If you’re required to testify in a deposition, hearing or trial, you may want to protect the person who’s being investigated or already been arrested and charged. However, you know that lying when you’re under oath is perjury and that you could face criminal charges if you’re caught in a lie.
If you have some culpability yourself and answering certain questions could implicate you in a crime, you can assert your Fifth Amendment right against self-incrimination. However, that’s only going to make prosecutors look more closely at you – if they aren’t already. Further, if prosecutors are more interested in getting a “big fish” than in any relatively minor offense you may have committed, they may offer you immunity from prosecution, which is a common way of preventing key witnesses from “pleading the Fifth.”
If you want to protect someone from suffering serious legal consequences for their actions, or maybe you’re afraid of what could happen if you testify against them, why not just rely on “I don’t recall” as an answer? Can prosecutors prove what you can and can’t remember?
Prosecutors can show that you do recall
Often, they can prove it. At least they can show that it’s unreasonable that you wouldn’t recall it. If you say you don’t recall your boss telling you to move some company funds to their personal bank account, that would seem highly unlikely. If you later told a colleague about it, their testimony would refute yours.
Even if you “don’t recall” something that wasn’t quite so out of the ordinary, prosecutors can be ready with documents to help “refresh” your memory. It can become increasingly difficult to make anyone believe that you still don’t remember.
Don’t let anyone tell you that saying “I don’t recall” is an acceptable answer unless it’s the truth. You could be charged with perjury or obstruction of justice for claiming not to recall something any reasonable person would – particularly if by giving that answer you’re impeding an investigation or prosecution.
If you’re called to testify or answer questions under oath in any venue, it’s always wise to have your own legal representation to protect your rights. Don’t take advice – legal or otherwise – from anyone who isn’t solely committed to representing your interests.