Can You Be Sent to Jail for Not Remembering Something?

Memory is a funny thing. It is not as accurate as we think.

My mom had a better memory of my childhood than I. She told stories that I believe happened, and I was there (obviously), but I don’t remember. Some of these stories I’ve adopted, and I don’t remember whether I’m remembering what actually happened, or I’m just remembering the story my mom told me.

Other times, I remember parts of an experience. A few days ago, it was cold in Orlando. And, every time I walked outside “in the cold”, it reminded me of my trip to Berlin a few years ago. The air felt just like Berlin. It’s funny how something as simple as the temperature has a way of transporting you to places and memories.

Some songs are attached to memories. I heard a great obscure song the other day, and it reminded me of my days as a college DJ at KSLU. Five seconds into this song, I’m back in a DJ booth with turntables and carts everywhere (song, Postcards from Paradise by Flesh For Lulu–told you it was obscure–yes, a shameless display of my alternative credentials, almost as unauthentic as telling people to be authentic…).

There are plenty of things I want to remember, but I just can’t. Here’s an odd one, and maybe you can answer this question. First, some background.

My significant other and I were big fans of Pleasure Island (PI). For those of you unfamiliar, think back to a time when Disney was at the peak of their powers, no competition in sight. They decided to create an adult playground full of dance clubs, beach bars, and comedy clubs. At midnight, they celebrated New Year’s. Fireworks. Dancers. Every night. It was a sight to behold.

But parties aren’t meant to last.

In 2008, Disney decided to shut down Pleasure Island. On that final night, we headed over to our favorite PI club, 8 Trax. The last night was far more emotional than I had expected. I know, its just night clubs, right? Well, at the height of its powers, there was nothing like it. I don’t think there ever will be again.

And so, 2:00 a.m. rolled up, and half the people in the place were crying. Seriously. I get a bit misty-eyed just thinking about it. The last song played in 8 Trax was, of course, Donna Summer. Last Dance.

At the time, Orlando’s law did not permit a club to stay open past 2:00 a.m. Donna Summer ended the night at 2:00 a.m. The lights went up. People were hugging. Crying. Nobody wanted to leave. Then the DJ comes back on, dims the lights, and says something to the effect of “Well, its past 2 am, but what can they possibly do to us, shut us down? One more song.”

I cannot, for the life of me, remember that “one last song.” I have my theories. I was there, after all. My top guess is “You’re the One That I Want” from Grease (8 Trax was a 70’s – 80’s club, after all). If you were there that night and remember, let me know. It’s driving me crazy.

Ok. I’ve got to get to the legal stuff at some point, or my web optimizer people will disown me as a client because my non-legal ramblings make their job harder. They will politely remind me that my misty-eyed night club nostalgia will not attract new clients (my web people are from Silicon Valley, and I’ve never physically met them, though, all “web people” claim they’re from Silicon Valley, it instantly gives them more credibility. It could be that they’re renting space from some gas station in rural Alabama and I’ll never be the wiser).

Ok. Back to legal stuff.

Is it possible to be sentenced to jail because you don’t remember something? These sort of memory problems occur quite frequently in battery domestic violence cases, where the alleged victim starts to feel guilty the day after her soul-mate was arrested.

In our case for today, Mr. Terry Gray was subpoenaed to testify in a trial against Wisben Samedi. Gray v. State, 572 So.2d 1013 (Fla. 4th DCA 1991). The government wanted Gray’s testimony because, approximately 10 months prior, Gray said some things that would implicate Samedi in a felony drug case. These statements were not “sworn” statements.

Gray took the witness stand and didn’t remember what he said 10 months ago. So, the prosecutor gave Gray a copy of the police report, because the arresting officer wrote down some of the things Gray said. Still, Gray didn’t remember saying these things.

After this memory lapse, the trial judge found Gray in contempt of court, stating that “I can’t hold it against [Gray] that he doesn’t remember. I can hold it against him if I think he is lying.” To add insult to injury, the judge also nudged the state to file felony charges, proclaiming that “I suspect she [the prosecutor] can charge him with perjury if he is lying”. id. at 1014.

Gray was sentenced to five (5) months and twenty-nine (29) days in jail.

All because he didn’t remember.

The appellate court reversed Gray’s conviction, based upon an old Florida Supreme Court case where a man was sent to jail because he could not remember who told him something, nothing that:

“It would indeed be unthinkable to hold that a trial judge may send any man to prison for contempt of court because he says he cannot remember which of three men made statements to him on some occasion more than a year in the past merely because the judge thinks he should remember. A witness should not be coerced to swear that he remembers a thing if he does not remember it.” State ex rel. Luban v. Coleman, 138 Fla. 555 (Fla. 1939).

[See also, J.A.S. v. State, 920 So. 2d 759 (Fla. 2d DCA 2006), R.T.L. v. State 764 So2d 871, and Andreu v. State, 696 So. 2d 1220 (Fla. 2d DCA 1997)]