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.

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    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? May 9, 2019 at 14:11
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    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, 2019 at 18:16

1 Answer 1


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.


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    Why can't the witness be excluded on 403 grounds?
    – bdb484
    May 8, 2019 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, 2019 at 18:18
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    Why can't it be done through a motion in limine?
    – bdb484
    May 8, 2019 at 18:47
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    @bdb484 It would be very, very unlikely for a judge to grant a motion in limine on that ground. The fact that someone doesn't remember something in a deposition doesn't necessarily imply that the person won't recall it later on at trial. Perhaps a motion in limine might be granted, however, if someone had advanced Alzheimer's disease and the disruption to the witness would outweigh the benefit to the court.
    – ohwilleke
    May 8, 2019 at 21:04
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    I assume that's correct; I'm just having a terrible time trying to find authority on this point.
    – bdb484
    May 9, 2019 at 13:20

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