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If a witness has been deposed and effectively denied having any recollection of events relevant to a case, can that testimony be used to keep her from taking the stand?

I'm imagining something like a motion in limine relying on either Rule 401 or 403.

I'm looking not for deductions based on experience or the text of the rules, but for case law addressing the issue.

  • I would have thought it would be rather difficult to rely on such a witness. "In your deposition you said you didn't remember, but now you say you remember it perfectly...." would seem an obvious start for cross examination. Given this, why would either side want to call this witness? – Paul Johnson May 9 '19 at 14:11
  • The scenario I'm imagining involves calling an adverse witness with the expectation that they'll stick to their deposition testimony and that the jury will draw adverse inferences from it. – bdb484 May 9 '19 at 18:16
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You can be called on, and then you would say you do not remember or whatever is the truth.

The judge can rule your testimony is not needed if it is excessive or is not relevant, but that would happen as an objection after you are called or subpoenaed.

https://ilr.law.uiowa.edu/print/volume-103-issue-4/an-epistemological-argument-against-federal-rule-of-evidence-403s-cumulative-evidence-clause/

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  • Why can't the witness be excluded on 403 grounds? – bdb484 May 8 '19 at 18:16
  • If it would be excessive or something the judge can say your testimony is not needed, but that would happen after you are called on. – Putvi May 8 '19 at 18:18
  • Why can't it be done through a motion in limine? – bdb484 May 8 '19 at 18:47
  • Usually those motions are in regard to a specific thing not a person. For example, the judge would say that you cant talk about X, but you would still have the right to call a person to talk about Y. – Putvi May 8 '19 at 18:50
  • Sometimes witnesses are excluded. I am not saying they aren't in all cases, but each side has the right to try to call you then the other side would object or the judge would say your testimony is not needed. It may be ruled that you don't have to testify, but the party wanting your testimony has the right to ask that you do even if it is eventually overruled. – Putvi May 8 '19 at 18:52

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