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In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. 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
percipient
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 world and responding to Stimulus (physiology), stimuli. (For example, in the human body, the brain receives signals from the senses ...

sense
s (e.g.,
visual perception Visual perception is the ability to interpret the surrounding environment (biophysical), environment through photopic vision (daytime vision), color vision, scotopic vision (night vision), and mesopic vision (twilight vision), using light in ...
,
hearing Schematic diagram of the human ear Hearing, or auditory perception, is the ability to perceive Sound, sounds through an organ, such as an ear, by detecting Vibration, vibrations as periodic changes in the pressure of a surrounding medium. Th ...

hearing
, smell, touch). That perception might be either with the unaided human sense or with the aid of an instrument, such as
microscope A microscope (from grc, μικρός ''mikrós'' 'small' and ''skopeîn'' 'to look (at); examine, inspect') is a used to examine objects that are too small to be seen by the . is the of investigating small objects and structures using a ...

microscope
or
stethoscope The stethoscope is an acoustic medical Medicine is the science and Praxis (process) , practice of caring for a patient, managing the diagnosis, prognosis, Preventive medicine, prevention, therapy, treatment, Palliative care , palliation o ...

stethoscope
. A ''
hearsay Hearsay evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epi ...
'' 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 In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written ...
'' 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 Character evidence is a term used in the law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by it ...
'' testifies about the personality of a defendant if it helps to solve the crime in question. A ''
crown witness A criminal turns state's evidence by admitting guilt and testifying as a witness In law, a witness is someone who has knowledge about a matter, whether they have sensed it or are testifying on another witnesses' behalf. In law a witness is som ...
'' 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 A secret witness (or anonymous witness) is a witness which is granted anonymity in a trial by the juridical authority. The identity of the witness is not disclosed to the defendant and the general public except the secret witness agrees to it. It is ...
'' or ''anonymous witness'' is one whose identity is kept secret by the court. In law a witness might be compelled to provide testimony in court, before a grand jury, before an administrative tribunal, 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 In law and in religion, 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 source, thir ...
of a witness in a
trial In law Law is a system A system is a group of Interaction, interacting or interrelated elements that act according to a set of rules to form a unified whole. A system, surrounded and influenced by its environment, is described by ...
. Usually, it can be issued by a
judge A judge is a person who presides over court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a State (polity), state. In th ...

judge
or by the
lawyer A lawyer or attorney is a person who practices law, as an advocate An advocate is a professional in the field of law. Different countries' legal systems use the term with somewhat differing meanings. The broad equivalent in many English ...

lawyer
representing the
plaintiff A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit A lawsuit is a proceeding by a party or parties against another in the civil Civil may refer to: *Civic virtue, or civility *Civil action, or lawsuit *Civil aff ...
or the
defendant In court proceedings, a defendant is a person A person (plural people or persons) is a being that has certain capacities or attributes such as reason Reason is the capacity of consciously applying logic Logic is an interdisciplinary fi ...
in a
civil trial Civil may refer to: *Civic virtue Civic virtue is the harvesting of habit (psychology), habits important for the success of a society. Closely linked to the concept of citizenship, civic virtue is often conceived as the dedication of citizens ...
or by the
prosecutor A prosecutor is a legal representative of the prosecution in states with either the common law In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tr ...
or the
defense attorney A criminal defense lawyer is a lawyer (mostly barristers) specializing in the defense of individuals and companies charged with criminal activity. Some criminal defense lawyers are privately retained, while others are employed by the various ...
in a criminal proceeding, or by a
government agency A government or state agency, sometimes an appointed commission, is a permanent or semi-permanent organization in the machinery of government The machinery of government (sometimes abbreviated as MoG) is the interconnected structures and proce ...
. In many
jurisdiction Jurisdiction (from Latin Latin (, or , ) is a classical language A classical language is a language A language is a structured system of communication Communication (from Latin ''communicare'', meaning "to share" or "to be i ...
s, it is compulsory to comply with the subpoena and either take an
oath Traditionally an oath (from Anglo-Saxon The Anglo-Saxons were a cultural group Culture () is an umbrella term which encompasses the social behavior Social behavior is behavior Behavior (American English) or behaviour (British E ...

oath
or solemnly affirm to testify truthfully under penalty of
perjury Perjury is the intentional act of swearing a false oath Traditionally an oath (from Anglo-Saxon The Anglo-Saxons were a cultural group Culture () is an umbrella term which encompasses the social behavior Social behavior is beha ...
. 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.


