What is the Purpose of a Witness Statement?
Witness statements are a vital component of legal proceedings, serving as a foundational piece of evidence that can significantly influence the outcome of a case. They offer an opportunity to create a coherent and factually accurate narrative that outlines the events in question from the perspective of the person providing the statement. This narrative acts as a roadmap that highlights what is known and what isn’t known about the case. As such, a well-crafted statement can support or contradict other forms of evidence collected through the course of the case.
One primary purpose of a witness statement is to collate all the factual information from a witness into a single document that can be used in future legal proceedings. This centralization of details helps to standardize the account of events across various witnesses, and can be invaluable in ensuring consistency as a case progresses. Each statement should be created with the purpose of providing clear details that answer key questions, such as who was involved in the case, what occurred, where and when the events took place, and why the facts are of particular importance. It’s imperative that none of this information be omitted, particularly in preparation for a potential trial.
Expertly drafted witness statements provide benefits for the party seeking their use . Having these details in an easily accessible format allows for quicker reference, as opposed to having to continually ask questions of the various witnesses throughout the litigation process. This is especially useful in day-to-day management of an evolving legal action. Additionally, they also help to reduce the need for further questioning and interviews with a witness to gather additional details, and they prepare parties for any challenges brought against the final testimony or statements made by the witness.
Witness statements are a key instrument for protecting and establishing key facts related to a legal proceeding. Because they are made under oath, they become legally binding, meaning the witnesses could be held liable for any falsehoods they included in their statements, and they could face both civil and/or criminal charges if it is proven that a false statement was purposely made. However, this area of law is complex and unique, and requires exhaustive study of case law in order to understand the nature, rules and requirements of witness statements. This is why their use, maintenance and preparation should be strongly handled by a qualified attorney with appropriate experience and depth of legal knowledge in this specific area.
Key Elements of a Witness Statement
A witness statement should contain the following information:
(a) The name, address and age of the witness and the status of the witness as at the date of the events. For example, was the witness a tenant or employee of his/her employer?
(b) A background account of the witness’ role and relationship to the events.
(c) A chronological account of the events that the witness has seen or heard. It is useful to write in the first person.
(d) Any documents that the witness has seen, recalls, or been given. Each exhibit should be numbered and referred to in the witness statement.
(e) A clear statement that the statement is truthful: "I certify that this statement is true to the best of my knowledge and belief and that I understand that if it is discovered to have been made of my knowledge and belief, as to which was bad enough or beyond reasonable grounds or if it is shown to have been made of my knowledge and belief, as to which there was bad enough or beyond reasonable grounds, it will be a criminal offence."
Process for Drafting a Witness Statement
The drafting process of a witness statement should be approached in a systematic manner. The process of drafting a statement can be divided into five stages:
Preparation
The solicitor must ensure that he or she is fully informed about the topic to be covered in the statement. Don’t be afraid to ask the witness questions which may not feature in the final statement e.g. "What is your opinion about X?" or "Do you like or have a problem with any of your neighbours?" Such questions could be helpful in eliminating any allegations of motive, however, do bear in mind that it is important to maintain focus and stick to the issues.
The order of your examination-in-chief is also important, this should be logical and connected. The order should follow the chronology of events but, as a rule, should mirror the order of events in your final signed statement. You should consider any rules or protocols within your organisation which might dictate the order in which statements should be taken from witnesses within your organisation.
Drafting the witness statement
A statement template may provide a good starting point for your draft; a format/template that includes clear numbering, headings and sections will help to make a draft easy to read and logically sequenced. You should explain to the witness that you are going to read your notes to them and type up the statement in real-time.
Any errors noted by the witness should be amended straight away to prevent any misunderstanding.
The witness should read through the statement at least once to check that they are happy with its summarised version of what they said. If you have taken down the statement whilst they have been there, then they should only need to read through it the once.
The witness should be encouraged to highlight any spelling errors or issues with the type face. If the witness does claim that they don’t recognise the signature on the statement, then you need to ask them to sign it and note on the bottom of the first page of the statement that they do not accept that the signature on the statement was theirs. This will avoid any later allegations that the witness has retracted their evidence when in fact they simply did not understand that the document merely summarised what they had previously said. In this context, it is best to ask an off-the-shelf graphics expert to compare the signature to other signatures on a witness statement or other contemporaneous documents prepared at the same time.
Prompt completion of this stage is desirable to minimise the possibility of witness interference.
Final review
This stage should be able to take place quite quickly if you have prepared the first draft well. You should read through the statement not only for typographical and grammatical errors but also to check the content. It can be helpful to sit down and read the statement out loud.
Once the witness has confirmed that the statement is a true and accurate record of the interview, you should invite him or her to sign the statement. If they refuse, you will need to write the phrase ‘this witness states that he does not wish to sign this statement’ on the final page, before signing and dating it yourself.
Pitfalls to Avoid in Crafting a Witness Statement
There are several common mistakes I see time and again when working with clients on their witness statements. While certainly not an exhaustive list, these oversights bear mention:
Mistake #1: Writing it Down and Forgetting About It
I have reviewed witness statements prepared by our client, who had all good intentions, but they went about the process all wrong.
For example, after a car accident, a person may be contacted by an attorney or insurance adjuster.
The attorney or insurance adjuster asks them a bunch of questions over the phone and tells them they will prepare a statement or formal report on the information they provided.
