Witness

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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.

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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 is a legal document that commands a person to appear at a proceeding. It is used to compel the testimony of a witness in a trial. Usually, it can be issued by a judge or by the lawyer representing the plaintiff or the defendant in a civil trial or by the prosecutor or the defense attorney in a criminal proceeding, or by a government agency. In many jurisdictions, it is compulsory to comply with the subpoena and either take an oath 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 senses (e.g., visual perception, hearing, smell, touch). That perception might be either with the unaided human sense or with the aid of an instrument, such as microscope or stethoscope.

A hearsay 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 is one who allegedly has specialized knowledge relevant to the matter of interest, which knowledge purportedly helps to either make sense of other evidence, [1] 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. [1]

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. [2]

A secret witness or anonymous witness is one whose identity is kept secret by the court. [3]

Calling a witness

Heinrich Buscher [de] as a witness during the Nuremberg Trials Heinrich Buscher.jpg
Heinrich Buscher  [ de ] as a witness during the Nuremberg Trials

In a court proceeding, a witness may be called (requested to testify) by either the prosecution or the defense. The side that calls the witness first asks questions in what is called direct examination. The opposing side then may ask their own questions in what is called cross-examination. 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 (hearsay). 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. [4] 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. [5]

One study involved an experiment, in which subjects acted as jurors 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). [6]

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. [7]

Weapon focus effects in which the presence of a weapon impairs 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. [8]

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 [9] note, the single most important factor contributing to wrongful conviction is eyewitness misidentification. [10]

Credibility

A credible witness is a person who acts as a witness, including through giving testimony in court, whose testimony is perceived as truthful and believable. [11] [12] Other witnesses may be perceived as less credible, or to have no credibility. [13] Assessment of credibility is made of each witness, and is not affected by the number of witnesses who testify. [14] Several factors affect witnesses' credibility. Generally, witnesses are perceived as more credible when they are perceived as more accurate and less suggestible. [15] [16]

At common law, the term could be used in relation to the giving of testimony, or for the witnessing of documents. [17] In modern English law, a credible witness is one who is not "speaking from hearsay." [18] In Scottish law, a credible witness is one "whose credibility commends itself to the presiding magistrate ... the trustworthiness" of whom is good. [18]

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, a credible witness to a Will means a witness who is not incapacitated by mental deficiency, conflict of interest, or crime. [18]

See also

Related Research Articles

A deposition in the law of the United States, or examination for discovery in the law of Canada, involves the taking of sworn, out-of-court oral testimony of a witness that may be reduced to a written transcript for later use in court or for discovery purposes. Depositions are commonly used in litigation in the United States and Canada. They are almost always conducted outside court by the lawyers themselves, with no judge present to supervise the examination.

Testimony is a solemn attestation as to the truth of a matter.

An arrest warrant is a warrant issued by a judge or magistrate on behalf of the state which authorizes the arrest and detention of an individual or the search and seizure of an individual's property.

Hearsay is testimony from a witness under oath who is reciting an out-of-court statement that is being offered to prove the truth of the matter asserted.

Together, legal psychology and forensic psychology form the field more generally recognized as "psychology and law". Following earlier efforts by psychologists to address legal issues, psychology and law became a field of study in the 1960s as part of an effort to enhance justice, though that originating concern has lessened over time. The multidisciplinary American Psychological Association's Division 41, the American Psychology–Law Society, is active with the goal of promoting the contributions of psychology to the understanding of law and legal systems through research, as well as providing education to psychologists in legal issues and providing education to legal personnel on psychological issues. Further, its mandate is to inform the psychological and legal communities and the public at large of current research, educational, and service in the area of psychology and law. There are similar societies in Britain and Europe.

First adopted in 1975, the Federal Rules of Evidence codify the evidence law that applies in United States federal courts. In addition, many states in the United States have either adopted the Federal Rules of Evidence, with or without local variations, or have revised their own evidence rules or codes to at least partially follow the federal rules.

