Witness
Encyclopedia
A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime
, through his or her sense
s (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 jurisdiction
s, 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.
. 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.
). This restriction does not apply to expert witnesses. Expert witnesses, however, may only testify in the area of their expertise.
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 lineup
s, 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.
. 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.
Crime
Crime is the breach of rules or laws for which some governing authority can ultimately prescribe a conviction...
, through his or her sense
Sense
Senses are physiological capacities of organisms that provide inputs for perception. The senses and their operation, classification, and theory are overlapping topics studied by a variety of fields, most notably neuroscience, cognitive psychology , and philosophy of perception...
s (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
Eyewitness
Eyewitness may refer to:*Witness, someone who has knowledge about a crime or dramatic event through seeing it firsthand*Eyewitness , natural history television series*Eyewitness *Eyewitness...
. Witnesses are often called before a court
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
of law to testify in trials.
A subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
commands a person to appear. It is used to compel the testimony
Testimony
In law and in religion, testimony is a solemn attestation as to the truth of a matter. All testimonies should be well thought out and truthful. It was the custom in Ancient Rome for the men to place their right hand on a Bible when taking an oath...
of a witness in a trial
Trial (law)
In law, a trial is when parties to a dispute come together to present information in a tribunal, a formal setting with the authority to adjudicate claims or disputes. One form of tribunal is a court...
. Usually, it can be issued by a judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
or by the lawyer
Lawyer
A lawyer, according to Black's Law Dictionary, is "a person learned in the law; as an attorney, counsel or solicitor; a person who is practicing law." Law is the system of rules of conduct established by the sovereign government of a society to correct wrongs, maintain the stability of political...
representing the plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
or the defendant
Defendant
A defendant or defender is any party who is required to answer the complaint of a plaintiff or pursuer in a civil lawsuit before a court, or any party who has been formally charged or accused of violating a criminal statute...
in a civil trial or by the prosecutor
Prosecutor
The prosecutor is the chief legal representative of the prosecution in countries with either the common law adversarial system, or the civil law inquisitorial system...
or the defense attorney in a criminal proceeding
Criminal procedure
Criminal procedure refers to the legal process for adjudicating claims that someone has violated criminal law.-Basic rights:Currently, in many countries with a democratic system and the rule of law, criminal procedure puts the burden of proof on the prosecution – that is, it is up to the...
. In many jurisdiction
Jurisdiction
Jurisdiction is the practical authority granted to a formally constituted legal body or to a political leader to deal with and make pronouncements on legal matters and, by implication, to administer justice within a defined area of responsibility...
s, it is compulsory to comply, to take an oath
Oath
An oath is either a statement of fact or a promise calling upon something or someone that the oath maker considers sacred, usually God, as a witness to the binding nature of the promise or the truth of the statement of fact. To swear is to take an oath, to make a solemn vow...
, and to tell the truth, under penalty of perjury
Perjury
Perjury, also known as forswearing, is the willful act of swearing a false oath or affirmation to tell the truth, whether spoken or in writing, concerning matters material to a judicial proceeding. That is, the witness falsely promises to tell the truth about matters which affect the outcome of the...
.
A witness who specializes in an area of study relevant to a crime is called an expert witness
Expert witness
An expert witness, professional witness or judicial expert is a witness, who by virtue of education, training, skill, or experience, is believed to have expertise and specialised knowledge in a particular subject beyond that of the average person, sufficient that others may officially and legally...
. 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 defenseDefense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
. The side that calls the witness first asks questions, in what is called direct examination
Direct examination
The Direct Examination or Examination-in-Chief is one stage in the process of adducing evidence from witnesses in a court of law. Direct examination is the questioning of a witness by the party who called him or her, in a trial...
. The opposing side then may ask their own questions in what is called cross-examination
Cross-examination
In law, cross-examination is the interrogation of a witness called by one's opponent. It is preceded by direct examination and may be followed by a redirect .- Variations by Jurisdiction :In...
. In some cases, redirect examination
Redirect examination
Redirect examination is the trial process by which the party who offered the witness has a chance to explain or otherwise qualify any damaging or accusing testimony brought out by the opponent during cross-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 (hearsayHearsay
Hearsay is information gathered by one person from another person concerning some event, condition, or thing of which the first person had no direct experience. When submitted as evidence, such statements are called hearsay evidence. As a legal term, "hearsay" can also have the narrower meaning of...
). This restriction does not apply to expert witnesses. Expert witnesses, however, may only testify in the area of their expertise.
