Language Log

Memory in the courtroom

The ability to remember things seems to be a big thing in the current Lewis "Scooter" Libby perjury trial, where alleged forgetting of who said what to whom and when it was said looms large. Some witnesses can't seem to even remember what they meant in their own notes. Let's return to Steven Suyat's perjury case just one more time  (I  promise, this will be the last installment) to see how memory was treated there. In the first episode, if you remember, I discussed the prosecutor's four questions about "organizing contractors" (see here). The second installment described the prosecutor's two trick questions about the meaning of  "scab" (here). Now I turn to the seventh and last count against Suyat, in which he was charged with being inconsistent in his answers in his previous testimony during the trial of his two fellow union business agents. The topic was a past conversation between Mr. Torres and Mr. Kupau, the head of the union. Here's what the prosecutor used as that evidence:

Prosecutor: Do you recall him ever having any conversation with Ralph Torres?
Suyat: Yes.
Prosecutor: Do you recall when those were?
Suyat: No.
Prosecutor: Do you recall what he said to Ralph Torres?
Suyat: No.
Prosecutor: Do you recall what Ralph Torres said to him?
Suyat: No.

It seems pretty clear that Suyat had some memory of the conversation between Kupau and Torres but he can't recall when this happened or what they said to each other. But three hours later, when it came time for the defense attorney to cross-examine Suyat, the following exchange took place:

It looks like the prosecutor could be right. There is certainly some inconsistency here. But does it amount to perjury? Could Suyat's memory have been stimulated during this three-hour  period? And what are we to make of Suyat's "I believe" and "I think" here? Was Suyat more comfortable venturing what he thought had happened to the friendly defense attorney rather than facing the risk of being tentative, incomplete, or inaccurate to the  oppositional prosecutor?

It seems that when we fear the consequences of being inaccurate, even slightly inaccurate, we prefer to say "I don't know" or "I don't recall." It's often safer to say this than to offer fuzzy memories or sheer  speculation. But was Suyat equally careful and consistent in his answers to the prosecutor's other questions? Here's where looking at the entire testimony is important. Throughout his testimony, Suyat did the following:

In the same way that he struggled with "organizing contractors" and defining "scab," Suyat apparently was trying hard to answer questions as accurately as he knew how. Perhaps a clue to his alleged inconsistency in Count 7 may have come from the verbs used by his questioners. In his direct examination, the prosecutor consistently asked Suyat to "recall," whereas the defense attorney's cross-examination questions consistently used the verb, "remember."  It's at least possible that Suyat inferred that "recall" requires a precision of memory that he didn't, or couldn't, manage, while "remember" allowed him to give qualified responses ("I believe" and  "I think"). We don't get much help for this distinction from common dictionary definitions of the two verbs but there may be at least some support in Merriam Webster's Collegiate Dictionary's synonym section:

In trials, opponents often don't understand each other's uses of word meanings. Suyat's testimony was no exception. For example, the prosecutor had used "accurate" to mean "true" while Suyat's responses showed that he understood it to mean "specific" or "complete." And the prosecutor had used "approve" to mean "knowing about or agreeing with" while Suyat's answer showed thaat he understood it as "officially endorse" and "counter sign." There were other disagreements about word meanings as well. "Recall" and "remember" may have been still another case of trains passing in the semantic night.

Trials have serious problems when words are understood differently by the participants and it's common for such misunderstandings to be converted into points against defendants. As a  result, it's non unheard of for witnesses to sound inconsistent, or even to be inconsistent. At least part of the problem stems from the fact that trials are conducted in a language register that's unfamiliar  to defendants and witnesses. And trials are conducted under a strict set of conversational rules that are well-known to attorneys and judges but can turn out to be a confusing mire of potential tricks for even that mythical reasonable person that many of  our laws talk about.