YOUR WITNESSES ARE LINED UP ALL IN A ROW: THEN YOU MAY BE IN TROUBLE

Many cases have many witnesses saying, essentially, the same thing. Inconsistencies between witnesses are (often subconsciously) ironed out by lawyers during the statement stage. However consistency is not always a good thing.

WHEN WITNESSES AGREE 100%: THEY’RE PROBABLY WRONG

This is the title of an article by Joshua A. Krisch on vocativ. The opening paragraph says it all

“Let’s face it—there’s something inherently fishy about a panel of witnesses who each recall the exact same series of events. Humans are imperfect; we see things differently, forget minor details and recount stories in odd orders. So, when witnesses’ accounts don’t differ by a healthy margin, it’s actually a sign something might be wrong.”

The article draws upon an article by the Royal Society: Too good to be true: when overwhelming evidence fails to convince.  This is a sophisticated mathematical analysis. However, as Joshua Krisch, summarises “the probability of perfect agreement between witnesses is almost zero”.

So the more witnesses that positively identify a culprit, the less likely they are to be correct (the optimum number is three).

THE RELEVANCE TO CIVIL LITIGATION

I have written before about the dangers of the way questions are put to a witness having a major impact on the way that a statement is produced.

If, having seen one witness, the second witness is asked “Your friend Sophie says she saw this, is she right and do you agree with her?”  There are plenty of examples of people agreeing with each other on this blog. Look at the witnesses in In Macleod -v- the Commission of Police for the Metropolis [2015] EWCA Civ 688.  Various witnesses for the defendant gave evidence as to the way in which an accident happened.   Several, it transpired, had not even seen the accident but were “told what had happened” and assumed it was right. Jackson L.J. noted:-

  • “I was wholly unimpressed by these forays into the written evidence and the transcripts of cross-examination. There is always a need with accident witnesses to be careful to distinguish evidence of what they actually saw from evidence about they think might have happened. The judge was plainly alert to this danger when evaluating the evidence of the various witnesses.
  • Thus, although Ms Walton had certainly recorded an impression that the man was thrown from east to west, she also said that she did not see enough of the accident to be able to say where the man had come from. Her final sentence was “All I can say for sure is that the police car was travelling from south to north and the man travelled from west to east in the air, I think“. This is hardly a promising basis for a submission that the judge ought to have accepted this account.In any event I do not see how the claimant can have been thrown any appreciable distance west to east when he ended up due north in the left hand lane of Southgate Road. To make matters worse, during cross-examination, Ms Walton volunteered that she had been “sort of told what had happened and … I sort of assumed that was right“.
  • Similarly Ms Hutchings explained in cross-examination that what she had said about the cyclist coming from Northchurch Road was an assumption. She explained that she did not think she had seen the cyclist at all.
  • Ms Knight’s account also had inconsistent features, not least her account of the impact occurring at right angles, which was inconsistent with the physical evidence. She also places the resting place of the bicycle in Northchurch Road. In cross-examination she accepted that the branches of the tree were substantial, even though not in leaf at that time of year, and had blocked her view so that she could not get a proper picture of what happened. As to what she saw at the point of collision she accepted that it was “all a bit of a blur” and she might be mistaken. Later in her evidence when, being cross-examined by Mr Waters, she started to refer to the bicycle being at “an angle” to the car. It is fair to say that Mr Waters managed to get Ms Knight to accept that the angle was such that it was impossible for the cyclist not to be coming down Northchurch Road. I would, for myself, have regarded that as opinion evidence that Ms Knight was unqualified to give. The judge was perfectly entitled to accord it no weight.”

EXAMPLES OF WITNESSES AGREEING “TOO MUCH”

Mr Justice Turner’s judgment in Laporte & Christian -v- Commissioner of Police for the Metropolis [2014] EWHC 3574 (QB) dealt with the evidence of police officers and found that they had been distorted by conversations with each other.