The individual does not see the importance of that statement or formal report. They say thank you and hang up.
Immediately following this discussion, they put that out of their mind and carry on with their life.
Mistake #2: Lying
The second major mistake happens.
This is obvious.
If you just lie, then no statement you provide will help.
I have done at least 250 jury trials in my career. Jurors are good. They can sniff out a lie – especially an intentional lie.
Rest assured, if a jury thinks you are lying, to use their term, you are going to lose.
Most jurors will not be able to see through an inability. But a knowing deception will not only harm the case , but it will make the lawyer look foolish.
Mistake #3: Providing Incomplete Information
Your lawyer will not be able to know what all needs to be in the statement or report.
Remember, they are not there with you as it all happens.
They can ask questions to get everything they need when they do your deposition.
However, do not go into the deposition with a stale statement.
Practice makes perfect.
So, if you take the time to think through your statement and refine it, you won’t be as nervous when it comes time to give a deposition on the matter.
Mistake #4: Giving a Memory-Enhanced Statement
It is one thing to write down all that you recalled about the events that are critical to your testimony.
It is quite another to give your lawyer a statement where you have thought about it for three or six months, rehearsed your speech, and you answer well-thought-out questions.
Now, we can’t prove that you have amped up your memory to help your testimony.
But we can ask the jurors.
When we have jurors, say focus groups, read the statement and they think that you were answering scripted questions, then this is a problem.
You will be accused of rehearing your answers.
That is the nice way of saying that you are lying.
Bottom Line
You want to avoid all of these common mistakes when drafting your witness statement.
Legal and Professional Considerations
Witness statements are not always required in civil litigation. However, when they are necessary they carry with them some legal requirements. These requirements dictate both how witness statements must be written (with certain specific formalities) and under what circumstances statements may be read into evidence where the maker is unavailable to give evidence in person.
According to r 29.1(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR), a notice of intended use of a statement of evidence must be filed and served on every party before a witness statement may be used at trial. A notice under r 29.1 must state whether the maker of the witness statement is available and willing to attend court to give evidence and if the maker is not available and willing to attend court, why they are not. A notice of intended use must only be given within 21 days before trial.
There are a number of other requirements for witness statements, which apply both to the giving of a notice of intended use and to the form and content of the witness statement itself. For example, witness statements must be filed and served on all parties (r 29.3(1) UCPR).
Further, if a party wishes to use a statement of evidence at trial where the maker is unavailable to attend court to give evidence, that party must make an application to the court and provide notice to all parties and the Registry. As per r 30.12(1)(a)-(c) UCPR, a party must state in the application to the court:
i) the names of the witnesses whose statement they wish to use at trial – r 30.12(1)(a);
ii) the subjects to which the statements from those witnesses relates – r 30.12(1)(b); and
iii) the reasons why the maker of the witness statements is unable to attend court to give evidence – r 30.12(1)(c).
The statement of evidence itself must be in a document that complies with the requirements of Schedule 5 to the UCPR: •r 30.11(2) and (3) UCPR.
The court allows a witness statement to be used at trial despite a party’s failure to comply with the above requirements, "if satisfied there are good reasons" for non-compliance – r 30.11(5) UCPR.
In addition to complying with the above statutory formalities, there are a number of other best practice guideposts to which legal practitioners should adhere when drafting witness statements.
Final Review and Editing
Review and finalization of a statement is essential. You cannot well draft a statement, send it to a witness and simply assume that what comes back is ready to be tendered or filed. Every unsigned statement is likely going to have some level of apparent infirmity. We have been to trials where statements were tendered without proper and full proof whereas the flimsiness of the signature on them came in for examination and critique from the other side. We might tender a statement and it comes back with all types of writing across it (and our position is to keep the thing looking as simple as possible regardless of content). Every time this happens the fault is ours because we have put the thing out there in an incomplete and less than professional way.
Assuming you are ready to go after you have taken a statement, consider a few points. It is usually appropriate to recall the witness, ask him or her a few question to confirm what you heard and then advise him or her that you are going to read the statement out loud. As you read it you decide what changes, if any, need to be made. If there are changes, take your witness line by line through the statement. Read it out loud (present simple) and have the witness make the change out loud (present simple).
When the statement is final you will type a new version and have it signed by the witness. We generally accept a signature anywhere on fluid paper (not a typewriter or computer) and would not want to see a typed first name , middle initial, last name on a statement. With the document now typed you go back with the witness and ask him or her to read this new version. If he or she seems fatigued or leaves the office thinking he or she has done the same job twice, we owe them one more minute by reading the current version out loud again with the witness actually making the corrections as we read.
With everything in order, ask the witness sign and date, which is important. The witness signs today, the statement is dated today, which may be some months or years before trial. Down the road they all look the same. The more information the witness can recall after the event is worthy of inclusion. Witnesses are generally good about seeing the verbatim statement and most agree with the few changes we sometimes make.
Tread with care if you suggest to your witness that he or she may want to speak with an attorney prior to signing the statement. Many will suggest that this is an attempt to taint the witness, even if it is a modest recommendation. Bringing in a lawyer who had nothing to do with the statement could make it weaker.
Like with case notes the handwritten or electronic statement should be printed in such a way that it appears to be the real paper, possibly in color even if initially typed black and white. With all this pre-trial work it is rare that we have to go back and take another statement. However, it could happen if you are challenged on how you summarized the interview.