Witnesswhat. CHAPTER I. WITNESSES. a person who gives The term is also § 123. A WITNESS may be defined " 1. What persons are compellable to give evidence. 3. The grounds of suspicion of oral testimony. (a) "Witness" seems perfectly synonymous with the Latin "testis," the etymology of which is rather difficult to trace. Ainsworth in his Latin Dictionary says, etym. in obscuro: but Stephan. Thesaurus Ling. Lat. says it is "ab eo dictus quòd tueatur statum causæ vel quòd ante stet, quasi antestis, id est antestans." The "licet antestari" in Horace (Sat. lib. 1. 9) certainly gives some colour to this latter supposition, which is followed by most of the civilians. See Calvin's Lexicon Juridicum; Oldendorp's Lexicon Juris; Spiege lius's Lexicon Juris Civilis. The silence of our Law Dictionaries as to the derivation of "witness" is also rather striking. Sir Edward Coke says it comes from the Saxon verb "Weten (probably a mistake for 'witan'); Scire, quia de quibus sciunt testari debent." 4 Inst. 279. The derivations given by this author are rather unsafe; but both Johnson and Bailey in their dictionaries agree that "witness" is of Saxon origin: and we have still the verb "to wit," i. e. "to know;" although now only used in the phrase " to wit." SECTION I. WHAT PERSONS ARE COMPELLABLE TO GIVE EVIDENCE. § 124. THE law allows no excuse for withholding evi- Generally, all dence which is relevant to the matters in question be- persons compeljable to give fore its tribunals, and is not protected from disclosure evidence. on some principle of legal policy. A person therefore, who, without just cause, absents himself from a trial at which he has been duly summoned to attend as a witness; or who refuses to give evidence, or to answer questions which the court rules proper to be put, is liable to punishment for contempt (b). An exception Exceptionthe Sovereign. exists in the case of The Sovereign, against whom, of course, no compulsory process of any kind can be used (c). (b) The following case has been put in illustration of the universality of this rule:-" Were the Prince of Wales, the Archbishop of Canterbury, and the Lord High Chancellor, to be passing in the same coach, while a chimneysweeper and a barrow-woman were in dispute about a halfpenny worth of apples, and the chimneysweeper and the barrow-woman were to think proper to call upon them for their evidence, could they refuse it? No! most cer. tainly not."- Bentham's Draft of a Code for the Organization of the Judicial Establishment in France, A. D. 1790, chap. 1, tit. 1, p. 34. "We remember one case," says a writer in a legal periodical, prosecution for blasphemy, in which the defendant, by way of 66 a shewing the divided state of opi- M Privilege of witnesses in not answering certain questions. Questions tending to criminate or expose to forfeiture. § 125. Various matters privileged from disclosure on general grounds of public policy will be considered in another part of this work (d). But besides these, the law extends a personal privilege to witnesses of declining to answer particular questions, a privilege based on the principle of encouraging individuals to come forward with evidence in courts of justice, by protecting them as far as possible from injury or needless annoyance in consequence of so doing. It is therefore a settled rule that a witness is not to be compelled to criminate himself; i. e. he is not compellable to answer any question the answer to which would expose him to a criminal prosecution, or a prosecution for a penalty, or ecclesiastical censure, or a forfeiture, even of an estate or interest. "Nemo tenetur seipsum prodere" (e). This is laid down in all our books (ƒ), is the established practice of the courts, and is incidentally recognized by the stat. 46 Geo. III. c. 37 (g). The legislature has also in several cases acted on the principle, by either depriving the witness of the privilege, or by an act of indemnity compensating him for the loss of it (h). Nor is it necessary that the answer be such as would directly fix the witness with criminality, penalty, or forfeiture (i). But whether a question has a tendency to elicit a criminative answer must be judged of by the court (k), as otherwise under (d) Part 3, bk. 2, ch. 8. (f) Ph. & Am. Ev. 913, 914, (g) See that statute, infi a, § 127. (k) 2 Phill. Ev. 488, 10th Ed. respect was much discussed, the judges did not decide, as the case did not call for it, whether the mere declaration of a witness on oath, that he believed the answer would tend to criminate him, would or would not be sufficient to protect him from answering where sufficient other circumstances did not appear in the case to induce the judge to believe that the answer would tend to criminate the witness. In the pretence of not criminating himself a witness might easily evade giving any evidence. And this is sometimes no very easy matter to determine; for while it is impossible to say à priori that any imaginable fact can under no circumstances whatever become evidentiary either mediately or immediately of any other, still the requiring a witness to shew in what way an answer might criminate him would be in many cases a virtual denial of the privilege. Perhaps the true principle is that the court must see that the answer might supply a link in a chain of legal, as contradistinguished to indicative, evidence (1). In the absence of distinct authority, however, we speak with great diffidence on the subject. It used also to be considered that the witness was bound to claim his privilege at once; that if he began a criminative statement when he might have refused he was compellable to go on with it probably to prevent witnesses from converting the privilege given by law for their own protection into a means of serving one of the litigant parties, by setting up the privilege when their evidence began to tell against him. But in R. v. Garbett (m) a majority of the judges overruled the old notion, and held that the witness may claim his protection at any stage of the inquiry. § 126. Whether a witness is compellable to answer Questions tendquestions having a tendency to disgrace him; as for in- ing to disgrace. stance, whether he was ever in gaol on a criminal charge, or suffered some infamous punishment, is a great ques- recent case of Fisher v. Ronalds, Fisher v. Ronalds, 17 Jurist, 393; (m) 1 Den. C. C. 236; 2 Car. is indeed settled that he must answer if the question relates to matters in issue in the cause (n): the doubt is when it relates to collateral matters, and is only put in order to test his credit. The arguments pro and con. are thus stated in a work of authority (o): "There seems to be no reported case, in which this point has been solemnly determined; and, in the absence of all express authority, opinions have been much divided. The advocates for a compulsory power in cross-examination might argue that, as parties are frequently surprised by the appearance of a witness unknown to them, or, if known, entirely unexpected, without such power they would have no adequate means of ascertaining what credit is due to his testimony; that on the cross-examination of spies, informers, and accomplices, this power is more particularly necessary: and that if a witness may not be questioned as to his character at the moment of trial, the property and even the life of a party must often be endangered.-Those, on the other side, who maintain, that a witness is not compellable to answer such questions, may contend to the following effect. They say, the obligation to give evidence arises from the oath, which every witness takes; that by this oath he binds himself only to speak touching the matters in issue; and that such particular facts as these whether the witness has been in gaol for felony or suffered some infamous punishment, or the like, cannot form any part of the issue, as appears evident from this consideration, that the party, against whom the witness is called, would not be allowed to prove such particular facts by other witnesses. They may argue, further, that it would be an extreme grievance to a witness, to be compelled to disclose past transactions of his life, which may have been since forgotten, and to expose his character afresh to (n) 2 Phill. Ev. 494, 10th Ed.; (0) 2 Phill. Ev. 494, 10th Ed. Ph. & Am. Ev. 916, 917. |