WITNESS (from O. Eng. witan, to know), in law, a person who is able from his knowledge or experience to make statements relevant to matters of fact in dispute in a court of justice. The relevancy and probative effect of the statements which he makes belong to the law of evidence (q.v.). In the present article it is only proposed to deal with matters concerning the position of the witness himself. In England, in the earlier stages of the common law, the jurors seem to have been the witnesses, for they were originally chosen for their knowledge or presumed knowledge of the facts in dispute, and they could (and can) be challenged and excluded from the jury if related to the parties or otherwise likely to show bias (see Jury). The Scottish jurors' oath contains the words “and no truth conceal,” an obvious survival from the time when a juror was a witness.
Modern views as to the persons competent to give evidence are very different from those of Roman law and the systems derived Competency. from it. In Roman law the testimony of many persons was not admissible without the application of torture, and a large body of possible witnesses was excluded for reasons which have now ceased to be considered expedient, and witnesses were subject to rules which have long become obsolete. Witnesses must be idonei, or duly qualified. Minors, certain heretics, infamous persons (such as women convicted of adultery), and those interested in the result of the trial were inadmissible. Parents and children could not testify against one another, nor could slaves against their masters, nor those at enmity with the party against whom their evidence was offered. Women and slaves could not act as witnesses to a will. There were also some hard and fast rules as to number. Seven witnesses were necessary for a will, five for a mancipatio or manumission, or to determine the question whether a person were free or a slave. As under Mosaic law, two witnesses were generally necessary as a minimum number to prove any fact. Unius responsio testis omnino non audiatur are the words of a constitution of Constantine. The evidence of a single witness was simply semiplena probatio, to be supplemented, in default of a second witness, by torture or by reference to oath. The canon law followed the Roman law as to competence, but extended the disabilities to excommunicated persons and to a layman in a criminal charge against a clerk, unless he were actually the prosecutor. The evidence of a notary was generally equivalent to that of two ordinary witnesses. The evidence of the pope and that of a witness who simply proved baptism or heresy (according to some authorities) are perhaps the only other cases in which canon law dispensed with confirmatory evidence. It is probable that the incompetence of Jews as witnesses in Spain in the 14th and 15th centuries was based on what is termed “want of religion,” i.e. heresy or unwillingness to take the Christian oath on the gospels. But in England until their expulsion they were in the status of slaves (captivi) of the king. A policy similar to that of Roman law was followed for centuries in England by excluding the testimony of parties or persons interested, of witnesses for a prisoner, and of infamous persons, such as those who had been attainted or had been vanquished in the trial by battle, or had stood in the pillory. All these were said vocem non habere. In the days of trial by battle a party could render a witness against him incompetent by challenging and defeating him in the judicial combat. Women were generally regarded as wholly or partially incompetent. English law had also certain rules as to the number of witnesses necessary. Thus under a statute of 1383 (6 Rich. II. st. 2, c. 5) the number of compurgators necessary to free an accused person from complicity in the peasant revolt was fixed at three or four. Five was the number necessary under the Liber feudorum for proving ingratitude to the lord. In one instance in old Scots law the number of witnesses had the curious effect of determining the punishment. By the assizes of King William, the ordeal of water was undergone by the accused on the oaths of three witnesses; if to them the oaths of three seniores were added, the penalty was immediate hanging.
In the course of the gradual development of the law of evidence, which is in a sense peculiar to the English system, the fetters of the Roman rules as to witnesses were gradually shaken off. In civil cases all disabilities by interest, relationship, sex or crime have been swept away. The witness need not be idoneus in the Roman sense, and objections which in Roman law went to his competence, in English law go to his credibility. The only general test of competency is now understanding. It excludes lunatics, idiots, dotards and children of tender years; a person convicted of perjury is said to be competent if convicted at common law, but incompetent if convicted under the act of Elizabeth. No trial ever takes place now under this act, and on this point the act seems to have been virtually repealed by Lord Denman's Act (1843; 6 & 7 Vict. c. 85). The disqualification is not absolute as to lunatics; as to children it is sometimes made to depend on whether they are able to understand the nature of the witness's oath. And in certain cases within the Criminal Law Amendment Act 1885 and the Prevention of Cruelty to Children Act 1904, the unsworn evidence of children of tender years is admissible but needs corroboration.
Non-judicial witnesses are those who attest an act of unusual importance, for the due execution of which evidence may afterwards be required. They are either made necessary by law, as the witnesses to marriages and wills, or used by general custom, as the witnesses to deeds. In some cases the attestation has become a mere form, such as the attestation of the lord chancellor to a writ of summons (see Writ).
