Who Can be a Witness?





IN GENERAL WITNESSES in criminal trials are required to attend court to give evidence on behalf of the prosecution.

This will happen if the witness has made a statement in writing to the police setting out what they saw or heard when the incident occurred.


For example, if a traffic accident takes place the police will interview everybody present to see what they remembered.

That statement that you make (if the details are important for the prosecution case) may mean that the prosecution later request that you attend court to give evidence about what you saw/heard.



In a criminal trial a person can
only be convicted if the judge or jury
is satisfied beyond a reasonable doubt
that they have committed the crime.

What is the responsibility of a Witness?


In general the responsibility of the witness is to give evidence on behalf of the prosecution. I say “in general” because sometimes witnesses are required to give evidence on behalf of the Defence. I’ll get back to that later.


The witness is required to enter the witness box. If they are a prosecution witness, they’ll be questioned first by the Prosecutor as to what they saw or heard. When this process is finished, they can be cross-examined by the Defence.


If the witness has made a statement that the Defendant completely disagrees with (which is quite common) then the defence lawyer will generally put their client’s version of events to the witness and ask them to comment on it.


Ideally the defence lawyer will be trying to get the witness to accept that they may have been mistaken or even completely wrong in what they saw.


There’s a perfectly good reason for this.


In a criminal trial a person can only be convicted if the judge or jury is satisfied beyond a reasonable doubt that they have committed the crime.

If a witness for the prosecution agrees that they may have been mistaken as to what they saw or heard or that their statement is not entirely accurate, this will almost certainly create a doubt in the court’s mind.


And as a defence lawyer that is all that you need. Once a doubt has been raised -and provided the doubt is a reasonable one- that will lead to the Defendant’s acquittal.


What is a witness for the defence?


A WITNESS FOR THE defence is someone who is called by the defendant to give evidence on their behalf. Usually, the witness is someone known to the Defendant and who is happy to come to court on their behalf.


But sometimes they are not.


Sometimes they are not well known to the Defendant, but the Defendant feels that they are a vital witness whose evidence may help exonerate them.


Let’s go back to our traffic accident example from before.


Say you’ve had an accident where you collided with a cyclist who had sped between two lanes of traffic right in front of you. Even though traffic was crawling you could not avoid hitting him. You get out of your car to check on the cyclist who is lying on the street nursing an injured knee.


An independent witness
cannot be accused of favouring
one side or the other.


A man with a dog walks over to you. He checks on the cyclist and approaches you. He tells you that he has seen the whole thing and that there was nothing you could do to avoid the collision. Relieved you thank him.


You go back to check on the cyclist. Thankfully he is ok, just bruised with a sore leg. You hear sirens wailing behind you. The ambulance and the police arrive. You tell the police officer what has happened.


When you’re asked if anybody else had witnessed the accident you confirm that someone had. You turn to point out the man with the dog, but you cannot see him. You scan the street up and down but he is nowhere to be found. You shrug and continue to help the police with their inquiries.


Sometime later you receive a summons to appear in court to answer a charge of Reckless Driving.

You’re really upset as you feel that you had done nothing wrong and now you could face penalty points and if you’re convicted an almost definite hike in your insurance premium. If only you had taken the name of that man with the dog…







A WEEK LATER YOU SEE the elusive man again. He is working in a restaurant. He remembers you. You tell him what has happened to you, and he commiserates with you. You later discover his name and address.


You tell your lawyer and your lawyer applies to the court to have a witness summons (also known as a subpoena) issued. The summons is sent by the court, duly stamped, to your lawyer and your lawyer encloses a copy of the summons and sends it to the man’s address.


The man is now required to attend court to give evidence on your behalf. He may not like the fact that he has been subpoenaed and he may come to court in something of a bad mood, as he has had to take a day off work. Besides, court is the last place he’d rather be.


But you need him on your side because he is not only a witness, he is the best type of witness: an independent witness.

He is someone who is unknown to either you or the cyclist. In the eyes of the court he is perceived to be a more credible witness than someone travelling in the front passenger seat of your car.


That person may be perfectly honest and credible, but they are understandably biased: they may be your friend. There is usually no better witness than someone who is independent.


An independent witness cannot be accused of favouring one side or the other.


****


So if you find yourself involved in an accident and someone rushes to help you, maybe ask them for their name and address, so you can send them a Thank You card?


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