How to be a Witness
Note: This was a talk I delivered for a client that invited us to give a topic of our choice. The full talk was titled ‘How to create a paper trail and be a witness.’ I dealt with the latter topic and my colleague dealt with the former. The talk is for those that have never been a witness before. What is a witness? The Cambridge Dictionary defines a witness as, a person who sees an event, happening, especially a crime or accident. In law, it is a person who saw, heard, tasted, smelled, felt or thought something that is important for the narrative of a case in court. They are there to confirm what they perceived through their senses or went through their mind. It is useful to draw a distinction between fact and evidence. The Evidence Act 1950 (‘EA50’) defines fact as ‘any thing, state of things or relation of things capable of being perceived by the sense…’ So if you did not perceive it through your senses, it is not going to count as evidence. And it is very likely to be a fantasy i.e., your fantasy. A fact is what happened. Evidence is proof of a fact. There are only two kinds of evidence: oral evidence and documentary evidence. A witness can give both. I will discuss oral evidence first then documentary evidence. When a witness testifies about facts (for example, whey saw or heard), what the witness said is the evidence, more specifically, oral evidence. EA50 defines oral evidence as ‘all statements which the court permits or requires to be made before it by witnesses in relation to matters of fact under inquiry:’ An easier but inaccurate way to think about it is ‘Whatever he said he saw, heard, smelled, etc.’ The statutory definition says ‘all statements which the court permits or requires to be made before it …’ That means a witness cannot simply speak about anything. He can only speak what the court allows. So, it is important to appreciate that there are limits to what a witness can say in court. As mentioned, a witness can only give evidence of fact i.e. what he saw, heard, etc. Two implications arise from this. Firstly, a witness cannot give their opinion. They cannot give their opinion. They are only to speak about what they perceived through their senses and what they thought at the time. That is all. Only the court is entitled to have an opinion about the facts. And the only person that can give an opinion in court is an expert witness. Even then a court is not bound by it. A witness is not called to speak about what ifs and maybes, only what happened. Secondly, a witness is only allowed to speak about relevant facts. Those are facts that relate to the dispute and either prove or disprove those factual disputes. So if the court case relates to a car accident claim, what underwear the bystander witness was wearing at the time of the accident is irrelevant and will not be allowed. How each driver drove is relevant because it necessary to determine who was at fault. This is contained in section 5 EA50 which provides, Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such other facts are hereinafter declared to be relevant, and of no others. A witness can also give evidence through contracts, letters, memos, e-mails, etc. Such evidence is called documentary evidence. EA50 defines documentary evidence very widely. It includes anything on which symbols can be recorded. So a compact disc is documentary evidence. An audio recording is documentary evidence. An example to illustrate: X testifies in court that he saw Y go into a building. That Y went into a building is a fact. X’s testimony in court is the evidence to support that fact. X may also say that he has a picture of that; that picture is also evidence of Y going into a building. A fact can be supported by several pieces of evidence. The more evidence that can go to support a fact, the more credible that fact is. In summary, a witness is someone who testifies to what he saw, heard, felt, tasted, smelled or thought. He cannot give his opinion about what happened. He can only talk about what happened from his point of view and nothing else. The Role of a Witness The role of a witness is to give truthful evidence about what he saw or heard irrespective of which litigant calls him. An example. You are called as a witness for the Plaintiff. However, your evidence is generally helpful to the Plaintiff but there are some portions that are unhelpful. When you are called to court, you must give the helpful and unhelpful portions. Just because you are called by the Plaintiff, it does not mean you tell a story supportive of the Plaintiff’s case or weaken the evidence against the Plaintiff. As a witness, whether the evidence you gave is good or bad to the Plaintiff is not your problem. You have to tell it like it was, good and bad. A witness’s duty is to tell the truth in court. Your role as a witness is simple: tell the truth about what happened in relation to you. The purpose of giving truthful evidence is so the court can make a decision based on facts, not fantasy. It is of great importance to give truthful evidence because the judge was not there when the dispute took place. She does not know anything about the dispute other than through the witness, litigant, and lawyers. She does not know (and is not supposed to know) any of those that appear before her to keep the appearance of impartiality and independence. That means she does not know who is competent and credible and who isn’t. The only way she can get discover some sense
