Is It Appropriate to Impeach a Witness for Lack of Memory ?

In James v. State, 765 So. 2d 763, 766 (Fla. 1st DCA 2000), the district court adopted the reasoning employed by the Oregon Court of Appeals in holding: The controlling issue on appeal is whether it was appropriate to impeach a witness' asserted lack of memory by showing substantive statements that she made when her memory was fresh. As a matter of logic, that is not appropriate impeachment by inconsistent statement. The fact that a witness once stated something was true is not logically inconsistent with a subsequent loss of memory. The only thing that is inconsistent with a claimed loss of memory is evidence that suggests that the witness in fact remembers. James, 765 So. 2d at 766 (quoting State v. Staley, 165 Ore. App. 395, 995 P.2d 1217, 1220 (Or. Ct. App. 2000)). In support of the contrary position, the State quotes from Morton v. State, 689 So. 2d 259 (Fla. 1997), where the court determined that "in a case where a witness gives both favorable and unfavorable testimony, the party calling the witness should usually be permitted to impeach the witness with a prior inconsistent statement." Id. at 264. However, the State fails to include the very next sentence, where the Morton Court clarified its holding by stating that, "of course, the statement should be truly inconsistent, and caution should be exercised in permitting impeachment of a witness who has given favorable testimony but simply fails to recall every detail unless the witness appears to be fabricating." Id.