You may have seen media clips in high-profile criminal and civil cases of people giving the response “I don’t recall” to questions. Sometimes, they rely on that answer throughout their testimony to the point where it seems ridiculous.
The only time that’s an appropriate answer is when it’s the truth. If you’re under oath, lying is perjury, and you could be charged with that – especially if what you’re falsely claiming not to recall is material to the case. People too often think they can get away with it because no one else can prove what they do or don’t remember. In fact, sometimes someone’s ability to recall information can be proven.
Say that your boss is accused of creating fake invoices for their own financial benefit. You don’t want her to be convicted, so you say you don’t recall seeing any of these invoices. If you previously mentioned or showed them to someone, however, prosecutors can show that you likely do recall. Even if prosecutors can’t prove that you recall something you say you don’t, they may be able to present enough evidence to show that’s implausible.
Should you “take the Fifth” instead?
Taking the Fifth involves asserting your Fifth Amendment right not to incriminate yourself. If you haven’t done anything wrong, this is only going to make it look like you did. You could find yourself under investigation even if you weren’t previously.
Further, if prosecutors think a witness or potential witness has valuable information, they may offer them a deal to testify to what they know in exchange for not being prosecuted for anything they admit to. If you’re involved at a low level in a much larger white collar (or other) crime, this could be in your best interests.
With that said, taking the Fifth is often a legitimate response to certain lines of questioning. As such, if you’re being investigated for any kind of white collar offense or even if you’re required to testify in a case involving someone you work with or otherwise know, it’s wise to seek experienced legal guidance. This can help you protect your rights and avoid criminal culpability whenever possible.