Do Judges Believe Witnesses?

• Published date: 18 October 2022
• Subject Matter: Litigation, Mediation & Arbitration, Trials & Appeals & Compensation
• Law Firm: Weightmans
• Author: Mark Surguy

Finding and presenting evidence is of supreme importance

In a criminal trial it is the jury which decides who is telling the truth and who is not. By contrast, unlike in the United States where criminal and civil cases are both heard by a jury, in Great Britain a civil judge sitting by themselves, performs the function of the jury. The judge considers the oral and documentary evidence of the witness and listens to the arguments made by the barristers for and against the rival cases.

Most cases come to trial very many years after the events, giving rise to the dispute, took place. We all know that memories fade with time. In a busy world it is difficult to remember what happened 24 hours ago never mind many years ago. Once you have spent time with the lawyers discussing the case and being involved in writing a witness statement, it is more difficult to distinguish between what a person recalls, what they would like to recall happened, and what they have learned on the way which masquerades as an accurate recollection but is nothing of the sort. An unreliable witness does not have to be a dishonest witness.

Judges are well-accustomed to confronting these biases of memory. They may not believe the recollection of either side to be really that reliable. Contemporaneous documents made or sent at the time of the events in question are often considered to be a more reliable source of the truth of what actually happened. Lawyers call these events the "facts" of a case. Identifying and collecting this documentary evidence requires a lot of skill. Making sense and using it effectively in any case requires experience. So much is now recorded automatically by computerized devices that the sheer volume of material to assess can be a real challenge. The costs involved can accumulate quickly and the whole exercise can be burdensome in its demands on time. Specialists in digital evidence are necessary, something which then demands strong project management by the legal team to keep the...