WITNESS

(A) A person who has witnessed something that is relevant and has probative value in determining the outcome of the case. A witness is a person who testifies under oath, either at a deposition or a trial, and provides a direct recollection of events or expert testimony about a subject. When witnessing another person singing a document the witness may sign the document and “attest” to the signature of the document author being true. (B) One who, being sworn or affirmed, according to law, deposes as to his knowledge of facts in issue between the parties in a cause. 2. 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. 3. 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 prejudice 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. Vide Circumstances. 4. 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. 5. 1. 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. Vide Circumstances; Competency; Credibility. 6. 11. 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. 7. Section 1. 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. 8. 1. 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. 9. 2. 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. 11. Section 3. 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, 12. 1. 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. 13. 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. 14. 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. 15. 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. 18. 2. 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 necessary for conducting the cause, and not any extraneous or impertinent matter; 3 Johns. Cas. 198; 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; 1 Dall. 241; or he expects to receive a larger fee from his client if the latter succeeds. 20. 4. Jurors. A juror is not competent to prove his own or the conduct of his fellow jurors to impeach a verdict they have rendered. 5 Conn. R. 348. See Coxe, R. 166, and article Grand Jury. 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 23. Section 4. 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. Willes’ R. 550. Vide the article Infidel where the subject is more fully examined and Atheist; Future state. 24. Section 5. Infamy is a disqualification while it remains. 25. III. 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. 26. 1. 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. 27. 2. In criminal cages, there are several instances where two witnesses at least are required. The constitution of the United States, art. 3, s. 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. 28. 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. <<>> ((verb)) To subscribe one’s name to a deed, will, or other document, for the pur-pose of attesting its authenticity, and proving its execution, if required, by bearing witness thereto. ((noun)) In the primary sense of the word, a witness is a person who has knowledge of an event. As the most direct mode of acquiring knowledge of an event is by seeing it, “witness” has acquired the sense of a person who is present at and observes a transaction. A witness is a person whose declaration under oath (or affirmation) is received as evidence for any purpose, whether such declaration be made on oral examination or by deposition or affidavit. One who is called upon to be present at a transaction, as a wedding, or the making of a will, that he may thereafter, if necessary, testify to the transaction. In conveyancing. One who sees the Execution of an instrument, and subscribes it, for the purpose of confirming its authenticity by his testimony. Adverse witness. A witness whose mind discloses a bias hostile to the party examining him; not a witness whose evidence, being honestly given, is adverse to the case of the examinant.