The law of evidence, also known as the rules of evidence, encompasses the rules and legal principles that govern the proof of facts in a legal proceeding. These rules determine what evidence must or must not be considered by the trier of fact in reaching its decision. The trier of fact is a judge in bench trials, or the jury in any cases involving a jury. The law of evidence is also concerned with the quantum (amount), quality, and type of proof needed to prevail in litigation. The rules vary depending upon whether the venue is a criminal court, civil court, or family court, and they vary by jurisdiction.

Witness impeachment, in the law of evidence of the United States, is the process of calling into question the credibility of an individual testifying in a trial. The Federal Rules of Evidence contain the rules governing impeachment in US federal courts.

In the common law, spousal privilege is a term used in the law of evidence to describe two separate privileges that apply to spouses: the spousal communications privilege and the spousal testimonial privilege.

The Confrontation Clause of the Sixth Amendment to the United States Constitution provides that "in all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him." The right only applies to criminal prosecutions, not civil cases or other proceedings. Generally, the right is to have a face-to-face confrontation with witnesses who are offering testimonial evidence against the accused in the form of cross-examination during a trial. The Fourteenth Amendment makes the right to confrontation applicable to the states and not just the federal government.

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 unless an exception to the hearsay rule applies.

The hearsay provisions of the Criminal Justice Act 2003 reformed the common law relating to the admissibility of hearsay evidence in criminal proceedings begun on or after 4 April 2005.

In the law of evidence, a dying declaration is testimony that would normally be barred as hearsay but may in common law nonetheless be admitted as evidence in criminal law trials because it constituted the last words of a dying person. The rationale is that someone who is dying or believes death to be imminent would have less incentive to fabricate testimony, and as such, the hearsay statement carries with it some reliability.

Witness immunity from prosecution occurs when a prosecutor grants immunity to a witness in exchange for testimony or production of other evidence.

Prior consistent statements and prior inconsistent statements, in the law of evidence, occur where a witness, testifying at trial, makes a statement that is either consistent or inconsistent, respectively, with a previous statement given at an earlier time such as during a discovery, interview, or interrogation. The examiner can impeach the witness when an inconsistent statement is found, and may conversely bolster the credibility of an impeached witness with a prior consistent statement.

In eyewitness identification, in criminal law, evidence is received from a witness "who has actually seen an event and can so testify in court".

Eyewitness testimony is the account a bystander or victim gives in the courtroom, describing what that person observed that occurred during the specific incident under investigation. Ideally this recollection of events is detailed; however, this is not always the case. This recollection is used as evidence to show what happened from a witness' point of view. Memory recall has been considered a credible source in the past, but has recently come under attack as forensics can now support psychologists in their claim that memories and individual perceptions can be unreliable, manipulated, and biased. As a result of this, many countries, and states within the United States, are now attempting to make changes in how eyewitness testimony is presented in court. Eyewitness testimony is a specialized focus within cognitive psychology.

Forensic developmental psychology is a field of psychology that focuses on "children's actions and reactions in a forensic context" and "children's reports that they were victims or witnesses of a crime". Bruck and Poole (2002) first coined the term "forensic developmental psychology". Although forensic developmental psychology specifically focuses on a child's reliability, credibility, and competency in the courtroom setting, it also includes topics such as autobiographical memory, memory distortion, eyewitness identification, narrative construction, personality, and attachment.

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), is a United States Supreme Court case in which the Court held that it was a violation of the Sixth Amendment right of confrontation for a prosecutor to submit a chemical drug test report without the testimony of the person who performed the test. While the court ruled that the then-common practice of submitting these reports without testimony was unconstitutional, it also held that so called "notice-and-demand" statutes are constitutional. A state would not violate the Constitution through a "notice-and-demand" statute by both putting the defendant on notice that the prosecution would submit a chemical drug test report without the testimony of the scientist and also giving the defendant sufficient time to raise an objection.

<span class="mw-page-title-main">Evidence Act 2006</span> Act of Parliament in New Zealand

The Evidence Act 2006 is an Act of the Parliament of New Zealand that codifies the laws of evidence. When enacted, the Act drew together the common law and statutory provisions relating to evidence into one comprehensive scheme, replacing most of the previous evidence law on the admissibility and use of evidence in court proceedings.

