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Legal Dictionary

witness

Legal Definition of witness

Noun

  1. The regular definition of this word is a person who perceives an event (by seeing, hearing, smelling or other sensory perception). The legal definition refers to the court-supervised recital of that sensory experience, in writing (deposition) or verbally (testimony).

Definition of witness

Etymology

    From Middle English witnesse, from Old English witnes (“knowledge, witness, testimony, a witness”), equivalent to wit +‎ -ness. Cognate with Middle Dutch wetenisse (“witness, testimony”), Old High German gewiznessi (“testimony”).

Pronunciation

Noun

witness (plural witnesses)

  1. Attestation of a fact or event.

    She can bear witness, since she was there at the time.

  2. One who has a personal knowledge of something.

    As a witness to the event, I can tell you that he really said that.

  3. Someone called to give evidence in a court.

    The witness for the prosecution did not seem very credible.

  4. Something that serves as evidence; a sign.

Verb

witness (third-person singular simple present witnesses, present participle witnessing, simple past and past participle witnessed)

  1. (transitive) To furnish proof of, to show.

    This certificate witnesses his presence on that day.

  2. (transitive) To take as evidence.

    * 1993, Vicki M. Pino, “Viewpoints from our Readers after "Aprongate": Lighten up”, Atlanta Journal Constitution:
    Depression often goes undetected until it is too late . Witness the recent White House suicide.

  3. (transitive) To see, note, or gain knowledge of.

    He witnessed the accident.

Further reading

A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses (e.g. seeing, hearing, smelling, touching) and can help certify important considerations about the crime or event. A witness who has seen the event first hand is known as an eyewitness. Witnesses are often called before a court of law to testify in trials.

A subpoena commands a person to appear. 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. In many jurisdictions, it is compulsory to comply, to take an oath, and to tell the truth, under penalty of perjury.

A witness who specializes in an area of study relevant to a crime is called an expert witness. Scientists and doctors are often called to give expert witness testimony.

Court procedure

- Calling a witness

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 then 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 only give leave to a party to recall a witness 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

Witness are usually only permitted to testify to what they experienced first hand. In most cases, they may not testify about something they were told (hearsay). This restriction does not apply to expert witnesses. Expert witnesses, however, may only testify in the area of their expertise.

Reliability

Eyewitness testimony is generally presumed to be more reliable than circumstantial evidence. Studies have shown, however, that individual, separate witness testimony is often flawed, and parts of it can be meaningless. This can occur because of flaws in Eyewitness identification (such as faulty observation and recollection, or bias), or because a witness is lying. If several people witness a crime, it is probative to look for similarities in their collective descriptions to substantiate the facts of an event, keeping in mind the contrasts between individual descriptions.

One study involved an experiment, in which subjects acted as jurors in a criminal case. Jurors heard a description of a robbery-murder, then 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 first case, 18% percent found the defendant guilty, but in the second, 72% found the defendant guilty (Loftus 1988).

Police lineups, where the eyewitness picks out a suspect from a group of people in the police station, are often grossly suggestive, and 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 effects in which the presence of a weapon impairs memory for surrounding details is also an issue.

Another study looked at sixty-five cases of "erroneous criminal convictions of innocent people." In 45% of the cases, eyewitness mistakes were responsible (Borchard p. 367).

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. We do this by employing the mental skills at our disposal such as thinking, perception, memory, awareness, reasoning and judgment. Although cognitive processes can only be 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 we think, perceive, reason and judge is not always perfect, then it becomes easier to understand why cognitive processes and the factors influencing these processes are studied by psychologists in matters of law; not least because of the grave implications that this imperfection can have within the criminal justice system.

The study of witness memory has dominated this realm of investigation. As Huff and Rattner note: the single most important factor contributing to wrongful conviction is eyewitness misidentification.

Credibility of a witness

Several factors affect witnesses' credibility. Generally, a witness is deemed to be credible if they are recognized (or can be recognized) as a source of reliable information about someone, an event, or a phenomenon. As an example, the 2009 arrest of an illegal immigrant from El Salvador in the murder of federal intern Chandra Levy saw many questions arise surrounding the credibility of various witnesses. One attorney, David Benowitz, stated that he would question the witnesses' motivation for cooperating with police and inquire about the circumstances under which they were interviewed. Contesting the credibility of so-called "expert" witnesses rose into more common practice in the 1860's and 1870's.

References:

  1. Wiktionary. Published under the Creative Commons Attribution/Share-Alike License.



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