What a Witness Statement Is For

Statements are the most commonly drafted and most commonly misused documents in any contested matter. The rules governing them are short, the practice around them is elaborate, and the difference between a statement that helps and one that does damage is usually a matter of what has been left out.

What a statement should contain

Who the witness is. Enough to establish their position and how they came to be involved: their role, their relationship to the events, and the period over which they were in a position to observe anything.

What they perceived, in order. Set out chronologically, because a decision-maker reading it for the first time is trying to build a sequence and a thematic arrangement makes that harder than it needs to be.

The source of each piece of knowledge. Whether the witness saw it, was told it, or inferred it from a document. This single discipline removes most of the problems that statements otherwise develop.

The limits of what they know. An honest statement says where the witness's knowledge stops, and a statement that appears to know everything invites the question of how.

The documents they actually handled. Referred to by exhibit number, and described as documents the witness saw at the time rather than documents they have been shown since.

What a statement should not contain

Argument. The submission that follows from the facts belongs in the submission. A witness who argues invites cross-examination on the argument rather than on what they saw.

Summaries of the file. A statement retelling documents the witness never handled adds nothing and creates opportunities for error, because the witness cannot answer questions about material they only read last month.

Other people's evidence. What a colleague saw belongs in the colleague's statement. Repeating it produces a document full of hearsay and a witness who cannot support half of their own account.

Opinion. Except where the witness is qualified to give it, which is a separate subject covered in when an opinion becomes evidence. Ordinary witnesses give facts.

Drafted vocabulary. Phrases the witness would never use are the first thing an experienced cross-examiner picks up, and they undermine the passages where the witness is being entirely accurate.

The witness's own words

They hold up under questioning. A witness asked to explain their own phrasing can do so; a witness asked to explain somebody else's drafting is immediately in difficulty.

They convey the limits naturally. Ordinary speech carries qualifications — I think, about, roughly — that formal drafting removes, and removing them makes a statement more precise than the witness's actual memory.

They should be taken early. An account given before the witness has read the documents or discussed the matter is worth considerably more than one given afterward, as the difference between recollection and reconstruction sets out.

They can be tidied, not rewritten. Correcting grammar and removing repetition is ordinary practice. Converting the account into somebody else's prose is not, and the difference is visible.

A record of the taking helps. A note of when the statement was taken, by whom, and what the witness was shown, answers questions that otherwise become awkward.

Form and verification

Sworn or declared. Most systems accept an unsworn declaration made under penalty of perjury in place of a sworn affidavit, which removes the need to find anybody to administer an oath.

The verification carries consequences. A false statement in a verified document exposes the maker to criminal liability, and that is precisely what gives the document its weight.

Signed and dated by the witness. Not by a representative, and a statement signed by somebody else on the witness's behalf is worth very little in most proceedings.

Exhibits identified. Each document referred to marked and described, as attachments and exhibits sets out, so that the reader is never guessing which page is meant.

Corrections made openly. Where a statement needs amendment, a supplementary statement is far better than a quietly revised version, because the revision will be noticed.

Common failures

Too long. A statement covering material the witness does not know about buries the passages where they are speaking from direct knowledge. The reader stops distinguishing between the two, and the whole document is discounted together.

Uniform confidence. Where every sentence is asserted with the same certainty, none of them carries any information about which parts the witness actually remembers well.

Adopting the case theory. Statements that track the argument too neatly read as constructed, particularly where several witnesses use the same phrases.

Silence on the awkward point. An account that simply omits the difficulty is more damaging than one that addresses it, because the omission is what gets explored.

Taken too late. Memory degrades, and it degrades in a particular direction: toward whatever account the witness has heard most often since.

The most useful test of a statement is whether the witness could answer questions about every sentence in it. Where they could not, the sentence is either somebody else's evidence or an argument, and in both cases it is doing harm rather than good.

Length is the enemy in a way that surprises people. A short statement of what one person actually knows is far more persuasive than a long one covering the whole case, because the reader can see immediately what this particular witness contributes.

Taking statements early is the single practical step that improves them most. An account given before the documents have been reviewed is closer to what the witness remembers and further from what they have since worked out.

Verification matters more than form. Whether the account is sworn or declared under penalty of perjury, the consequence of a false statement is what makes anybody take it seriously, and it should be explained to the witness before they sign.

Finally, a statement that admits uncertainty is stronger than one that does not. Decision-makers are used to witnesses who remember everything perfectly, and they discount them accordingly.