References

  1. 1 2 "Discovery". www.justice.gov. 2014-11-07. Retrieved 2020-10-22.
  2. ↑ "Good practices for the protection of witnesses in criminal proceedings involving organized crime" (PDF). United Nations . 2008. p. 19. Retrieved 21 October 2020.
  3. ↑ "Witness protection and anonymity | The Crown Prosecution Service". www.cps.gov.uk. Retrieved 2020-12-14.
  4. ↑ "APA PsycNet". psycnet.apa.org. Retrieved 2022-11-05.
  5. ↑ Ebbesen, Ebbe B.; Rienick, Cynthia B. (1998). "Retention interval and eyewitness memory for events and personal identifying attributes". Journal of Applied Psychology. 83 (5): 745–762. doi:10.1037/0021-9010.83.5.745. PMID   9806014.
  6. ↑ Loftus, Belinda; Coppock, Christopher (1988). "Bridging the Gulf". Circa (38): 25–28. doi:10.2307/25557277. ISSN   0263-9475. JSTOR   25557277.
  7. ↑ "University of Nebraska Center for Great Plains Studies". Plains Anthropologist. 22 (75): 50. February 1977. doi:10.1080/2052546.1977.11908818. ISSN   0032-0447.
  8. ↑ Convicting the Innocent: Sixty-Five Actual Errors of Criminal Justice by Borchard, pg 367
  9. ↑ "NCJRS Abstract - National Criminal Justice Reference Service". www.ncjrs.gov. Retrieved 2018-04-16.
  10. ↑ Huff, C. Ronald; Rattner, Arye; Sagarin, Edward; MacNamara, Donal E. J. (5 September 2016). "Guilty Until Proved Innocent: Wrongful Conviction and Public Policy". Crime & Delinquency. 32 (4): 518–544. doi:10.1177/0011128786032004007. S2CID   145281693.
  11. ↑ Dowd, Rebecca; Hunter, Jill; Liddell, Belinda; McAdam, Jane; Nickerson, Angela; Bryant, Richard (11 July 2018). "Filling Gaps and Verifying Facts: Assumptions and Credibility Assessment in the Australian Refugee Review Tribunal". International Journal of Refugee Law. 30 (1): 71–103. doi:10.1093/ijrl/eey017.
  12. ↑ Hill, Gerald N. (2002). The people's law dictionary : taking the mystery out of legal language. New York, NY: MJF Books. ISBN   9781567315530.
  13. ↑ Tenney, Elizabeth R.; MacCoun, Robert J.; Spellman, Barbara A.; Hastie, Reid (January 2007). "Calibration Trumps Confidence as a Basis for Witness Credibility". Psychological Science. 18 (1): 46–50. doi:10.1111/j.1467-9280.2007.01847.x. PMID   17362377. S2CID   10464801.
  14. ↑ Lehman, Jeffrey; Phelps, Shirelle (2005). West's Encyclopedia of American Law. Detroit: Thomson/Gale. p. 407. ISBN   9780787663773.
  15. ↑ Newcombe, Peter A.; Bransgrove, Jennifer (July 2007). "Perceptions of witness credibility: Variations across age". Journal of Applied Developmental Psychology. 28 (4): 318–331. doi:10.1016/j.appdev.2007.04.003.
  16. ↑ Leippe, Michael R.; Manion, Andrew P.; Romanczyk, Ann (August 1992). "Eyewitness persuasion: How and how well do fact finders judge the accuracy of adults' and children's memory reports?". Journal of Personality and Social Psychology. 63 (2): 181–197. doi:10.1037/0022-3514.63.2.181.
  17. ↑ Wong, Anna (2020). "Looks Can Be Deceiving: The Irrelevance of Demeanour in Witness Assessments". Criminal Law Quarterly. 68.
  18. 1 2 3 Words and phrases legally defined, Vol. 1 (3rd ed.). London: Butterworths. 1988. pp. 373–374. ISBN   9780406080431.

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