Difference between revisions of "Witnesses"

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'''Non self-incrimination''': There is a common law privilege against self-incrimination. Some jurisdictions have  specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).
 
'''Non self-incrimination''': There is a common law privilege against self-incrimination. Some jurisdictions have  specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).
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See [[Evidence]] [[Competency to Testify]] [[Examination of Witnesses]]

Revision as of 09:18, 10 July 2012

Two questions must be asked before acknowledging someone as a witness:

  1. Who can give evidence? This question relates to competence
  2. Who must give evidence? This question relates to compellability

Three important capacities for a witness

  • Perception

Capacity to perceive entails not only an ability to perceive events as they occur, but also an ability to differentiate between that which is actually perceived and that which the person may have imagined, been told by others, or otherwise have come to believe.

  • Recollection

Capacity to remember refers to the person' capacity to maintain a recollection of his/her actual perceptions of a prior event, and the ability to distinguish those retained perceptions from information provided to the persons from other sources, such as statements made to person by others.

  • Communication

Capacity to communicate refers to the ability to understand questions and to respond to them in an intelligible fashion.

The public has the right to everyone's evidence and has a general duty to give what evidence one is capable of giving and exemptions are exceptional.

Requirement of Oath or Affirmation

Traditionally, it is a promise to one's god, to invite the deity to observe their testimony in court and punish them if they lie.

In modern secular age, it is common to have people make a solemn affirmation to tell the whole truth and nothing but the truth (secular affirmation).

Testimonial Competence

The law supports the testimony of anyone deemed competent because it is in the interest of the principle of fundamental justice. However, there are several exceptions to this principle, for spouses, issues of cometence for minors or mentally disabled. A convition will not make a witness incompetent but may go to weight. At common law, anyone with an interest in the outcome will cause evidence to be excluded as incompetent because of perjury concerns. This is now eradicated in many jurisdictions and it is now a matter of common sense and can be determined in cross examination going to credibility. See also Competency to Testify

Compellability to testify

Anyone who is competent is compellable to testify, with a subpoena.

There are some exceptions:

  • The accused is not compellable. He shall be protected against self-incrimination and has the right to silence.
  • Spouses are not compellable, to protect the marriage (e.g.: pillow talk).
  • Diplomatic immunity
  • Monarch
  • Lawyer-client privilege: A lawyer cannot be held in contempt for not disclosing the information received from a client or third party.
  • Co-accused - note that this is sometimes an incentive for the prosecution to sever co-accused and try each in separate trials.

Failures to Testify

  • The accused

The court should not comment on or read into the failure of the accused to testify. This is to protect the accused's right of privilege against self-incrimination. No adverse interference should be drawn (although in some jurisdictions, appellate courts will draw an adverse interference). If the accused tesfifies, the prosecution should not ask if the accused has a criminal record.

  • Witness Privileges

Marital communications: Any witness that is a spouse, even though competent and compellable by both the defence and the Crown still have a privilege as a right to refuse questions regarding (only) marital communications.

Lawyer-Client privilege: A lawyer may be a competent and compellable witness. But lawyer-client communication is privileged information and a lawyer can refuse (or must refuse) to testify regarding what a client has told them. Note that priests and doctors have confidence rules too, but in general, these do not extend to the witness box.

Non self-incrimination: There is a common law privilege against self-incrimination. Some jurisdictions have specific privilege against self-incrimination, while others (like Canada) forces individuals who choose to take the stand to answer, but the answer is not admissible in subsequent proceedings. Testimony cannot be used in subsequent trials to prove innocence or guilt (except in perjury trials).


See Evidence Competency to Testify Examination of Witnesses