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evidence

evidence, in law, material submitted to a judge or a judicial body to resolve disputed questions of fact. The rules discussed in this article were developed in England for use in jury trials. Today, they are generally observed in all countries having the common law, although they have been extensively modified by statute in some jurisdictions. The first juries were not neutral triers of fact; rather they were convened because of their immediate knowledge of the dispute before the court. Later, the practice developed of having witnesses testify before an impartial jury. The groundwork of the rules of evidence was laid between 1500 and 1700.

The Role of Evidence in a Trial; Burdens of Proof

In criminal trials, the prosecution has to prove each element necessary to its case beyond a reasonable doubt. In civil trials, on the other hand, a party has the burden only of proving affirmative contentions by a preponderance of the evidence. Thus the plaintiff must offer some proof of each of the elements that combine to constitute the defendant's alleged wrong (see procedure), while the defendant must prove his or her affirmative defenses, e.g., in a suit for negligence, that the plaintiff's own negligence contributed to the injury.

Satisfying the burden of proof requires the prosecutor or the plaintiff to present evidence first. At the close of this presentation the criminal or civil defendant may move for acquittal or a nonsuit if admissible evidence supporting necessary contentions has not been offered. Proof may be dispensed with when an adversary formally admits a fact either in the pleadings or in court, or when the court may take judicial notice of the fact, i.e., when the fact is universally known or is easily ascertainable by the judge beyond reasonable dispute.

In recent years the problems of procuring evidence have been eased somewhat by the introduction of broader discovery (i.e., disclosure) rules. In civil cases, these rules compel each party to a suit to allow the other to have access to its witnesses and to certain types of evidence before the trial. In criminal cases, the judge has the discretionary power to order discovery; in any event, the prosecutor must release all exculpatory evidence on request.

Allegedly damaging errors in the admission of evidence are reviewable on appeal if an objection was made during the trial. In their final summing up, the attorneys may make any assertion that is supported to some degree by evidence. British judges and U.S. federal and, in some jurisdictions, state judges are permitted to comment on the credibility of the witnesses and the weight of the evidence. However, the judge must tell the jury that they are not bound by his or her remarks.

See also verdict.

Admissible Evidence

Evidence is often presented in a tense, emotional atmosphere in a courtroom long after the event in question took place. The object of the law of evidence is to assure a high probability that questions of fact are resolved correctly. To that end, material introduced at the trial is ordinarily restricted to items of great probative value; that which may arouse unreasoning passion is ordinarily excluded. The nature of the legal controversy and the written pleadings determine what assertions of fact each party must prove or disprove to win the case, and an item of evidence that at best has a remote bearing on the factual issues must be excluded as irrelevant or immaterial. A judge prefers direct evidence (such as an official document or a witness's assertion of immediate knowledge of the question at issue) to indirect or circumstantial evidence, which merely tends to establish the issue by proving surrounding circumstances from which the principal fact may be inferred.

In addition to being relevant, evidence must be competent, i.e., it must not fall under an exclusionary rule. Obviously if the evidence is documentary (e.g., a birth certificate introduced to prove a person's age) or if it is “real” (e.g., a bloody garment exhibited to prove that the victim suffered injury), there can be a question only whether the proffered evidence is itself incompetent. The courtroom presentation of documentary evidence has been complicated by new computer technologies and the digitalization of information, which make the successful forging of texts and photographs far easier than previously.

Witnesses

Most evidence is offered by witnesses who testify before the court. Here, the question of the witness's personal competency must be resolved; it must be shown that the witness was able to know, understand, and remember the matters on which he or she is to be examined. Thus, a witness must possess the sensory faculties needed to apprehend the facts reported and must not be considered mentally ill or incompetent. Children offered as witnesses are examined by the judge to determine their intelligence and understanding.

The witness is first directly examined by the party who offers him or her, then is cross-examined by the adversary. No witness may express an opinion on any matter when the jury can draw its own conclusions from the facts; but on technical questions an expert witness (e.g., a physician) may state an opinion. Hearsay declarations (e.g., testimony concerning a statement made out of court by a person not now before the court) usually are excluded on the grounds that the person who made the statement is not available for cross-examination or for evaluation by the judge or jury. Only when the circumstances of the statement afford a high probability of its truth may it be admitted.

A witness may be excused from testifying about certain matters if he or she pleads personal privilege. In general, information confided in the course of the relations of attorney and client, priest and penitent, physician and patient, and husband and wife is subject to this privilege. In some jurisdictions such witnesses are incompetent to testify (cannot testify). Witnesses are further protected by the Fifth Amendment privilege of withholding evidence that might be self-incriminating. Criminal defendants have the privilege of refusing to take the witness stand (in which case the jury may make no negative assumptions concerning the reasons for such a refusal) and, in most situations, evidence of previous criminal convictions is inadmissible. Under the common law, parties to a civil suit and the defendant in a criminal action were not permitted to testify, but these rules have been abandoned.

Bibliography

Among the many modern treatises on the law of evidence those of J. H. Wigmore are often accorded the highest authority. See also studies by M. J. Saks and R. Van Duizend (1983); P. Achinstein (1984); I. Younger and M. Goldsmith (1984); J. H. Friedenthal and M. Singer (1985).

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The following article is from The Great Soviet Encyclopedia (1979). It might be outdated or ideologically biased.

Witness

 

in law, a person summoned by a court or investigating authority to give testimony concerning circumstances that are known to the person and are important for resolving a criminal or civil case. In Soviet law, a witness may be any person, with certain exceptions, regardless of age or relationship—family or other—to persons involved in a case. The exceptions include defendants in criminal cases, representatives in civil cases, and people who for mental or physical reasons are unable to perceive the facts or give accurate testimony. The accused may not be questioned as a witness on the circumstances surrounding the act for which he or his accomplices are accused. A witness cannot be replaced and is not subject to challenge.

A witness must appear when summoned and must given complete and truthful testimony. Failure to appear without good reason can result in a fine or compulsory appearance. A witness is criminally responsible for giving deliberately false testimony, for refusing to answer, or for giving evasive answers. He has the right to give testimony in his native language, and at a pretrial investigation he may look over the report of his questioning and request corrections and supplements. A witness may also request an appeal of the actions of an investigator. A witness summoned to testify continues to receive his normal wages and is compensated for traveling expenses and lodging.

The Great Soviet Encyclopedia, 3rd Edition (1970-1979). © 2010 The Gale Group, Inc. All rights reserved.

Witness

cranes of Ibycus
called on by the dying poet to bear witness, the birds lead to the murderers’ conviction. [Gk. Myth.: NCE, 1307]
Allusions—Cultural, Literary, Biblical, and Historical: A Thematic Dictionary. Copyright 2008 The Gale Group, Inc. All rights reserved.

witness

1. a person or thing giving or serving as evidence
2. a person who testifies, esp in a court of law, to events or facts within his own knowledge
3. a person who attests to the genuineness of a document, signature, etc., by adding his own signature
4. bear witness
a. to give written or oral testimony
b. to be evidence or proof of
Collins Discovery Encyclopedia, 1st edition © HarperCollins Publishers 2005