Witness statements
All litigators know that a case may stand or fall on the quality of the witness statements of the principal witnesses. Quality for this purpose means that a witness statement must contain not merely the truth but the whole truth and nothing but the truth. A witness statement must be endorsed with a statement of truth by or on behalf of its maker which says that the maker believes the facts stated in the document are true.
Proceedings for contempt of court, which can result in imprisonment for up to 2 years and/or an unlimited fine, may be brought against the maker of a false statement.
On 10 November 2021 Sir Andrew McFarlane issued a President’s Memorandum on Witness Statements (available at www.judiciary.uk/wp-content/uploads/2022/07/PFD-memo-on-witness-statements-12112021.pdf). This is derived from the relevant parts of the CPR and represents a useful summary of the rules applicable to witness statements.
It was summarised in the FRC efficiency statement 11 Jan 22.pdf at para 22:
Witness statements may only contain evidence. The statement must not
- quote at any length from any document;
- seek to argue the case;
- take the court through the documents or set out contentions as to the meaning of the documents, those being matters for argument;
- express the opinions of the witness; or
- use rhetoric.
Evidence may be given on matters of past and future fact and matters of information and belief. The statement may contain only those matters of fact of which the witness has personal knowledge and which are relevant to the case.
The statement must indicate the source of any matters of information and belief …
- A person involved in preparing the statement must not, subject to the next sub-paragraph, in any way seek to alter or influence the recollection of the witness.
- The memory of witnesses may be refreshed by showing them a document which they created, or which they saw while the facts stated in the document were still fresh in their mind.
- Parties should understand that the court’s approach to witness evidence based on human memory will be in accordance with CPR PD 57AC, Appendix para 1.3:
…when assessing witness evidence the approach of the court is that human memory:
(1) is not a simple mental record of a witnessed event that is fixed at the time of the experience and fades over time, but
(2) is a fluid and malleable state of perception concerning an individual’s past experiences, and therefore
(3) is vulnerable to being altered by a range of influences, such that the individual may or may not be conscious of the alteration.
- The statement must be as concise as possible without omitting anything of significance.
It is a rule of equity, as well as of law, that a suppressio veri is equivalent to a suggestio falsi. Litigators know that a devastating cross-examination will focus in on a witness statement and seek to show that it is false because it is either
- deliberately false in that it does not tell the truth but rather advances untruths (suggestio falsi), and/or
- misleading because it does not tell the whole truth but omits matters of significance (suppressio veri).
Sometimes witness statements are found to be false because the drafter of the statement has not been able to read all the documents and therefore by reason of lack of knowledge has drafted something that is either in straight conflict with the facts as revealed in the documents, or has missed out facts of crucial significance.
The consequence of a finding of falsity can be very serious. There is the risk that a judge will report the falsity to the Solicitor-General for him to consider the institution of contempt proceedings.
The more normal consequence is that counsel for the other party will suggest that the court find that the maker of the statement is dishonest and that nothing said by him or her should be believed.
AI for fact-checking?
So, where does AI fit into all this? Clearly, one of the benefits of generative AI is its ability to tirelessly examine thousands of documents, where humans are unable or unwilling to do so.
This presents two possibilities:
We can, through analysis of the documents and facts, extract a list of topics that are indispensably necessary to be included in a witness statement.
We can subject witness statements from the opponent to scrutiny to ‘fact-check’ the statements by verifying each claim with supporting evidence, finding either conflicts (where said statement is false), or omissions (where it has missed important details found in the evidence.)
At Wexler, we’re building functionality to test statements, verify claims and check for deliberate falsehoods or omissions. Beyond litigation, there is a range of scenarios where this would be crucial. You only have to switch on the news to see politicians making claims seemingly without evidence. We’re using generative AI to create clarity, rather than confusion, and ensure that our customers are armed with the facts and backed up by the evidence.