The Witness Who Remembers Differently
In a civil trial, a barrister has three witnesses. Witness A gave a statement 18 months ago saying the car was 'dark blue'. In the witness box she now says it was 'green'. Witness B's statement says he saw the defendant run a red light, but under questioning he admits he was 40 metres away, it was dusk, and he was not wearing his glasses. Witness C is a mechanic whose statement says the brakes were 'fine', but he later told the barrister in conference that he only checked the pads, not the fluid. The barrister must decide how to examine each witness and whether to call C at all. The other side has all three statements.
1. Analyse the risks each witness presents and recommend an approach for each.
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Witness A presents a prior inconsistent statement. The other side has the statement and will use it. The barrister should not pretend the inconsistency does not exist; the better course is to address it in chief, giving the witness a chance to explain (for example, poor light, later reflection, confusion with another vehicle). This is sometimes called 'inoculation'. If the explanation is implausible, the barrister must not vouch for the witness and should consider whether her evidence is still worth advancing.
Witness B has an observation-quality problem: 40 metres, dusk, no glasses. Those facts go to reliability, not honesty. The barrister should elicit the conditions candidly in chief and avoid over-claiming. Leading the witness into an overstated identification would be improper. The realistic value of B is corroborative, not decisive.
Witness C is the most serious problem. His statement says the brakes were 'fine', but he has since revealed that he checked only the pads. Calling him on the statement as written would risk misleading the court. The barrister should clarify the scope of his inspection, correct the statement if necessary, and consider whether his evidence adds anything. If the correction destroys his value, the barrister may properly decide not to call him, but must not conceal the statement if disclosure obligations require it.
2. A colleague suggests the barrister simply not call C, since his statement helps the case and his oral evidence would not. Evaluate that suggestion.
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The suggestion is ethically dangerous. A barrister may decide not to call a witness, but may not use that decision to leave the court with a misleading impression created by a document the other side may not have focused on.
Three points matter. First, the statement is already disclosed to the other side, so the risk of concealment is limited, but the barrister still cannot rely on the statement's content while suppressing the qualification. Second, the duty to the court requires correcting any misleading impression the barrister has caused. If the statement has been tendered or its contents put in issue, silence about the limited inspection could mislead. Third, the witness's own account must be respected; a barrister should not 'park' a witness whose evidence has changed simply because the change is inconvenient.
The proper course is to reassess C's evidence, clarify what he actually inspected, and either call him with the qualification or explain to the court why he is not being called if that becomes necessary. Choosing not to call him is permissible only if it does not create a misleading impression. The colleague's suggestion confuses tactical advantage with ethical obligation.