remember meeting the defendant there?
• Is your difficulty about whether the meeting happened, or about its date?
• Do you remember anyone else being present?
• Have you retained any note or message about that visit?

The answers determine the next branch of the examination. If the witness remembers the visit but not its date, asking again whether the witness remembers visiting wastes the admission already obtained. If the witness remembers nothing, a detailed question that assumes attendance may produce confusion rather than clarification.

Do not manufacture a commitment by altering the answer. A fair record might be: “You remember the visit, but cannot now identify the day.” It would be inaccurate to record that as an admission that the witness cannot remember the transaction at all.

Test surrounding facts without demanding false precision

Where the exact date is uncertain, use a meaningful event that the witness can independently recall. A transfer order, an admitted appointment, a recorded journey or an undisputed delivery may supply a useful reference point.

An original sequence could ask whether the meeting happened before or after the witness changed office, whether it occurred while a named colleague was still posted there, and whether an acknowledged email preceded it. Avoid offering a string of possible dates until the witness merely selects one to end the questioning.

Approximation can be valuable, but label it accurately. “Before the transfer” is not the same as “on 12 March.” The advocate should preserve the level of certainty the evidence actually supports. An invented precision is vulnerable when compared with objective records.

Assess selective recollection through material facts

A witness may remember the allegation yet forget the circumstances needed to examine it. That pattern deserves attention, but it does not automatically establish dishonesty. Some central events are easier to recall than incidental details.

Choose a memory gap that bears on the issue. In a disputed payment, the amount, recipient and opportunity to see the money change hands may matter far more than the colour of the room. An argument built on forgotten trivia can distract from a serious weakness.

Compare the witness’s certainty fairly. Ask what supports the remembered portion: a personal observation, an entry, a later conversation or an assumption. The important result may be that the witness’s confident assertion rests on information supplied by someone else. That is a different weakness from selective memory and should be argued as such.

Decide what job the document must perform

Before producing a document, write down the intended use. Is it a possible aid to recollection, an earlier statement to be used for contradiction, or a record through which the underlying transaction must be proved? These purposes require different preparation.

An office register may accurately record a payment even though a particular witness cannot authenticate it. An earlier statement may establish what a person said without, on that basis alone, proving the truth of everything said. Treating every useful-looking paper as interchangeable is a major preparation error.

The relevant Pakistani provisions

The Qanun-e-Shahadat Order provides the applicable statutory framework. Indian BSA and BNSS section numbers from an online guide should not be transplanted into a Pakistani submission.

Consult the statutory text, especially PDF pages 62 and 67 for Articles 140 and 155–157. These provisions do not turn every memory gap into a contradiction or make every document admissible.

Refreshing recollection: identify what changed

If the court permits reference to a record, ask the witness to explain the position after reading it. Has an independent recollection returned? Does the witness still remember nothing personally but rely on an entry believed to be accurate? Or does the witness merely accept that the paper contains particular words?

These are distinct evidential positions. A clear examination records which one exists. The phrase “memory refreshed” should not become a convenient label that conceals the absence of actual recollection.

An original example concerning an attendance note might proceed:

• Is this the note you identified as your own?
• After reading it, do you now remember attending the meeting?
• Which part do you personally recall?
• Are you relying on the note for the date?
• What enables you to say the entry was accurate when made?

The advocate should be ready for either outcome. A record that genuinely restores an adverse witness’s memory can strengthen the opposing case. Use it because its evidential purpose is understood, not simply because any answer seems preferable to a memory gap.

Contradiction: prepare the passage and the proof

Build a short working schedule with three columns: the material present answer, the precise earlier passage, and the route by which the earlier record can be proved if disputed. Record its date and author separately. This makes the exercise manageable and reduces accidental misquotation.

Ask the witness about the identified proposition rather than reading an entire statement and demanding a general explanation. Allow the answer to be recorded. If the witness disputes making the statement, the examination has exposed a proof question; it has not resolved that question by force of repetition.