The rule of English law as to the number of witnesses necessary is expressed in the phrase testes ponderantur non numerantur. But there are certain exceptions, all statutory. Two witnesses are necessary to make a will valid; two are required to be present at a marriage and to attest the entry in the marriage register; and in the case of blasphemy, perjury, personation and most forms of treason, two or more witnesses are necessary to justify conviction. Witnesses to bills of sale under the Bills of Sale Act 1882, and witnesses on a charge of personation at elections, are required to be “credible.” And in the case of dishonour of a foreign bill of exchange the evidence of a notary public is required, probably a survival from the law merchant or a concession to continental practice. A warrant of attorney must be attested by a solicitor, and certain conveyances of property held on charitable uses must be attested by two solicitors. In certain civil cases the evidence of a single witness is not sufficient unless corroborated in some material particular—not necessarily by another witness—e.g. in actions of breach of promise of marriage, or affiliation proceedings and matrimonial causes, or where unsworn evidence of children is admissible. In practice, but not in strict law, the evidence of an accomplice is required to be corroborated.
The English common law in theory has never permitted examination by torture—unless certain forms of cross-examination can be so described. In trials in the court of admiralty the Roman system was used until 1536 (28 Henry VIII. c. 15). Torture in Scotland was abolished at the Union.
In criminal cases an accused person could not formerly be sworn as a witness or examined by the court, though he was free to make statements. The origin of this rule is by some traced to the maxim nemo tenetur prodere seipsum, by others to the theory that the petty jury were the prisoner's witnesses. Moreover, witnesses for the defence could not be examined on oath in cases of treason and felony until 1702 in England, 1711 in Ireland and 1735 in Scotland. The husband or wife of the accused could not be examined on oath as a witness either for the prosecution or the defence except in prosecutions for treason or for personal injuries done by one spouse to the other. This exclusion was in accord with the disqualification of parties to civil causes; but there was a lack of reciprocity, for the prosecutor was a competent witness because the crown is the nominal prosecutor. The rule had to a certain extent a beneficial effect for the defence, in saving the accused from cross-examination, which in certain periods and in political trials would have led to abuse. On the abolition of other disqualifications that of the accused was left. This inconsistency led to much legal discussion and to piecemeal, and ultimately complete, change in the law. In 1878 the Criminal Code Commission recommended that prisoners should be allowed to give evidence on their own behalf on oath. Since 1872 many statutes have been passed rendering accused persons and their husbands or wives competent witnesses on charges of particular offences. Most of these acts do not make them compellable witnesses.
By the Criminal Evidence Act l898 (60 and 61 Vict. c. 36) the defendant, or the wife or husband of the defendant, is made a competent but not a compellable witness for the defence at every stage of criminal proceedings, subject to certain conditions, of which the principal are that a prisoner shall not be called except on his or her own application, and that the failure of the prisoner or his wife or her husband to give evidence is not to be the subject of comment by the prosecution, and that the prisoner may not be cross-examined as to any previous offence or conviction or as to character, unless the proof of a previous offence is admissible evidence in the case, or unless he or she has given evidence of his or her good character, or cross-examined with that view, or unless the nature and conduct of the defence is such as to involve imputations on the character of the prosecutor or the witnesses for the prosecution. The act applies to Great Britain but not to Ireland. It has been extended to proceedings before naval and military courts-martial. This statute abrogates the common law rule making an accused person incompetent, and in practice supersedes most of the prior particular statutes. But it is necessary to observe that as to certain offences named in the schedule of the act and in other earlier or later acts, the husband or wife is competent without the consent of the accused; and that proceedings by indictment for obstruction or non-repair of public ways, bridges and rivers are for purposes of evidence treated as civil proceedings.
Quite apart from statute a husband or wife has always and necessarily been a competent witness in criminal proceedings against the other spouse in respect of personal injuries.
Even where a witness is competent, his statements, whether of fact or of expert opinion, are not admissible in evidence unless he has taken the required oath, or, where he conscientiously objects to taking an oath or by want of religion would not be bound by the oath, has made the substituted affirmation or declaration. This question was settled in 1888 after the entry of Mr Bradlaugh into parliament. Unless he is duly sworn, &c., there is no enforceable sanction for false evidence (see Perjury). English law has gradually accepted as sufficient any form of oath which the witness is prepared to accept as binding on him in accordance with his religious beliefs, whether he be Christian or Jew, Mahommedan, Hindu, Sikh or Buddhist. At one time peers in certain proceedings testified on their honour unsworn, but now no distinction is made except as already stated in the case of young children.
