Witnesses


A witness is a person who has firsthand information about a significant event through their senses.  The declarations and statements of a witness are made under oath and are received as evidence for some purpose, whether such statements or declarations are made on oral examination or by deposition or affidavit.

The witness has to assist the courts in the administration of justice by attending court when required.  Under the Federal Rules of Civil Procedure, service of a subpoena upon a person named therein requires tender to the witness of fees for one day’s attendance and the mileage allowed by law.

The trial court may call as the court’s witness persons who were personally present at the event forming the basis of the prosecution, or whose testimony is material, or eyewitness, or any other witness.  The practice in criminal cases of calling someone as a court’s witness, while seldom used and not particularly desirable, is recognized as proper in both state and federal courts.  The result of one being called as a court’s witness is not too dissimilar from that of having a witness adjudged a hostile or a surprise witness. The effect is that neither party to the suit may be held responsible for the testimony of the witness and both of course may exercise the privilege of cross-examination[i].

A witness in attendance at any court of the United States, or before a United States Magistrate [United States Magistrate Judge], or before any person authorized to take his deposition pursuant to any rule or order of a court of the United States, shall be paid the fees and allowances so provided[ii].

To testify, a witness should be competent.  The competency of a witness depends upon the facts as they exist when the testimony is given. The traditional test is if the witness has intelligence to make it worthwhile to hear him/her at all and whether s/he feels a duty to tell the truth.

Under the Federal Rules of Evidence, every person is competent to be a witness except as otherwise provided in the rules; however, in civil actions and proceedings, with respect to an element of a claim or defense as to which state law supplies the rule of decision, the competency of a witness is to be determined in accordance with state law.

The purpose of direct examination is to get the witness to testify about facts that support the plaintiff’s case.  Questions which are so indefinite, vague, or which leave it almost entirely to the discretion of the witness as to what matters the witness will elucidate, are improper[iii].

Although leading questions are generally not permitted on direct examination, there are certain exceptions to this rule.  Depending on the circumstances, leading questions shall be objectionable or proper.  If the prosecutor believes that a witness may give an inadmissible answer during his examination, the prosecutor should warn the witness to refrain from making such a statement.

When a witness forgets things, the attorney can refresh his/her memory[iv].  In such circumstances, the attorney may attempt to refresh the witness by asking a leading question, showing the witness a document, which can be prepared by the witness.

It is not competent for a witness to state merely that another person knew a thing.  At present the law treats such statements as conclusions, not facts.  What was said to or by the testator would be legitimate evidence on the subject of knowledge[v].

After the direct examination of a witness, the opposing party may then cross-examine the witness, either to develop facts favorable to the cross-examiner or to discredit the witness.  If the witness is the plaintiff in the action, cross-examination may be employed to test the good faith of the witness and the righteousness of his/her case.

Impeachment is an attack upon the credibility of a witness.  The purpose of impeachment is to destroy credibility.  A witness may be impeached by proving that he is not worthy of credit, or that the facts to which he deposes are not true, or by cross-examination, in which he may be shown to be incosistent; and it is admissible under such circumstances to prove the good character of the witness [vi].

Corroborating evidence is evidence supporting a proposition that is already supported by some evidence.  Corroboration strengthens the testimony of another witness.  If corroboration tends to strengthen or add credibility to the testimony, corroborative evidence may include new and additional information.

In order to rehabilitate an impeached witness, the trial court should determine if the statements have some probative force bearing on the credibility of the witness[vii].  If the credibility of a witness has been attacked on the ground that influence of others has altered his/her testimony, supporting evidence and the nature of prior consistent statements may be introduced.  A witness’s credibility can be affected by factors such as the credibility of other witnesses in the case, the plausibility of the theory, and theme the witness is meant to support, the order in which witnesses are called, and the character of the jury.

[i] Smith v. United States, 331 F.2d 265 (8th Cir. Iowa 1964).

[ii] 28 USCS § 1821.

[iii] Southwest Metals Co. v. Gomez, 4 F.2d 215, 218 (9th Cir. Ariz. 1925).

[iv] USCS Fed Rules Evid R 612.

[v] Slaughter v. Heath, 127 Ga. 747 (Ga. 1907).

[vi] La Follette Coal, Iron & Ry. Co. V. Minton, 117 Tenn. 415 (Tenn. 1906).

[vii] Smith v. City of Phila., 2009 U.S. Dist. LEXIS 96594 (E.D. Pa. Oct. 19, 2009).

Inside Witnesses