Court procedure


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 common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by co ...
or the
defense Defense or defence may refer to: Tactical, martial, and political acts or groups * Defense (military) A military, also known collectively as armed forces, is a heavily armed, highly organized force primarily intended for warfare. It is ...
. 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 party who called him or her, in a trial (law), trial. D ...
. 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 called by one's opponent. It is preceded by direct examination (in Republic of Ireland, Ireland, the United Kingdom, Australia, Canada, South Africa, India and Pakistan known as examin ...
. In some cases,
redirect examination Redirect examination, in the United States, is the questioning of a witness who has already provided testimony under oath in response to direct examination The direct examination or examination-in-chief is one stage in the process of adducing ...
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 (
hearsay Hearsay evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epi ...
). That restriction does not apply to expert witnesses, but they may testify only in the area of their expertise.


Reliability

Eyewitness testimony is generally presumed to be more reliable than
circumstantial evidence Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need f ...

circumstantial evidence
. Studies have shown, however, that individual, separate witness testimony is often flawed, and parts of it can be meaningless. That can occur because of flaws in
eyewitness identification In eyewitness identification, in criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property Property (''latin: Res Privata'') in ...
(such as faulty observation and recollection, or bias) or because a witness is lying. If several people witness a crime, it is
probative Relevance, in the common law of evidence (law), evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. P ...
to look for similarities in their collective descriptions to substantiate the facts of an event but to keep in mind the contrasts between individual descriptions. Witness identification can always help detectives get a general idea of what the criminal looks like, but they should never revolve the case around that because it can be very misleading The psychology of eyewitness identification can really convince someone that they were being attacked by one person, but in reality, DNA evidence shows it’s a completely different person. One study involved an experiment, in which subjects acted as
juror A jury is a sworn body of people (the jurors) convened to render an impartiality, impartial verdict (a Question of fact, finding of fact on a question) officially submitted to them by a court, or to set a sentence (law), penalty or Judgment (la ...
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 Circumstantial evidence is evidence that relies on an inference to connect it to a conclusion of fact—such as a fingerprint at the scene of a crime. By contrast, direct evidence supports the truth of an assertion directly—i.e., without need f ...

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 lineup A police lineup (in American English) or identity parade (in British English) is a process by which a crime victim or witness's putative identification of a suspect is confirmed to a level that can count as evidence (law), evidence at trial. T ...
s 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 (University of Nebraska 1977).
Weapon focus Weapon focus is the concentration on a weapon by a witness of a crime and the subsequent inability to accurately remember other details of the crime. Weapon focus is a factor that heavily affects the reliability of Eyewitness Identification, eye ...
effects in which the presence of a weapon impairs
memory Memory is the faculty of the brain A brain is an organ Organ may refer to: Biology * Organ (anatomy) An organ is a group of Tissue (biology), tissues with similar functions. Plant life and animal life rely on many organs that co-exis ...

memory
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 Cognition () refers to "the mental action or process of acquiring knowledge and understanding through thought, experience, and the senses". It encompasses many aspects of intellectual function Intellectual functioning refers to the "general ment ...
, 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
testimony In law and in religion, 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 source, thir ...
in
court A court is any person or institution, often as a government A government is the system or group of people governing an organized community, generally a state State may refer to: Arts, entertainment, and media Literature * ''Sta ...

court
, 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 Objective may refer to: * Objective (optics), an element in a camera or microscope * ''The Objective'', a 2008 science fiction horror film * Objective pronoun, a personal pronoun that is used as a grammatica ...
. Generally, witnesses are perceived as more credible when they are perceived as more accurate and less suggestible. At
common law In law, common law (also known as judicial precedent or judge-made law, or case law Case law is the collection of past legal decisions written by courts and similar tribunal A tribunal, generally, is any person or institution with authority ...
, 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 In law, common law (also known as judicial precedent or judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions. ''Blac ...
, a credible witness is one who is ''not'' "speaking from
hearsay Hearsay evidence Evidence for a proposition is what supports this proposition. It is usually understood as an indication that the supported proposition is true. What role evidence plays and how it is conceived varies from field to field. In epi ...
." In
Scottish law Scots law () is the legal system The contemporary national legal systems are generally based on one of four basic systems: civil law, common law, statutory law, religious law or combinations of these. However, the legal system of each co ...
, 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 Legal pluralism, pluralist: its foundations lie in the English common law system (inherited from its period as a colony of the British Empire), the Napoleonic Code, French civil law system (inherited from its New Fra ...
, a credible witness to a Will means a witness who is not incapacitated by mental deficiency, conflict of interest, or crime.


