This should be a fairly simple concept, but oddly enough I can’t find a straight answer just from googling alone. Maybe I’m not using the right search terms, but anyway…
So the phrase “I do not recall” is popular among Hollywood criminals as a way of neither lying nor telling the truth in a court of law or deposition. Obviously if a mobster killed a man, for example, he wouldn’t want to confirm that he was at the scene of the crime on the night of the murder, but if the prosecutor later produced evidence that proved he was, he wouldn’t want to be on the hook for perjury either. So he would just say “I do not recall being there.”, giving him deniability so later when if the prosecutor does produce such evidence, he can say “Oh yeah that’s right, you’ve refreshed my memory. Yeah sure I was there, but only for a minute to do something else that totally didn’t involve death.”
But what I want to know is, does this actually work legally? You’d think perjury would never be an issue or a concern of any sort if “I do not recall” is really the magical phrase that allows you to lie and yet covers you if you get caught. Why would any criminal ever say anything else? If this phrase is really that effective, perjury convictions should be rare to nil.
I also ask because during Orange is the New Black, there was an episode where [spoiler alert] Piper uses the phrase “I do not recall” several times to avoid admitting to having known a drug lord that she was supposed to testify against, because she is afraid of the repercussions should the drug lord happen to walk. Afterwards her lawyer makes a big deal about how she “perjured” herself. But I don’t understand. Shouldn’t “I do not recall” have meant that she didn’t really perjure herself because she wasn’t outright lying?
Also, what about the 5th Amendment? Why not avoid “I do not recall” by simply pleading the fifth and never testifying at all if doing so might get you in trouble?
So to sum up, does “I do not recall” work? If yes, then why? If no, then why? And if kinda, then what situations does and does it not work for?
If you really do recall but say that you don’t, then you’ve committed perjury. It’ll just be really difficult to prove it. But lawyers might still use the threat to try to scare you into recalling.
IANAL but my understanding is as the defendant in a criminal trial once you take the stand and testify in direct, you may not then rely on your fifth amendment rights not to answer a question. (I suppose you could if it were about a different crime.) In a civil case you cannot refuse to testify at all.
“I don’t recall” was used frequently in the Watergate hearings. It’s typical Washington doublespeak used to tone down the negative connotations behind more objectionable type phrases. A defendant who says “I don’t remember” sounds like he’s lying or incompetent. “I don’t recall” makes him sound educated or at least a product of class.
I don’t remember is a perfectly good answer if it’s true. If you remembered the answer in a deposition you gave the day before, or a letter you wrote that week, or whatever, you will probably be deemed to be lying and convicted of perjury or held in direct contempt.
This is incorrect. What you can’t do is use the Fifth Amendment as “both sword and shield”; that is, pick and choose which questions to answer; if you waive the Fifth in regard to a particular topic you must answer other questions on topic.
This is also incorrect, at least to the extent that you can refuse to answer certain questions in a civil case if your answers might incriminate you. If you meant you can’t refuse to testify entirely (like a criminal defendant can) you are correct.
Her lawyer told her that she perjured herself when she said “Uh, I don’t remember” because she does in fact remember, or at least her lawyer reasonably believes she does remember.
If I remember that I was at the BadaBing on Friday night at 9:30, it would be perjury for me to testify that I don’t remember whether I was at the BadaBing or not. It would be a lie. The reason it’s a safe lie to tell is that it would be very hard for you to prove that I really did remember. How can you prove what I did or did not remember? If I really was at the BadaBing and I testify that I wasn’t there, it’s easy to prove that I lied. But how do you prove that I really can remember?
It’s hard, you’d have to show evidence of some sort, like that I told people I was going to lie about it, or I told lots of people before the trial all about what I saw at the BadaBing, but now I somehow can’t remember.
And the fifth amendment only protects you so far. If the prosecutor gives you immunity for crimes you may or may not have committed yourself at the BadaBing that night, you can indeed be compelled to testify, even if you have to admit to crimes. That’s because now that you’ve been granted immunity, what you say can’t be used against you in your own trial. The fact that Fat Tony will have you clipped if you rat is no help against being required to testify, except to get you into witness protection.