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In the context of testifying about a claim made, what is the difference between these two constructs.

  • "I never said that"
  • "I don't remember saying that"

You're being asked to recall something.

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    "That" — using a pronoun there is a terrible idea, because now you have pronoun trouble. What is the 'that' to which you are referring? Duck or wabbit? Commented Jan 9 at 18:23
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    @Harper-ReinstateMonica - The "that" is in the context of the question being asked. Conversationally, answers to questions do not need to be complete, standalone statements. Commented Jan 10 at 18:43

2 Answers 2

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"I don't remember saying that" is true unless you do remember and you did say that. "I never said that" is false if you said that. The former is a safer statement w.r.t. perjury (in case you actually did say that), because the prosecution would then have to prove that you did remember saying that (not impossible, but it is much more difficult to prove). Of course, the prosecution would have to prove that you did say that, to make a perjury charge stick.

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    One element of perjury is thar the false statement must be made knowingly. A witness who falsely testifies "I never said that," believing the statement to be true (whether because of a faulty memory or otherwise) does not commit perjury.
    – phoog
    Commented Jan 8 at 22:16
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    @EvanCarroll "that's not not in this answer": right, the comment was intended to suggest an improvement to the answer. Details vary by jurisdiction, but knowledge that the statement is false is generally a necessary element.
    – phoog
    Commented Jan 8 at 22:51
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    @dan04 it's entirely possible for someone who has been recorded saying something to believe that they haven't said it, and the possibility increases as time passes. They might have forgotten the incident entirely or they might have thought they said something else. They might have thought so at the time -- people do sometimes substitute words in their speech, and they don't always notice.
    – phoog
    Commented Jan 9 at 0:06
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    @dan04 "the person did say the thing, then "I never said that" exposed as being a lie". A lie requires intent, so in your case it doesn't necessarily mean that is a lie.
    – Tom Bowen
    Commented Jan 9 at 10:00
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    @phoog I think your addition (if true) is more of a correction and that this answer is wrong as is. Maybe you should just submit it as a separate answer. Commented Jan 9 at 16:09
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"I never said that" is not perjury if the witness believes the statement to be true because, as noted elsewhere, knowledge that the statement is false is a necessary element of perjury. However, many people will recognize that memory is sometimes faulty, so they will say "I don't remember saying that" because they want to be careful about the assertions they're making. This can even happen when perjury is off the table, for example in an discussion between friends or family members:

Alice: I thought you said the library was closed.

Bob: I certainly don't remember saying that.

Lawyers may encourage this approach because even though it is difficult to prove that someone knew that "I never said it" was false, it is much easier to prove than it is to prove the same of "I don't remember saying it." After all, it's impossible for anyone other than the witness to know the witness's state of mind when they were on the stand with absolute certainty; as a result, we have various standards of proof in various contexts, and it's better to avoid having to deal with that if you can.

In other words, a prosecutor is less likely to pursue perjury charges for a "don't remember" statement, and it's to your benefit to reduce the possibility of being prosecuted even if you sincerely believe that you never uttered the statement in question.

(Of course, "I don't recall saying" might make a witness seem less credible or less reliable than "I never said," so the witness might want to take that into account, too.)

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