The Witness Who Wants to 'Adjust' His Statement
You are assisting counsel in a criminal matter. Two days before trial, the defence witness, Mr. Mwangi, comes to the office. He says that what he told the police in his statement is 'not exactly what happened' and asks to change two paragraphs so that they support the accused's alibi. He says the police 'twisted his words' and that he is willing to sign a new statement. You have his original signed statement and the police statement in the file. Counsel is in court and cannot be reached until the evening. Mr. Mwangi is insistent and says he will not attend trial unless the statement is changed.
1. How should you handle Mr. Mwangi's request?
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Do not alter or draft a replacement statement for him to sign.
- Listen and record what he says in a contemporaneous note, in his own words, without editing.
- Explain that you cannot change his earlier statement and that any new account must be his own, given freely, and that he may be cross-examined on the difference.
- Warn him, neutrally, that giving evidence he knows to be false is a serious matter and that inconsistencies between his statements will be explored in court.
- Preserve the original statement - do not destroy or amend it.
- Escalate to counsel as soon as possible.
Reasoning: Assisting a witness to tailor evidence risks perverting the course of justice and breaches the duty not to mislead the court. The paralegal's role is to record and report, not to shape testimony.
2. Mr. Mwangi refuses to attend unless the statement is changed. What are the options and their risks?
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Options:
| Option | Risk |
|---|---|
| Let him not attend | Defence loses a witness; counsel must be told so the trial strategy can be reviewed |
| Subpoena him | Compels attendance but a hostile or unreliable witness may damage the defence |
| Take a fresh, unedited statement of his own account | Legitimate if it is genuinely his account and inconsistencies are disclosed; risk if it appears engineered |
| Change the existing statement | Never - this is fabrication and exposes you and the firm to criminal and professional liability |
Recommended course: Report to counsel, take a faithful note of his current account if he wishes to give one, and let counsel decide whether to apply for the witness to be treated appropriately. The decision is counsel's, not yours. The line you must never cross is altering evidence.