Reliability
andEyewitness testimony is generally presumed to be more reliable than circumstantial evidence
Circumstantial evidence
Circumstantial evidence is evidence in which an inference is required to connect it to a conclusion of fact, like a fingerprint at the scene of a crime...
. 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
Eyewitness identification
Eyewitness identification, in criminal law, is evidence received from a witness "who has actually seen an event and can so testify in court"....
(such as faulty observation and recollection, or bias), or because a witness is lying. If several people witness a crime, it is probative
Probative
Relevance, in the common law of evidence, is the tendency of a given item of evidence to prove or disprove one of the legal elements of the case, or to have probative value to make one of the elements of the case likelier or not. Probative is a term used in law to signify "tending to prove."...
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
Circumstantial evidence
Circumstantial evidence is evidence in which an inference is required to connect it to a conclusion of fact, like a fingerprint at the scene of a crime...
; 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 lineup
Police lineup
A police lineup or identity parade is a process by which a crime victim or witness's putative identification of a suspect is confirmed to a level that can count as evidence at trial....
s, 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
Weapon focus
Weapon focus is a factor affecting the reliability of eyewitness testimony. Weapon focus signifies a witness to a crime diverting his or her attention to the weapon the perpetrator is holding, thus leaving less attention for other details in the scene and leading to memory impairments later for...
effects in which the presence of a weapon impairs memory
Memory
In psychology, memory is an organism's ability to store, retain, and recall information and experiences. Traditional studies of memory began in the fields of philosophy, including techniques of artificially enhancing 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
Eyewitness memory
Eyewitness memory refers to episodic memories that occur most frequently to the witness of a crime or dramatic event. These witness testimonies are highly relied upon in the judicial system. However, their validity is sometimes questioned due to the many influences that may take part in creating...
is usually undertaken within the broader category of cognitive processes
Cognition
In science, cognition refers to mental processes. These processes include attention, remembering, producing and understanding language, solving problems, and making decisions. Cognition is studied in various disciplines such as psychology, philosophy, linguistics, and computer science...
— 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' credibilityCredibility
Credibility refers to the objective and subjective components of the believability of a source or message.Traditionally, modern, credibility has two key components: trustworthiness and expertise, which both have objective and subjective components. Trustworthiness is based more on subjective...
. 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
El Salvador
El Salvador or simply Salvador is the smallest and the most densely populated country in Central America. The country's capital city and largest city is San Salvador; Santa Ana and San Miguel are also important cultural and commercial centers in the country and in all of Central America...
in the murder of federal intern Chandra Levy
Chandra Levy
Chandra Ann Levy was an American intern at the Federal Bureau of Prisons in Washington, D.C., who disappeared in May 2001. She was presumed murdered after her skeletal remains were found in Rock Creek Park in May 2002...
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.
See also
- Eyewitness identificationEyewitness identificationEyewitness identification, in criminal law, is evidence received from a witness "who has actually seen an event and can so testify in court"....
- Eyewitness memoryEyewitness memoryEyewitness memory refers to episodic memories that occur most frequently to the witness of a crime or dramatic event. These witness testimonies are highly relied upon in the judicial system. However, their validity is sometimes questioned due to the many influences that may take part in creating...
- Historical editorialHistorical editorialA historical editorial is an editorial written by a person contemporary to a historical event. To those studying history, a historical editorial may offer insight into commonly-held views about historically important events from a first hand perspective.-External links:* Houghton Mifflin Company. ...
- InformantInformantAn informant is a person who provides privileged information about a person or organization to an agency. The term is usually used within the law enforcement world, where they are officially known as confidential or criminal informants , and can often refer pejoratively to the supply of information...
- MartyrMartyrA martyr is somebody who suffers persecution and death for refusing to renounce, or accept, a belief or cause, usually religious.-Meaning:...
(the word originally meant witness) - Material witnessMaterial witnessA material witness is a person with information alleged to be material concerning a criminal proceeding. The authority to detain material witnesses dates to the First Judiciary Act of 1789, but the Bail Reform Act of 1984 most recently amended the text of the statute, and it is now codified at...
- United States Marshals ServiceUnited States Marshals ServiceThe United States Marshals Service is a United States federal law enforcement agency within the United States Department of Justice . The office of U.S. Marshal is the oldest federal law enforcement office in the United States; it was created by the Judiciary Act of 1789...
- Witness protectionWitness protectionWitness protection is protection of a threatened witness or any person involved in the justice system, including defendants and other clients, before, during and after a trial, usually by police...