In law, a witness is someone who, either voluntarily or under compulsion, provides testimonial evidence, either oral or written, of what they know or claim to know. A witness might be compelled to provide testimony in court, before a grand

jury A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...

, before an administrative

tribunal A tribunal, generally, is any person or institution with authority to judge, adjudicate on, or determine claims or disputes—whether or not it is called a tribunal in its title. For example, an advocate who appears before a court with a singl ...

, before a deposition officer, or in a variety of other legal proceedings. A

subpoena A subpoena (; also subpœna, supenna or subpena) or witness summons is a writ issued by a government agency, most often a court, to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of ...

is a legal document that commands a person to appear at a proceeding. It is used to compel the

testimony Testimony is a solemn attestation as to the truth of a matter. Etymology The words "testimony" and "testify" both derive from the Latin word ''testis'', referring to the notion of a disinterested third-party witness. Law In the law, testimon ...

of a witness in a

trial In law, a trial is a coming together of parties to a dispute, to present information (in the form of evidence) in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court. The tribunal, w ...

. Usually, it can be issued by a

judge A judge is a person who wiktionary:preside, presides over court proceedings, either alone or as a part of a judicial panel. In an adversarial system, the judge hears all the witnesses and any other Evidence (law), evidence presented by the barris ...

or by the

lawyer A lawyer is a person who is qualified to offer advice about the law, draft legal documents, or represent individuals in legal matters. The exact nature of a lawyer's work varies depending on the legal jurisdiction and the legal system, as w ...

representing the

plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the ...

or the

defendant In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case. Terminology varies from one juris ...

in a

civil trial In law, a trial is a coming together of Party (law), parties to a :wikt:dispute, dispute, to present information (in the form of evidence (law), evidence) in a tribunal, a formal setting with the authority to Adjudication, adjudicate claims or di ...

or by the

prosecutor A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

or the defense attorney in a criminal proceeding, or by a

government agency A government agency or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government (bureaucracy) that is responsible for the oversight and administration of specific functions, s ...

. In many

jurisdiction Jurisdiction (from Latin 'law' and 'speech' or 'declaration') is the legal term for the legal authority granted to a legal entity to enact justice. In federations like the United States, the concept of jurisdiction applies at multiple level ...

s, it is compulsory to comply with the subpoena and either take an

oath Traditionally, an oath (from Old English, Anglo-Saxon ', also a plight) is a utterance, statement of fact or a promise taken by a Sacred, sacrality as a sign of Truth, verity. A common legal substitute for those who object to making sacred oaths ...

or solemnly affirm to testify truthfully under penalty of perjury. Although informally a witness includes whoever perceived the event, in law, a witness is different from an informant. A ''confidential informant'' is someone who claimed to have witnessed an event or have hearsay information, but whose identity is being withheld from at least one party (typically the criminal defendant). The information from the confidential informant may have been used by a police officer or other official acting as a hearsay witness to obtain a search warrant.

Types

A percipient witness (or eyewitness) is one with knowledge obtained through their own

sense A sense is a biological system used by an organism for sensation, the process of gathering information about the surroundings through the detection of Stimulus (physiology), stimuli. Although, in some cultures, five human senses were traditio ...

s (e.g.,

visual perception Visual perception is the ability to detect light and use it to form an image of the surrounding Biophysical environment, environment. Photodetection without image formation is classified as ''light sensing''. In most vertebrates, visual percept ...

hearing Hearing, or auditory perception, is the ability to perceive sounds through an organ, such as an ear, by detecting vibrations as periodic changes in the pressure of a surrounding medium. The academic field concerned with hearing is auditory sci ...

, smell, touch). That perception might be either with the unaided human sense or with the aid of an instrument, such as

microscope A microscope () is a laboratory equipment, laboratory instrument used to examine objects that are too small to be seen by the naked eye. Microscopy is the science of investigating small objects and structures using a microscope. Microscopic ...

stethoscope The stethoscope is a medicine, medical device for auscultation, or listening to internal sounds of an animal or human body. It typically has a small disc-shaped resonator that is placed against the skin, with either one or two tubes connected t ...

. A ''

hearsay Hearsay, in a legal forum, is an out-of-court statement which is being offered in court for the truth of what was asserted. In most courts, hearsay evidence is Inadmissible evidence, inadmissible (the "hearsay evidence rule") unless an exception ...

'' witness is one who testifies about what someone else said or wrote. In most court proceedings there are many limitations on when hearsay evidence is admissible. Such limitations do not apply to grand jury investigations, many administrative proceedings, and may not apply to declarations used in support of an arrest or search warrant. Also some types of statements are not deemed to be hearsay and are not subject to such limitations. An ''

expert witness An expert witness, particularly in common law countries such as the United Kingdom, Australia, and the United States, is a person whose opinion by virtue of education, training, certification, skills or experience, is accepted by the judge as ...

'' is one who allegedly has specialized knowledge relevant to the matter of interest, which knowledge purportedly helps to either make sense of other evidence, including other testimony, documentary evidence or physical evidence (e.g., a fingerprint). An expert witness may or may not also be a percipient witness, as in a doctor or may or may not have treated the victim of an accident or crime. A '' character witness'' testifies about the personality of a defendant if it helps to solve the crime in question. A '' crown witness'' is one who incriminates former accomplices in a crime who following receive either a lower sentence, immunity or also a protection of themselves or/and their family by the court. After they have provided the court with their testimony they often enter into a witness protection program. A '' secret witness'' or ''anonymous witness'' is one whose identity is kept secret by the court.

