WITNESS - Person who comes to court
and swears under oath to give truthful evidence. One
who, being sworn or affirmed, according to law, deposes
as to his knowledge of facts in issue between the
parties in a cause.
In another sense by witness is understood one who
is called upon to be present at a transaction, as
a wedding, or the making of a will. When a person
signs his name to an instrument, as a deed, a bond,
and the like, to signify that the same was executed
in his presence, he is called an attesting witness.
The testimony of witnesses can never have the effect
of a demonstration, because it is not impossible,
indeed it frequently happens, that they are mistaken,
or wish themselves to deceive. There can, therefore,
result no other certainty from their testimony than
what arises from analogy. When in the calm of the
passions, we listen only to the voice of reason and
the impulse of nature we feel in ourselves a great
repugnance to betray the truth, to the pre-judice
of another, and we have observes that honest, intelligent
and disinterested persons never combine to deceive
others by a falsehood. We conclude then, by analogy,
with a sort of moral certainty, that a fact attested
by several witnesses, worthy of credit, is true. This
proof derives its whole force from a double presumption.
We presume, in the first place, on the good sense
of the witnesses that they have not been mistaken;
and, secondly, we presume on their probity that they
wish not to deceive. To be certain that they have
not been deceived, and that they do not wish to mislead,
we must ascertain, as far as possible, the nature
and the quality of the facts proved; the quality and
the person of the witness; and the testimony itself,
by comparing it with the deposition of other witnesses,
or with known facts.
It is proper to consider, 1st. The character of the
witness. 2d. The quality of the witness. 3d. The number
of witnesses required by law.
When we are called upon to rely on the testimony
of another in order to form a judgment as to certain
facts, we must be certain, 1st. That he knows the
facts in question, and that he is not mistaken; and,
2d. That he is disposed to tell the truth, and has
no desire to impose on those who are to form a judgment
on his testimony. The confidence therefore, which
we give to the witness must be considered, in the
first place, by his capacity or his organization,
and in the next, by the interest or motive which he
has to tell or not to tell the truth. When the facts
to which the witness testifies agree with the circumstances
which are known to exist, he becomes much more credible
than when there is a contradiction in this respect.
It is true that until impeached one witness is as
good as another; but when a witness is impeached,
although he remains competent, he is not as credible
as before.
As to the quality of the witnesses, it is a general
rule that all persons way be witnesses. To this there
are various exceptions. A witness may be incompetent,
1. For want of understanding. 2. On account of interest.
3. Because his admission is contrary to public policy.
4. For want of religious principles; and, 5. On account
of infamy.
Persons who want understanding, it is clear, cannot
be witnesses, because they are to depose to facts
which they know; and if they have no understanding,
they cannot know the facts. There are two classes
of persons of this kind.
Infants. A child of any age capable of distinguishing
between good and evil may be examined as a witness;
and in all cases, the examination must be under oath
or affirmation. This appears to be the rule in England;
though formerly it was held by some judges that it
was a presumption of law that the child was incompetent
when he was under seven years of age. When the child
is under fourteen, he is presumed incapable until
capacity is shown; when he is over fourteen he may
be sworn without a previous examination.
Idiots and lunatics. An idiot cannot be examined
as a witness, but a lunatic, during a lucid interval,
may be examined. A person in a state of intoxication
cannot be admitted as a witness.
Interest in the event of the suit excludes the witness
from examination, unless under certain circumstances.
See article Interest. The exceptions are the cases
of informers, when the statute makes them witnes-ses,
although they may be entitled to a penalty persons
entitled to a reward, are sometimes competent; agents
are also admitted in order to prove a contract made
by them on the part of the principal. A mere trustee
may be examined by either party. An interested witness
competency may be restored by a release.
There are some persons who cannot be examined as
witnesses, because it is inconsistent with public
policy that they should testify against certain persons;
these are,
Husband and wife. The reason for excluding them from
giving evidence, either for or against each other,
is founded partly on their identity of interest, partly
on a principle of public policy which deems it necessary
to guard the security and confidence of private life,
even at the risk of an occasional failure of justice.
They cannot be witnesses for each other because their
interests are absolutely the same; they are not witnesses
against each other, because it is against the policy
of marriage. This is the rule when either is a party
to a civil suit or action.
But where one of them, not being a party, is interested
in the result, there is a distinction between the
giving evidence for and against the other. It is an
invariable rule that neither of them is a witness
for the other who is interested in the result, and
that where the husband is disqualified by his interest,
the wife is also incompetent.
