written by guest blogger and NITA 2014 Next Generation Faculty member, Monique Carter
When it comes to cross-examination, the “I don’t know” (IDK) response should put the skilled examiner on high alert. This is an opportunity to move the theme and theory forward. When “IDK” is given, it’s time to pull out tools from the proverbial tool chest and start drilling down.
Tool 1: The Knock Out. The “IDK” can give you the opportunity, if appropriate, to take the witness out of game or issue. When the witness gives the “IDK,” commit the witness to the “fact” they don’t know: they cannot say it did happen—or vice versa, they cannot say it did not happen. Keep the follow-up question to either option and move on. You don’t want to get greedy and waste the opportunity.
Tool 2: The “Oh Really.” This is a chance to develop why the “IDK” is unbelievable or actual perfidy. Step one in using this tool is to remind or establish for the finder of fact why the witness should reasonably know the answer. For example: “You were in the operating room? You were the lead surgeon? You were responsible for the supervision of your resident in the operating room? You were responsible for the patient’s surgery?” Step two: “You don’t know who marked the patient with the ‘tattoos’ identifying the surgical site?” You may, depending on your examination, take a more pithy approach. For example: “You were the lead detective on the case? And you don’t know . . . ?”
Tool 3: The Prior Recollection Recorded. If the witness gives the “IDK” and you can establish the existence of (1) a record (2) concerning a matter which the witness once had knowledge (3) but now has insufficient recollection to testify fully and accurately (4) and the record was made/adopted by the witness (5) when the matter was fresh in his memory (6) and reflects that knowledge correctly, then you can utilize the hearsay exception, prior recollection recorded (Federal Rules of Evidence § 803(5)). According to FRE § 803(5), the witness reads the record into evidence; however, since this is cross-examination, I would advise that you read the record into evidence to maintain control.
Tool 4: The Impeachment. If a witness testifies “IDK” to something that she previously had knowledge of, it’s possible to impeach by asserting that the “IDK” is actually an inconsistent statement. Generally, it is true that the testimony of a witness indicating “IDK” is not inconsistent with a prior statement describing the event. However, if you can establish that the “IDK” is inconsistent “in effect,” then you may be able to impeach. For example: “You made a report with the police immediately after the car accident? You knew the condition of the roads then? You gave a deposition one month later? You knew the condition of the roads then? You spoke to my investigator two months ago? You knew the condition of the roads then?” Once you have established the witness has “in effect” testified inconsistently to a prior statement, you can impeach her with the prior inconsistent statement or statements.
Tool 5: The Refresh Recollection. The “IDK” and the “I don’t remember” are similar, but require different approaches. It is improper to attempt to refresh the witness’s recollection when “IDK” is the answer and not a failure of recollection; the witness has not technically testified to a failure of recollection. You should make every effort to elicit a response that demonstrates a failure of recollection. For example: “Are you saying you don’t remember?” or “Are you sure you don’t know?” or “Is it more likely you don’t remember?” If the witness expresses a failure of recollection or a possible failure of recollection, you can then attempt to refresh his recollection. You should state in your question what you are suggesting will refresh his recollection. For example: “Would looking at the progress notes refresh your recollection?” or “Would looking at the surgical notes refresh your recollection?” Even if the witness persists with “IDK,” the finder of fact will be dubious of the testimony when you present the witness with items that would naturally refresh his recollection.
Tool 6: Let It Go. It is natural for the human mind to forget facts. If the witness truly does not remember, then it may be best to let it go and move on. If the question is that important, make use of the other tools or have another witness establish the fact.
You, as the practitioner, get to decide how to handle the “IDK.” Each tool has its own benefit. Employ whichever tool advances your theme and theory best. Ultimately, next time you get the “IDK,” you will have the tools in your chest to win the war.