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Witness memories, however flawed or imprecise, are often the core evidence at trial.\u00a0 Yet anyone who studies memory knows that recollection of event gist<\/em> (\u201cI\u2019ll never forget being robbed\u201d) may be long-lasting but accurate recall of event detail<\/em> fades within hours, or at most a day, after the occurrence.\u00a0 This is shown in what scientists have dubbed the “Ebbinghaus curve.”<\/p>\n And when the witness forgets a detail (or more) the trial lawyer\u2019s arsenal has various tools to respond, courtesy of the Rules of Evidence.\u00a0 The three main ones are the act of refreshing the witness\u2019 recollection (Rule 612); introducing the witness\u2019s own or adopted statement as past recollection recorded (Rule 803(5)); and the underused hearsay Rule 804, which permits use of prior testimony, dying declarations and statements against interest when a lack of memory renders the declarant \u201cunavailable,\u201d i.e.<\/em>, \u00a0when the witness \u201ctestifies to not remembering the subject matter\u2026\u201d<\/p>\n All of these exceptions were written with the sincere but forgetful witness in mind.\u00a0 They of course are equally available when a witness feigns a loss of memory, a phenomenon alleged to occur with particular regularity and significant consequence in criminal prosecutions.\u00a0 The feigned amnesia phenomenon is viewed as a byproduct of witness intimidation, claimed to be pervasive.\u00a0 See, e.g.<\/em> Browning, ARTICLE: #SNITCHES GET STITCHES: WITNESS INTIMIDATION IN THE AGE OF FACEBOOK AND TWITTER, 35 Pace L. Rev. 192 (2014); NOTE: FORFEITURE OF CONFRONTATION RIGHTS POST-GILES: WHETHER A CO-CONSPIRATOR’S MISCONDUCT CAN FORFEIT A DEFENDANT’S RIGHT TO CONFRONT WITNESSES, 14 N.Y.U. J. Legis. & Pub. Pol’y 281 (2011).<\/p>\n Regardless of whether those claims and data are accurate, the sense that this is occurring is the motivation for a change in Pennsylvania Evidence law.\u00a0 Effective April 1, 2017, a claim of loss of memory will add three categories of out-of-court statements that become admissible for their truth.\u00a0 The new Pennsylvania rule is 8031.(4).\u00a0 In its entirety, it reads as follows:<\/p>\n \u00a0Prior Statement by a Declarant-Witness Who Claims an Inability to Remember the Subject Matter of the Statement.\u00a0 A prior statement by a declarant-witness who testifies to an inability to remember the subject matter of the statement, unless the court finds the claimed inability to remember to be credible, and the statement:<\/p>\n (A) was given under oath subject to the penalty of perjury at a trial, hearing, or other proceeding, or in a deposition;<\/p>\n (B) is a writing signed and adopted by the declarant; or<\/p>\n (C) is a verbatim contemporaneous electronic recording of an oral statement.<\/p>\n The COMMENT to the Rule explains its purpose:<\/p>\n Pa.R.E. 803.1(4) has no counterpart in the Federal Rules of Evidence. \u00a0The purpose of this hearsay exception is to protect against the \u201cturncoat witness\u201d who once provided a statement, but now seeks to deprive the use of this evidence at trial.\u00a0 It is intended to permit the admission of a prior statement given under demonstrably reliable and trustworthy circumstances\u2026when the declarant-witness feigns memory loss about the subject matter of the statement.<\/p>\n \u00a0\u00a0 A prior statement made by a declarant-witness having credible memory loss about the subject matter of the statement, but able to testify that the statement accurately reflects his or her knowledge at the time it was made, may be admissible under Pa.R.E. 803.1(3).\u00a0 Otherwise, when a declarant-witness has a credible memory loss about the subject matter of the statement, see Pa.R.E. 804(a)(3).<\/p>\n Litigators contemplating this Rule should consider the following:<\/p>\n A recent (early 2017) Pennsylvania Superior Court OPINION affirmed the general proposition that the words ‘I don\u2019t remember’ are not subject to impeachment with a prior inconsistent statement, as the witness has offered nothing substantive to contradict.\u00a0 Commonwealth v. Watley<\/u>, 2016 PA Super 311 (12\/29\/16)(\u201ca mere failure of recollection\u2026might not be inconsistent with an earlier statement\u2026\u201d).\u00a0 That decision, reflecting long-standing evidence principles, will no longer be the law in Pennsylvania, at least if the prior statement was signed and adopted, electronically recorded, or made under oath.<\/p>\n","protected":false},"excerpt":{"rendered":" Witness memories, however flawed or imprecise, are often the core evidence at trial.\u00a0 Yet anyone who studies memory knows that recollection of event gist (\u201cI\u2019ll never forget being robbed\u201d) may be long-lasting but accurate recall of event detail fades within hours, or at most a day, after the occurrence.\u00a0 This is shown in what<\/p>\n","protected":false},"author":31,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"generate_page_header":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[3,6,7,11],"tags":[],"coauthors":[238],"class_list":["post-1933","post","type-post","status-publish","format-standard","hentry","category-advocacy-and-evidence-blog","category-criminal-law","category-evidence","category-trial-advocacy"],"yoast_head":"\n![\"\"](\"https:\/\/law-dev.temple.edu\/aer\/wp-content\/uploads\/sites\/3\/2017\/03\/forgetting-curve-300x210.jpg\")
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