The attestation of documents out of courts of justice is ordinarily not on oath; but where the documents have to be proved in court the attesting witnesses are sworn like others, and the only judicial exception is that of witnesses ordered to produce documents (called in Scotland “havers”) who are not sworn unless they have to verify the documents produced. Questions as to competence (including questions of the right to affirm instead of swearing or as to the proper form of oath) are settled by examination by the court without oath, on what is termed the voir dire. The evidence of judicial witnesses is taken viva voce at the trial, except in interlocutory proceedings and in certain matters in the chancery division and in bankruptcy courts. Where the witness cannot attend the court or is abroad his evidence may be taken in writing by a commissioner delegated by the court, or by a foreign tribunal under letters of request issued by the court in which the cause is pending. The depositions are returned by the delegated authority to the court of trial. Under English law evidence must be taken viva voce in a criminal trial, with a few exceptions, e.g. where a witness who has made a deposition before a magistrate at an earlier stage in the case is dead or unable to travel, or in certain cases within the Merchant Shipping Acts, or of offences in India or by crown officials out of England. In Europe commissions vogatoires are freely used to obtain written depositions for the purpose of criminal trials, and are allowed to be executed in England. In England the viva voce examination of witnesses is not conducted by the presiding judge but by the advocates in the cause, and the witness is called not by the court but by the party. The court, however, has full power to call witnesses not called by either party, or to examine witnesses on questions not inquired into by the advocates of either party.
The examination of a witness by the advocate of the side for which he is called is termed “examination-in-chief”; when by the advocate of the other party it is called “cross-examination." The judge, and by his leave the jurors, are free to question the witness. But the main duty of the judge is not himself to interrogate, the witness but to see that neither side asks irrelevant or vexatious questions (see R.S.C. 1883, order 36, rule 38).
As a general rule competent witnesses are also compellable, except the king; i.e. they can be required to attend the court and to take Attendance. the oath and to answer all relevant questions. But by the statutes as to evidence in criminal cases the accused is not a compellable witness, nor in many specified cases is the husband or wife of the accused. The attendance of witnesses is secured in the following manner: In civil actions in the High Court of Justice by writ of subpoena personally served with tender of the necessary journey money (see Writ); in civil actions in county courts by witness summons; in criminal proceedings before the High Court of Justice or a court of assize or quarter sessions by crown office subpoena or by recognizance entered into before justices when the accused was committed for trial. In proceedings before justices out of quarter sessions the attendance of a witness is secured by witness summons or if need be by arrest on warrant of a justice. In criminal cases tender of expenses is not essential. Where a witness refuses to attend or to be sworn or to answer, he is summarily punishable for contempt if the court is one of record, and liable to imprisonment if the proceedings are before a court of summary jurisdiction. Various acts of parliament deal with compelling appearance before committees of parliament, courts martial and other tribunals of a special nature. The attendance of a witness who is in custody is obtained by writ of habeas corpus ad testificandum or by judge's order in certain cases, or by order of the home secretary under the Prison Act 1898. A witness's expenses in a civil case are payable by the party calling him and are included in the costs of the cause. Scales of allowances are scheduled to the Rules of the Supreme Court and the County Court Rules. Failure of a witness duly summoned to attend in a civil action exposes him to liability in respect of pecuniary damage done to the party by his absence. In criminal cases the witness's expenses fall on the party calling him, but in prosecutions for felony and many misdemeanours the expenses are paid out of the local rate in accordance with scales fixed by the home secretary (see Costs).
A witness is privileged from arrest on civil process while he is in attendance on a court of justice or is on his way to or from the court (eundo, morando et redeundo). The privilege does not exempt from arrest on a criminal charge. All witnesses except the defendant in a criminal case are entitled to object to answer any question put to them in court on the ground that the answer might tend to criminate them or to expose them to a penalty or forfeiture, or where the question is as to the fact of adultery. The defendant in a criminal case if sworn as a witness is not entitled to refuse to answer questions tending to prove him guilty of the offence for which he is being tried, and a witness cannot refuse to answer a question on the ground that the answer might involve admission of a debt or subject him to a civil action (1806, c. 37).
Witnesses are also privileged from making disclosure of matters known to them in the following cases: (1) Public officers, as to matters coming within their official cognizance if they can swear that it is inconsistent with the public service to disclose them. This applies to state secrets, and extends to jurors as to what passed among them, and the public prosecutor; and the police on this ground refuse to disclose the sources of information leading to prosecutions for crime. (2) Lawyers, as to communications between themselves and their clients, unless the communications are in themselves part of a criminal or unlawful enterprise. English law declines to extend professional privilege to communications between doctor and patient or priest and penitent. In most European countries, and in many British colonies, medical privilege is recognized as to matters communicated to the doctor or even discovered by him in attending the patient. In Catholic countries confessions to a priest are sacred. In England it is not now the practice to insist on evidence by a minister of religion as to matters confessed to him as such. (3) Communications between husband and wife during the marriage have always been privileged from disclosure, and this privilege is preserved by modern legislation (1853, c. 83, s. 3; 1898, c. 36, s. 1. d.).
