Credible witness

Credible witness

In the law of evidence, a credible witness is a person making testimony in a court or other tribunal, or acting otherwise as a witness, whose credibility is unimpeachable. A witness may have more or less credibility, or no credibility at all. In the common law system, the term 'credible witness' may be used generally, to refer to testimony, or for the witnessing of certain documents.

Several factors affect witnesses' credibility. A credible witness is "competent to give evidence, and is worthy of belief."[1] 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.

Contents

Testifying in court

In a wide variety of cases that use the rules of evidence, testimony must be given by credible witnesses.

In Scottish law, a credible witness is one "whose credibility commends itself to the presiding magistrate ... the trustworthiness" of whom is good.[2]

In English law, a credible witness is one who is not "speaking from hearsay."[3] In English:

Credible seems here to be used in the way that people have employed it ever since it appeared in the English language in the fourteenth century: of something that is convincing or is capable of being believed. (It came from Latin credibilis, worthy of being believed, from the verb credere, to believe.)
—Michael Quinion (italics in original)[4]

In the United States, such a witness is "more than likely to be true based on his/her experience, knowledge, training and appearance of honesty and forthrightness...."[5] Some factors for determining the credibility of testimony in U.S. courts include: (1) the witness had personal knowledge, (2) he or she was actually present at the scene, (3) the witness paid attention at the scene, and (4) he or she told the whole truth.[1] The probative value of a credible witness is not a required element in any criminal case.[6] However, credibility is always a factor in civil cases.[7] The number of witnesses does not matter for credibility: "The question for the jury is not which side has more witnesses, but what testimony they believe."[8] Only the "quality or power" of believability matters.[9]

In Australian law, the reliability of every witness in a criminal case must be taken into account.[10]

History

Contesting the credibility of so-called "expert" witnesses rose into more common practice in the 1860's and 1870's.[11][12] As a more recent 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.[13]

Witnessing of wills and documents

Credible witnesses must be used to give meaning or existence to certain types of documents, such as a last will and testament, codicil, apostille, deposition, interrogatories, certified document, or government record.

For example, in most common law jurisdictions, two or three witnesses must sign their names to the Will at the attestation clause below the testimonium clause that is executed by the testator. The exact number of witnesses depend on the state or local law. Under the English Statute of Wills of 1540, it was three witnesses. Under modern New York law, only two witnesses are required.[14] In Canadian law, a credible witness to a Will "means a witness not incapacitated by mental inbecility (sic), interest or crime."[15]

For authentication of a document, a credible witness is needed whose major duty is identify, to a notary public, the signer of the document.[16]

See also

References

  • John Beecroft Saunders, ed., Words and Phrases legally defined, Vol. 1, (Butterworth & Co. Longdon & Edinburgh 1988) ISBN 0-406-08041-0.

Notes

  1. ^ a b 'Lectric Law Library website definition of "credible witness". Last accessed October 22, 2009.
  2. ^ Words and Phrases legally defined, Vol. 1, pp. 373-374, citing Manson v. Macleod, 1918 SC(J) 60 at 66.
  3. ^ Words and Phrases legally defined, Vol. 1, p. 374, citing R. v. Noakes, 1 KB 581 (CCA 1917).
  4. ^ Michael Quinion,"Credible", found at World Wide Words website. Accessed October 26, 2009.
  5. ^ Entry in the Legal Dictionary. Accessed October 22, 2009.
  6. ^ United States v. Welsh, 774 F.2d 670 (4th Cir. 1985), found at US Courts website. Accessed October 26, 2009.
  7. ^ See Federal Rules of Civil Procedure Rule 11 (for frivolous motions) and Rule 32 ("Using depositions in Civil Proceedings").
  8. ^ West's Encyclopedia of American Law (Cengage Learning 2005) found at West's Encyclopedia of American Law online. Access date October 25, 2009.
  9. ^ United States v. Welsh, op. cite, 774 F.2d 670 (4th Cir. 1985), found at US Courts website, citing Webster's 3rd New International Dictionary, p. 532, and Burleson v. State, 131 Tex.Cr.R. 576, 100 S.W.2d 1019, 1020 (1936).
  10. ^ "Separate Consideration of Charges - Single Defendant," Model jury charges for a criminal case, Queensland, p. 1, footnote 2, found at Queensland Courts Government website, citing Markuleski [2001] NSW CCA 290; cf. Doggett [2001] HCA 46 [55]; M [2001] QCA 458 [17]-[22]; S [2002] QCA 167 [8], [29]. Accessed October 26, 2009.
  11. ^ "Law and Police". Otago Daily Times. 18 September 1865. http://paperspast.natlib.govt.nz/cgi-bin/paperspast?a=d&d=ODT18650918.2.23. Retrieved 30 October 2011. "A strong effort was made to impeach her credibility as a witness... it is competent to prove that the witness is an expert and not a mere pretender." 
  12. ^ "Last Day of the Scandal Trial". Ithaca Democrat. 8 July 1875. http://news.google.com/newspapers?id=xWNFAAAAIBAJ&sjid=4bsMAAAAIBAJ&pg=4802,3268733. Retrieved 30 October 2011. "There was an irreconcilable difference of opinion as to the credibility of witnesses on each side." 
  13. ^ "Lawyers question evidence in Levy case". AP Worldstream. 11 April 2009. http://www.highbeam.com/doc/1A1-D97GEVGO0.html. Retrieved 30 October 2011. ""It's long on witnesses and short on direct evidence that Guandique had anything to do with this," said David Benowitz, a criminal defense attorney who once worked as a public defender in the District of Columbia." 
  14. ^ N.Y. EPTL § 3-2.1 (a) (4), found at York State Assembly government website, go to "EPT" (Estates Powers and Trusts Law), then Article 3, Part 2, and finally § 3-2.1.
  15. ^ Words and Phrases legally defined, Vol. 1, p. 374, citing Ryan v. Devereaux, 26 UCR 100 at 107 (Ont. CA 1866).
  16. ^ San Diego Notary website. Accessed October 1, 2009.

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