An original illustration is a witness who now says there was no meeting but whose signed account records attending one. That is a direct conflict to investigate. If the witness merely cannot recall the meeting now, describe that answer accurately. The earlier record and the present memory gap may still matter, but the advocate should not present them as two unequivocally opposite factual assertions.

In criminal proceedings, identify separately any restrictions attached to a police statement or investigation record. This guide supplies no general permission to read a case diary or use every police statement as substantive proof. The proposed use requires its own procedural analysis.

Omissions need context

An earlier account may omit the detail now emphasized. Before treating the omission as significant, establish what that account was intended to cover, whether the witness was asked about the subject, and whether the document records a complete narrative or a limited answer.

A brief entry prepared to record arrival time may reasonably omit a conversation. A detailed account specifically addressing the disputed conversation presents a different question. Compare like with like. The persuasive point comes from the context and importance of the missing detail, not simply from the absence of a word on the page.

Give the witness an opportunity to explain the difference. A translation problem, an abbreviated record or an answer confined to a particular question may require investigation. The court should receive the actual discrepancy and explanation, rather than counsel’s edited version of either.

An original payment example: choose the useful branch

Assume a witness says that a defendant received cash but cannot remember the day. Counsel has an acknowledged message and a receipt whose authorship remains disputed. The immediate objective is to establish the witness’s basis for the allegation, not to announce that both documents prove payment.

• Were you personally present when the cash was handed over?
• Did you see who received it?
• Can you identify the occasion without giving its exact date?
• Does the message refer to that occasion, or a different transaction?
• Did you make or see the receipt being made?

If the witness was absent, the next useful inquiry concerns the source of the information. If present, questions about observation become important. If the receipt is disputed, counsel must address its proof. If the date alone is uncertain and immaterial, there may be no reason to spend the examination attacking it.

This example illustrates a decision process, not a universal script. Change the objective when the answers change. Persisting with a prepared accusation after its factual premise has disappeared weakens the examination.

What to do when the witness remembers nothing

The examination may still establish an important limit: the witness cannot now independently support a specified detail. Preserve that limit without converting it into an admission that the opposite proposition is true.

Then assess the remaining proof. Is there another observer? Is the document capable of being proved independently? Does the party relying on this witness have another evidential route? A memory gap may substantially weaken one case and barely affect another.

Likewise, “I cannot remember the accused being present” does not mean “the accused was absent.” Counsel’s eventual submission should identify the missing support for presence rather than invent affirmative evidence of absence. The same discipline applies to meetings, consent, payments and signatures.

Preserve the answer and stop at the useful point

An advocate should know what result justifies ending a line of questions. That result may be a confined uncertainty, an admitted lack of personal observation, an identified earlier account, or an explanation that can be compared with another record.

Once the useful point is clear, unnecessary repetition may invite speculation or allow an unsupported detail to enter the record. The court can assess the significance during submissions. There is no requirement to make the witness agree with counsel’s entire argument in the witness box.

Maintain a calm tone and allow necessary clarification. If an answer is ambiguous, resolve the ambiguity once. If it is clear but unfavourable, accurately record it and reconsider the next question. Treating disagreement as a failure to understand is an easy way to lose credibility with the court.

A preparation checklist for the advocate

• Identify the material proposition and why it matters to the case.
• Separate uncertainty about a detail from uncertainty about the whole event.
• List the available records, their authors and the witnesses needed to prove them.
• Prepare the exact earlier passage where a contradiction is proposed.
• Plan a different next question for genuine recollection, continued uncertainty and denial.
• Mark the point at which the inquiry has achieved a useful result.
• Draft the eventual submission in terms of what the witness actually said.

The strongest handling of “I don’t remember” combines patience with evidential precision. It asks what can fairly be established, what remains uncertain, and how the available records fit the issue the court must decide.

Related reading: Evidence articles, criminal law analysis and the judgment collection.