It is correlative to the obligation of a witness to testify that no action may be brought against him under English law for any statement however defamatory, however irrelevant, and however malicious, made by him in the course of his testimony in judicial proceedings (Seaman v. Netherclift, 1876, 1 C.P.D. 540; Hodson v. Pare, 1899, 1 Q.B. 455). The only remedy, if the statement is deliberately false, is to prosecute him for perjury.
On charges of treason lists of the witnesses to be called by the crown must be supplied to the accused. In ordinary indictable cases there is no such obligation, but the names of the witnesses for the crown are written on the back of the indictment; and where the witnesses have not been examined at the preliminary inquiry it is now established practice to require notice to the accused of their names, and a précis of what they will be called to prove. In Scotland in all indictable cases a list of witnesses must be served on the accused (the panel) (1887, c. 35), and the same rule is observed in France. In the United States the same course is adopted where a capital offence is charged.
Scotland.—The rules as to competence of witnesses have been made substantially the same as in England by modern legislation (1837, c. 37, s. 9; 1840, c. 59, s. 1; 1852, c. 27; 1874, c. 64). Their attendance is procured by citation. Witnesses to produce documents are called “havers.”
The evidence of witnesses is taken on oath (in the Scots form) or affirmation. Their privileges are substantially the same as in England, but they may be sued for irrelevant defamatory statements volunteered during their evidence, the law of Scotland on this point being the same as under the Dutch Roman law (see Nathan, Common Law of S. Africa, § 1593).
British Possessions.—In India the law as to witnesses and evidence is consolidated in the Indian Evidence Act 1872, which contains in code form the substance of the English law on the subject. The test of competency is understanding: “all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions by tender years, extreme old age, disease whether of body or mind, or of any other cause of the same kind. A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them” (s. 118). In, criminal proceedings the defendant is not, but the husband or wife of the defendant is, competent (s. 120). Under the Indian Oaths Act (x. of 1873) Hindus or Mahommedans or persons objecting to make an oath may affirm (s. 6). The court may accept an oath or solemn affirmation in any form common amongst or held as binding by persons of the persuasion or religion to which the witness belongs, unless it is repugnant to justice or decency (s. 8). In the rest of the British empire the law as to witnesses does not differ materially from that of England, but has in most colonies been incorporated in statutes or codes (e.g. British Guiana, Ord. No. 20 of 1893). Colonial legislation has provided for the evidence of accused persons under conditions similar to but not identical with those prevailing in England. In colonies with a large native population there is from time to time a tendency to reject the evidence of coloured witnesses against Europeans.
United States.—The rules of the United States as to witnesses have a common origin with those of England and are on the same lines, but in most states depend on the particular provisions of state codes. The number of witnesses necessary for the attestation of a marriage or will is not uniform in all the states. While slavery was lawful, the evidence of slaves (and in some states that of free persons of colour) was not received for or against whites. These rules appear not to have been absolutely overridden by the 14th amendment to the Federal Constitution, and the laws of Delaware and Nebraska discriminate against free persons of colour. Incompetency by conviction of perjury or subornation is retained in federal laws (Rev. Stat. § 5392) and in those of a few states (see Wigmore, p. 654 n).
European Countries.—In the law of most European states the Roman law as to the competency and examination of witnesses is more closely followed than in countries whose law is based on that of England. In criminal cases the prisoner is not only competent but necessary, and the whole system of procedure is inquisitorial, beginning with interrogation of the accused, not by the state prosecutor, but by the president of the court. In view of this system it is not surprising that the English conception of the rules of proof and relevancy, known as the law of evidence, is not accepted; since under the continental system the person who puts the questions is the person who has to determine their relevancy. In France consanguinity and affinity to the parties disqualify a witness in civil cases, and he is also asked whether he is employé or servant of the parties (Code Civil, Proc. 262, 268). In criminal cases a like inquiry is made. Consanguinity and affinity in the case of lineals may be made ground of disqualification if the objection is taken, as may pecuniary interest in the penalty (Code d'instr. Crim. 75, 322). Husband and wife cannot testify for or against each other even after divorce (ib.). In France disability to be a witness may be inflicted as part of the punishment on conviction for certain crimes (Code Penal, art. 42). (W. F. C.)
- The provisions of the Marriage Act 1823 appear to be directory. Non-compliance does not invalidate the marriage, but creates difficulty as to its proof in other proceedings, e.g. for bigamy.
- The giving of evidence unsworn appears to have been at one time regarded as a privilege. The men of Ripon, for instance, were by a charter of Æthelstan to be believed on their yea and nay in all disputes.
- In ecclesiastical courts the punishment was by excommunication.