Massaging the evidence: the ‘over-working’ of witness statements in civil cases

Abstract

This paper considers the process by which witness statements are produced in civil cases. A case study approach is adopted, focussing on an action for defamation that came to trial in Hong Kong. Drawing on a recent judicial report that highlighted the problem of ‘over-working’ in witness statements, the study sets out to ascertain to what extent the phenomenon is the work of lawyers and to what extent it is the work of the witnesses themselves. Fifteen witness statements were analysed to identify areas of textual commonality between the accounts. Striking similarities were found in terms of both formal properties, for example, the layout of the witness statements, and functional properties, for example, verbatim strings across witness statements. Regarding functional properties, it was found that properties that led to apparent divergence, for example, contradictory accounts, were present alongside properties that led to convergence, such as verbatim strings.