On the other hand, where the interest of the husband,
consisting in a civil liability, would not have protected
him from examination, it seems that the wife must
also answer, although the effect may be to subject
her husband to an action. This case differs very materially
from those where the husband himself could not have
been examined, either because he was a party or because
he would criminate himself. The party to whom the
testimony of the wife is essential, has a legal interest
in her evidence; and as he might insist on examining
the husband, it would, it seems, be straining the
rule of policy too far to deprive him of the benefit
of the wife's testimony. In an action for goods sold
and delivered, it has been held that the wife of a
third person is competent to prove that the credit
was given to her husband.
When neither of them is either a party to the suit,
nor interested in the general result, the husband
or wife is, it seems, competent to prove any fact,
provided the evidence does not directly criminate,
or tend to criminate, the other.
It has been held in Pennsylvania that the deposition
of a wife on her death-bed, charging her husband with
murdering her, was good evidence against him, on his
trial for murder. On an indictment for a conspiracy
in inveigling a young girl from her mother's house,
and she being intoxicated, procuring the marriage
ceremony to be recited between her and one of the
defendants, the girl is a competent witness to prove
the facts.
And on an indictment for forcible entry, the wife
of the prosecutor was examined as a witness to prove
the force, but only the force.
Attorneys. They cannot be examined as witnesses as
to confidential communications which they have received
from their clients, made while the relation of attorney
and client subsisted. Communications thus protected
must have been made to him as instructions ne-cessary
for conducting the cause, and not any extraneous or
impertinent matter they must have been made to him
in the character of a counsel and not as a friend
merely they must have been made while the relation
of counsel and client existed, and not after. An attorney
may be examined as to the existence of a paper entrusted
to him by his client, and as to the fact that it is
in his possession, but he cannot be compelled to produce
it, or disclose its date or contents. He may also
be called to prove a collateral fact not entrusted
to him by his client; as to prove. his client's handwriting.
He is a competent witness for his client, although
his judgment fee depends upon his success or he expects
to receive a larger fee from his client if the latter
succeeds. In Louisiana, the reverse has been decided.
It is there held that an attorney cannot become a
witness for his client in a cause in which he was
employed, by renouncing his fee, and having his name
struck off from the record, in that case.
Confessors. In New York it has been held that a confessor
could not be compelled to disclose secrets which he
had received in auricular confession.
Jurors. A juror is not competent to prove his own
or the conduct of his fellow jurors to impeach a verdict
they have rendered. And a judge in a cause which is
on trial before him cannot be a witness, as he cannot
decide on his own competency, nor on the weight of
his own testimony, compared with that of another.
Slaves. It is said that a slave could not be a witness
at common law because of the unbounded influence his
master had over him. By statutory provisions in the
slave states, a slave is generally held incompetent
in actions between white persons. In New York a free
black man is competent to prove facts happening while
he was a slave.
A party to a negotiable instrument, is not allowed
to give evidence to invalidate it. But the rule is
confined to negotiable instruments. This rule does
not appear to be very firmly established in England.
In the state courts of some of the United States it
has been adopted, and may now be considered to be
law. The witness may however testify to subsequent
facts, not tending to show that the instrument was
originally invalid.
When the witness has no religious principles to bind
his conscience, the law rejects his testimony; but
there is not such defect of religious principles,
when the witness believes in the existence of a God,
who will reward or punish in this world or that which
is to come.
Infamy is a disqualification while it remains.
As to the number of witnesses, it is a general rule
that one witness is sufficient to establish a fact,
but to this there are exceptions, both in civil and
criminal cases.
In civil cases. The laws of perhaps all the states
of the Union require two witnesses and some require
even more, to prove the execution of a last will and
testament devising lands.
In criminal cages, there are several instances where
two witnesses at least are required. The constitution
of the United States, art. 3, provides that no person
shall be convicted of treason, unless on the testimony
of two witnesses to the same overt act, or on confession
in open court. In cases of perjury there must evidently
be two witnesses, or one witness, and such circumstances
as have the effect of one witness; for if there be
but one witness, then there is oath against oath,
and therefore uncertainty.
A witness may be compelled to attend court. In the
first place a subpoena requiring his attendance must
be served upon him personally, and on his neglect
to attend, an attachment for contempt will be issued.
