, Photo of Paul Faugno Esquire ,

Reputable. Respected. Results-Oriented.

Why “I don’t remember” can’t save you from a perjury charge

On Behalf of | Nov 20, 2023 | Criminal Defense

If you’re subpoenaed to provide testimony in a criminal case – maybe one involving a relative or friend – it’s critical to understand your legal options and the potential criminal consequences you might face if you provide less-than-truthful testimony.  

You likely know that lying under oath is perjury, which is a criminal offense. Not everyone who says anything untrue under oath is charged with perjury or obstruction of justice. It largely depends on whether the lie is material to the case and was done with the intention of thwarting the prosecution.

How assertions of failing to remember can be proven false

Too often, people think they can avoid perjury and obstruction charges and still protect someone (and possibly themselves) by answering with “I don’t remember.” After all, prosecutors can’t prove what you do and don’t remember, right?

In many cases, they can. If you testify that your brother was with you on the night he’s accused of fatally shooting someone, but you sent a text to someone indicating that you didn’t see him all night, that can be used as evidence of perjury. 

Even if there’s no clear evidence of perjury, it may just not be plausible that you don’t remember something. If you say, for example, that you don’t recall whether your brother came home with blood-soaked clothes, that’s hard to believe. Further, prosecutors know how to “help” witnesses remember things by showing them photos and other evidence to make their lack of recall more implausible.

Can you plead the Fifth?

If you’re considering claiming to not recall things to protect yourself from criminal charges, you have an option to plead the Fifth. This is true even if you didn’t break the law. The U.S. Supreme Court has ruled that a witness can “have a reasonable fear of prosecution and yet be innocent of any wrongdoing.” Of course, if you do have some involvement in a crime (such as hiding a weapon for someone), you may be able to make a plea deal with prosecutors that will result in a reduced charge or prevent you from being prosecuted at all if you have useful evidence against the person already charged. 

Before you talk to police or prosecutors about a crime – and certainly before you go under oath – it’s smart to get legal guidance to protect your rights and to have someone advocating for your best interests.