Calling a witness

In a court proceeding, a witness may be ''called'' (requested to testify) by either the

prosecution A prosecutor is a legal representative of the prosecution in states with either the adversarial system, which is adopted in common law, or inquisitorial system, which is adopted in Civil law (legal system), civil law. The prosecution is the ...

or the

defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military), forces primarily intended for warfare * Civil defense, the organizing of civilians to deal with emergencies or enemy attacks * Defense industr ...

. The side that calls the witness first asks questions in what is called

direct examination The direct examination or examination-in-chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the lawyer/side/party that called such witness in a trial. ...

. The opposing side then may ask their own questions in what is called

cross-examination In law, cross-examination is the interrogation of a witness by one's opponent. It is preceded by direct examination (known as examination-in-chief in Law of the Republic of Ireland, Ireland, the Law of the United Kingdom, United Kingdom, Austra ...

. In some cases, redirect examination may be used by the side that called the witness but usually only to contradict specific testimony from the cross-examination. Recalling a witness means calling a witness, who has already given testimony in a proceeding, to give further testimony. A court may give leave to a party to recall a witness only to give evidence about a matter adduced by another party if the second party's testimony contradicts evidence given by the original witness on direct examination.

Testimony

Witnesses are usually permitted to testify only what they experienced first-hand. In most cases, they may not testify about something they were told (

). That restriction does not apply to expert witnesses, but they may testify only in the area of their expertise.

Reliability

Although eyewitness testimony is often assumed to be more reliable than circumstantial evidence, studies have established that individual, separate witness testimony is often flawed. Mistaken eyewitness identification may result from such factors as faulty observation and recollection, or bias, or may involve a witness's knowingly giving false testimony. If several people witness a crime, it is possible to look for commonalities in their testimony, which are more likely to represent events as they occurred, although differences are to be expected and don't of themselves indicate dishonesty. Witness identification will help investigators get an idea of what a criminal suspect looks like, but eyewitness recollection include mistaken or misleading elements. One study involved an experiment, in which subjects acted as

juror A jury is a sworn body of people (jurors) convened to hear evidence, make Question of fact, findings of fact, and render an impartiality, impartial verdict officially submitted to them by a court, or to set a sentence (law), penalty or Judgmen ...

s in a criminal case. Jurors heard a description of a robbery-murder, a prosecution argument, and then an argument for the defense. Some jurors heard only circumstantial evidence; others heard from a clerk who claimed to identify the defendant. In the former case, 18% percent found the defendant guilty, but in the latter case, 72% found the defendant guilty (Loftus 1988). Police lineups in which the eyewitness picks out a suspect from a group of people in the police station are often grossly suggestive, and they give the false impression that the witness remembered the suspect. In another study, students watched a staged crime. An hour later they looked through photos. A week later they were asked to pick the suspect out of lineups. 8% of the people in the lineups were mistakenly identified as criminals. 20% of the innocent people whose photographs were included were mistakenly identified. Weapon focus effects in which the presence of a weapon impairs

memory Memory is the faculty of the mind by which data or information is encoded, stored, and retrieved when needed. It is the retention of information over time for the purpose of influencing future action. If past events could not be remembe ...

for surrounding details is also an issue. Another study looked at 65 cases of "erroneous criminal convictions of innocent people." In 45% of the cases, eyewitness mistakes were responsible.Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice
by Borchard, pg 367 The formal study of eyewitness memory is usually undertaken within the broader category of cognitive processes, the different ways in which we make sense of the world around us. That is done by employing the mental skills at one's disposal like thinking, perception, memory, awareness, reasoning, and judgment. Although cognitive processes can be only inferred and cannot be seen directly, they all have very important practical implications within a legal context. If one were to accept that the way people think, perceive, reason, and judge is not always perfect, it becomes easier to understand why cognitive processes and the factors influencing the processes are studied by psychologists in matters of law, one being the grave implications that this imperfection can have within the criminal justice system. The study of witness memory has dominated the realm of investigation. As Huff and Rattner note, the single most important factor contributing to wrongful conviction is eyewitness misidentification.

Credibility

A credible witness is a person who acts as a witness, including through giving

court A court is an institution, often a government entity, with the authority to adjudicate legal disputes between Party (law), parties and Administration of justice, administer justice in Civil law (common law), civil, Criminal law, criminal, an ...

, whose testimony is perceived as truthful and believable. Other witnesses may be perceived as less credible, or to have no credibility. Assessment of credibility is made of each witness, and is not affected by the number of witnesses who testify. Several factors affect witnesses'

credibility Credibility comprises the objective and subjective components of the believability of a source or message. Credibility is deemed essential in many fields to establish expertise. It plays a crucial role in journalism, teaching, science, medicin ...

. Generally, witnesses are perceived as more credible when they are perceived as more accurate and less suggestible. At

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

, the term could be used in relation to the giving of testimony, or for the witnessing of documents. In modern

English law English law is the common law list of national legal systems, legal system of England and Wales, comprising mainly English criminal law, criminal law and Civil law (common law), civil law, each branch having its own Courts of England and Wales, ...

, a credible witness is one who is ''not'' "speaking from

." In

Scottish law Scots law () is the List of country legal systems, legal system of Scotland. It is a hybrid or mixed legal system containing Civil law (legal system), civil law and common law elements, that traces its roots to a number of different histori ...

, a credible witness is one "whose credibility commends itself to the presiding magistrate ... the trustworthiness" of whom is good.

Witnessing of wills and documents

Credible witnesses must be used to give meaning or existence to certain types of legal documents. For example, in most common law jurisdictions, at least two witnesses must sign their names to a will in order to verify that it was executed by the testator. In

Canadian law The legal system of Canada is pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the French civil law system (inherited from its French Empire past), and Indigenous ...

, a credible witness to a Will means a witness who is not incapacitated by mental deficiency, conflict of interest, or crime.

References

External links

Eyewitness memory

{{Authority control Evidence law Witness (law)