See also

* Courthouse facility dog or courthouse dog * Eyewitness (disambiguation) *
Eyewitness identification In eyewitness identification, in criminal law Criminal law is the body of law that relates to crime. It proscribes conduct perceived as threatening, harmful, or otherwise endangering to the property Property (''latin: Res Privata'') in ...
*
Eyewitness memory Eyewitness memory is a person's episodic memories, episodic memory for a crime or other dramatic event that he or she has witnessed. Eyewitness testimony is often relied upon in the judiciary, judicial system. It can also refer to an individual's me ...
*
Informant Two page totally confidential, direct and immediate letter from the Iranian Minister of Finance to the Minister of Foreign Affairs ( Hossein Fatemi) about creating a foreign information network for controlling smuggling, 15 December 1952 An infor ...
*
Martyr A martyr (, ''mártys'', "witness", or , ''marturia'', stem Stem or STEM may refer to: Biology * Plant stem, the aboveground structures that have vascular tissue and that support leaves and flowers ** Stipe (botany), a stalk that supports some ...

Martyr
(the word originally meant ''witness'') *
Material witness A material witness (in American criminal law) is a person with information alleged to be material A material is a substance Substance may refer to: * Substance (Jainism), a term in Jain ontology to denote the base or owner of attributes * Chemica ...
*
United States Marshals Service The United States Marshals Service (USMS) is a federal law enforcement agency in the United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental Un ...
*
Witness protection Witness protection is security provided to a threatened witness, person providing testimonial evidence to the justice system, including defendants and other clients, before, during, and after a trial (law), trial, usually by police. While a witnes ...


References


Further reading

* Garraghan, Gilbert J. (1946). ''A Guide to Historical Method''. New York: Fordham University Press. . * Gottschalk, Louis (1950). ''Understanding History: A Primer of Historical Method''. New York: Alfred A. Knopf. . * Johnson, M. K. (2001). False Memories, Psychology of. IN: Smelser, N. J. & Baltes, P. B. (eds.) International ''Encyclopedia of the Social and Behavioral Sciences''. Amsterdam: Elsevier. (pp. 5254–5259). * Lakatos, I. (1970). Falsification and the methodology of scientific research programmes. In: Lakatos, I. & Musgrave, A. E. (eds.), ''Criticism and the Growth of Knowledge''. Cambridge, UK: Cambridge University Press: 59-89. * Loftus, Elizabeth F. (1996). ''Eyewitness Testimony. Revised edition''. Cambridge, MA: Harward University Press. (Original edition: 1979). * Read, J. D. (2001). Eyewitness Memory: Psychological Aspects. IN: Smelser, N. J. & Baltes, P. B. (eds.) International ''Encyclopedia of the Social and Behavioral Sciences''. Amsterdam: Elsevier. (pp. 5217–5221). * Roediger III, H. L. (2001). Reconstructive Memory, Psychology of. IN: Smelser, N. J. & Baltes, P. B. (eds.) International ''Encyclopedia of the Social and Behavioral Sciences''. Amsterdam: Elsevier. 12844-12849. * Ross D F, Read J D, Toglia M P (1994) ''Adult Eyewitness Testimony: Current Trends and Developments''. New York: Cambridge University Press. * Shepherd J W, Ellis H D, Davies G M (1982). ''Identification Evidence: A Psychological Evaluation''. Aberdeen University Press, Aberdeen, UK * Thompson C P, Herrmann D, Read J D, Bruce D, Payne D G, Toglia, M P (1998). ''Eyewitness Memory: Theoretical and Applied Perspective''. Mahwah, NJ: Erlbaum.


External links


Eyewitness memory
{{Authority control Evidence law