A witness is someone who has firsthand knowledge about an event, or in the criminal justice systems usually a crime, through his or her senses (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 jurisdictions, it is compulsory to comply, to take an oath, and to tell the truth, under penalty of perjury.
Calling a witness
In a court proceeding, a witness may be called (requested to testify) by either the prosecution or the defense. 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.
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 (hearsay). 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 lineups, 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).
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[who?] note: the single most important factor contributing to wrongful conviction is eyewitness misidentification.
Credibility of a witness
Several factors affect witnesses' credibility. 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.
- Eyewitness identification
- Eyewitness memory
- Historical editorial
- Martyr (the word originally meant witness)
- Material witness
- United States Marshals Service
- Witness protection
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- ^ "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."
- ^ "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."
- ^ "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."
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