When Memory Falters – Protecting the File

In some of my classes I conduct demonstrations regarding the reliability of witnesses: a person comes in and delivers me a package or makes a statement, then leaves. Fifteen minutes later I ask the students to complete “witness statements” regarding the event. While each of the students is relatively clear headed and have no reason to falsify the statement, they invariably vary significantly as to the description of the person, what was done or said, the description of the person, and so on.  The problem, of course, is worse when the witness is under stress or has reason to slant their recollection.

This has many implications for paralegals. I’ve previously posted on the importance of documenting the file regarding both what has happened and, often, what has not happened. A case posted on leagle.com demonstrates the necessity of documenting the file and having regularly established procedures in order to protect the paralegal and attorney from false claims as to what was said during conversations with witnesses and clients.  In People v Goosby,  a scared and reluctant witness testified at trial that the prosecutor’s office paralegal who contacted her to schedule an appearance at the preliminary hearing, ” “I did not say that. I remember the paralegal asking me if the handkerchief dropped.  But I said I didn’t — like what I said, I was asked by the paralegal if there was a time when this handkerchief dropped and I did not say no because I told her that I’m scared to witness… At first I told her that I was scared. But . . . she told me that you need to go there to testify. And I told her that — why do I need to go there? They were already arrested. And she told me you need to go there to testify that the handkerchief was dropped. 

The issue in the case was the discoverability of a subsequent email exchange between the paralegal and the prosecutor documenting the call.  The court’s discussion of this issue is itself interesting, but for me the important point was “[The paralegal] did not recall any specifics about the telephone conversation, but she said she generally does not discuss cases with witnesses, nor does she tell them how to testify. [She] also said it is her standard practice to document any witness information in an email sent to the prosecutor assigned to the preliminary hearing.”

Such standard procedures, when followed faithfully, can often “save the day” for the legal team. They are an essential part of file and client management. In this instance the legal team was well served by having followed this procedure for documenting the file.

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