Witnesses

From Criminal Defense Wiki
Jump to navigationJump to search

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.