Witness Statements and the Abstraction of Justice

In Malaysia, witness statements contain the questions asked by a lawyer to his own witness with the answers given committed to writing. They serve as the evidence that a witness gives during an examination-in-chief (EIC) i.e., when it is his turn to testify. This process removes a significant part of a witness’s evidence from being actually heard by the court because it is read instead. It saves the courts, witnesses, lawyers and everyone involved effort, time and costs.

After all, why bother with the formality of an EIC since the witness knows what he will be asked and what he should answer? Why bother with actually asking the question to the witness when we know the answer he already is expected to give? Let’s not waste the court’s time on this. Let’s reduce this to a question-and-answer witness statement. Or just a statement as they do in England. Let’s take it as read. Tendered as a witness statement already? Okay, cross!

The assumption inherent in this measure of convenience is a witness statement and an examination in chief amount to the same thing, save for the paper. There is no or little significant difference between an answer given by a witness live from the witness box and an answer crafted by the lawyers in a witness statement. This assumption and attitude have driven EIC to near extinction in civil trials and the practice of using them is regrettably creeping into criminal practice.

Whilst I acknowledge the immense convenience of a witness statement, and I have had a great deal of fun drawing up witness statements (not all of them, of course), ultimately, I don’t like witness statements. For several reasons, of course.

First, witness statements are not actually witness statements. We should call them prepared witness statements by lawyers because that is what they are. It’s not that they are fake or wrong about the facts. But it is not the witness’s actual words. It is the carefully crafted words of a lawyer.

In short, when lawyers draft a witness statement, there is a high level of processing to the material. It also often occurs to the point that the expression is inauthentic and the content strategic, which leads to the case being increasingly abstract to the litigants and witnesses.

Having said that, I am mindful also that if lay witnesses are left to their own to prepare their witness statements, it is likely to be emotive, dramatic, blinkered and lacking in structure. It is not their fault. Most witnesses won’t know the law, its requirements, the standard and demands of proof.

So if left to their own, the witness statement will comprise of usually what they know and how they felt about something. They do not know how to think about carrying out the work. Most times is likely to be a jumble of facts, much of it probably legally irrelevant.

So with a witness statement, the court – and everyone else – is forced into a choice of a carefully crafted witness statement by a lawyer or a messy pile of facts by the witness.

That’s assuming the witness had a hand in it at all.

Some witnesses don’t even know what’s in their statement until the day of the trial. It has happened. They trip and fumble over written words foreign to their mouths. Their eyebrows sometimes pop up when they scan ahead and realise what they are about to say. They don’t realize when they misread.

In doing this a witness is not actually giving evidence, he is simply reciting it.

Second, the facts in the witness statement are not proved by oral evidence. They are proved by a document that is acknowledged and affirmed by a witness orally. Sections 59 and 60 of the Evidence Act 1950 (EA50) do not envisage oral evidence being given in any other way except orally. This is consonant with witness statements not being used in legal practice in the 1950s. The Rules of Court 2012 provide for the use of witness statements but it is the EA50 that determines the admissibility of such evidence.

The ubiquitous use of witness statements is a recent development in Malaysia, probably starting around mid-2000’s. I felt it became a trend in courts worldwide because of the immense pressure brought to bear on the court’s limited time and resources everywhere. It was a case of too many cases and not enough court time, judges, and budget. They needed to find ways to save time and the witness statement was a product of that pressure.

Now more or less half of the witness’s evidence is excised from being actually heard.

Third, when I started practice, evidence in chief was given orally by the witness. We didn’t prepare witness statements for trial. Lawyers carried out examinations-in-chief day-in-day-out in courtrooms instead of now being performed several times a year by advocacy trainers at advocacy training courses held by the Bar Council Advocacy Training Committee.

As a result of that, early in my practice, I saw how some witnesses wrecked either their evidence or their case in examination-in-chief. From there I know for a fact witness statements are not the same thing as an examination-in-chief. Far from it. In an examination-in-chief, a witness can fail to remember, be inaccurate, or get it completely wrong. The witness’s recollection and resolve are truly tested in an examination-in-chief.

Not anymore with the use of a witness statement.

Fourth, a witness statement allows a witness to refresh his memory during cross-examination because he has access to what he said during examination-in-chief for him to refer to if he is in a jam. This was not previously available to witnesses when I first started practice. They were pretty much on their own in the witness box. These days the witness statement is in their hand or before them.

I don’t think section 159 EA50 which deals with refreshing memory allows for that. That provision relates to the referral of the documentary evidence itself to refresh one’s memory, not to a witness statement.

Fifth, witness statements remove the court one step further from the reality of the dispute and the reality of the process of dispute. Using witness statements infuses the legal proceedings with a greater level of abstraction and therefore inauthenticity.

With witness statements the lawyer now does not simply prepare the case for trial, he has to create its evidence too. That is what crafting a witness statement means. With the ubiquity of witness statements, the only thing the lawyer does not do is sit in his client’s place to answer for cross-examination and pay his own fee.

Who knows, one day perhaps the court may allow lawyers to give evidence in place of our client? After all, lawyers know the case better than their clients do factually and legally. Lawyers also theoretically should know how to answer the legal and factual issues. Might as well pose them the questions. Speed up court time some more.

With witness statements, the court has less time to get to know the witness. What are their demeanor and character like during examination-in-chief? Is it very different as compared to cross-examination? With witness statements, we have less of a trial and more of an approximation of a trial, a virtual trial.

A court cannot answer these questions if all it sees is the witness under cross-examination and re-examination i.e. in defense or in explanatory mode. It would have a partial and therefore unfair appreciation of the witness. It would not be in a position to consider the fullness of the witness’s character, temperament and attitude because that requires listening to them in examination-in-chief.

That is when they are supposed to be at their best. But that part now remains shrouded because the process is seen as inefficient.

Finally, the use of witness statements, for me, is the triumph of convenience over care, the dominance of speed over soundness, approximation over accuracy, and is simply another step down the path of the legal process becoming more and more abstract both to reality and to the common man.

There is only so much we can do to expedite the due processes of law before we turn it into a thoughtless mimicry of it. Justice is necessarily inconvenient. And justice hurried is justice buried.

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