  1. I am satisfied that, after the event, efforts were made to ensure that the TSG officers produced in their notes of the incident a consistently gloomy picture of the situation which they had earlier faced at the Civic Centre. It is not disputed that it is entirely appropriate for officers, in general, to confer in making their notes in order to preserve, at the very least, a coherent chronology of events. Nevertheless, each officer must record his or her own individual recollection rather than follow a “party line”. There are respects in which I have concluded that officers allowed their individual accounts to be contaminated either by information received from Inspector Wakeford or others thereby distorting their own recollections.

 

“CORROBORATIVE EVIDENCE”

In Wake -v- Johnson [2015] EWHC 276(QB) HH Judge Collender QC (Sitting as Judge of the High Court) heard evidence from members of the claimant’s family who gave “supportive evidence”. The similarities were so marked that the defendant’s counsel actually drew up a graph to show the same phrases being used.

“Various families members and friends gave supportive evidence
  1. However, there is considerable similarity between the terms of much of the evidence of Ethan’s parents and the supporting family and friends.
  2. Mr McCullough QC has prepared a comparison in tabular form that sets out these similarities and I reproduce that in this judgment.
David Hood
recall of what he overheard MsHastie telling the out of hours service
Ms Hastie recall of what she told Greta Jones
Greta Jones recall of symptoms relayed by Ms Hastie
Karen Jones recall of what Greta Jones told her Ms Hastie had said
1
“lethargy”
“being listless”
Listless
2
“high temperature”
“high temperature”
“high temperature”
“high temperature”
3
“history of severe headaches”
“severe headache for two days”
“intense headache for two days”
“intense headache for two days”
4
“crying and screaming”
“crying and screaming”
“crying and screaming”
“crying and screaming”
5
“being off his food”
“being off his food”
“and the last solid food he had had was on the morning of 31st December when he had a small amount of Weetabix”
“not eating”
“not eating”
6
“unable to drink very much”
“unable to drink”
“not … drinking”
“not … drinking”
7
“vomiting bile”
“vomiting Calpol and bile”
“vomiting bile”
“vomiting bile”
8
“pale”
“pale looking”
“pale looking”
“pale looking”
9
“not being himself”
“not being himself”
“not being himself”
“not being himself”
  1. A difficulty with much of the corroborative evidence is that the substance of those similarities relate to symptoms not recorded (e.g. bile) or not recorded in the same terms (eating) in the contemporaneous medical records. Mrs Brooks mentioned bile for the first time in her oral evidence. She had been the only one of the seven witnesses not to mention bile in their witness statements. There is no mention in any contemporaneous record of Ethan vomiting bile nor was it mentioned by Mr Wake in his original or reiterated letters of complaints, to which reference has already been made.”

IDENTICAL WITNESS STATEMENTS ARE JUST SUSPICIOUS

In AA -v- London Borough of Southwark [2014] EWHC 500 QB the deputy judge considered three statements given in the course of the litigation. Unanimity in the witness statements did not help.

. “Three short and anodyne statements were produced in very similar terms that gave very similar but inaccurate accounts of the eviction. They even look as if they were produced on the same computer and printer and were drafted in unison. One of these statements is dated 31 May 2013.Thus, the agreed intention of all three officers appears to have been to co-ordinate an attempted cover-up of what happened when they each gave evidence to the Matthews investigation.”

SO BE CAREFUL WHAT YOU ASK AND WHAT YOU DO: TAKING WITNESS STATEMENTS THE MOST UNDERESTIMATED SKILL OF ALL

The questioning of witnesses and drafting of statements is a highly skilled task. It is given very little (if any) consideration during the whole process of legal education and training. Statements are often (probably usually) taken by people who have not read the rules, or Practice Directions, and never seen a witness give evidence in court.  It is perhaps unsurprising that so many parties come to grief.

RELATED POSTS

On taking witness statements

On witness credibility generally

 

One comment

  1. Reblogged this on | truthaholics and commented:
    “The questioning of witnesses and drafting of statements is a highly skilled task. It is given very little (if any) consideration during the whole process of legal education and training. Statements are often (probably usually) taken by people who have not read the rules, or Practice Directions, and never seen a witness give evidence in court. It is perhaps unsurprising that so many parties come to grief.”

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