Page:EB1911 - Volume 28.djvu/782

Rh vogatoires are freely used to obtain written depositions for the purpose of criminal trials, and are allowed to be executed in England. In England the viva voce examination of witnesses is not conducted by the presiding judge but by the advocates in the cause, and the witness is called not by the court but by the party. The court, however, has full power to call witnesses not called by either party, or to examine witnesses on questions not inquired into by the advocates of either party.

The examination of a witness by the advocate of the side for which he is called is termed “examination-in-chief”; when by the advocate of the other party it is called “cross-examination." The judge, and by his leave the jurors, are free to question the witness. But the main duty of the judge is not himself to interrogate, the witness but to see that neither side asks irrelevant or vexatious questions (see R.S.C. 1883, order 36, rule 38).

As a general rule competent witnesses are also compellable, except the king; i.e. they can be required to attend the court and to take

the oath and to answer all relevant questions. But by the statutes as to evidence in criminal cases the accused is not a compellable witness, nor in many specified cases is the husband or wife of the accused. The attendance of witnesses is secured in the following manner: In civil actions in the High Court of Justice by writ of subpoena personally served with tender of the necessary journey money (see ); in civil actions in county courts by witness summons; in criminal proceedings before the High Court of Justice or a court of assize or quarter sessions by crown office subpoena or by recognizance entered into before justices when the accused was committed for trial. In proceedings before justices out of quarter sessions the attendance of a witness is secured by witness summons or if need be by arrest on warrant of a justice. In criminal cases tender of expenses is not essential. Where a witness refuses to attend or to be sworn or to answer, he is summarily punishable for contempt if the court is one of record, and liable to imprisonment if the proceedings are before a court of summary jurisdiction. Various acts of parliament deal with compelling appearance before committees of parliament, courts martial and other tribunals of a special nature. The attendance of a witness who is in custody is obtained by writ of habeas corpus ad testificandum or by judge's order in certain cases, or by order of the home secretary under the Prison Act 1898. A witness's expenses in a civil case are payable by the party calling him and are included in the costs of the cause. Scales of allowances are scheduled to the Rules of the Supreme Court and the County Court Rules. Failure of a witness duly summoned to attend in a civil action exposes him to liability in respect of pecuniary damage done to the party by his absence. In criminal cases the witness's expenses fall on the party calling him, but in prosecutions for felony and many misdemeanours the expenses are paid out of the local rate in accordance with scales fixed by the home secretary (see ).

A witness is privileged from arrest on civil process while he is in attendance on a court of justice or is on his way to or from the court (eundo, morando et redeundo). The privilege does not exempt from arrest on a criminal charge. All witnesses except the defendant in a criminal case are entitled to object to answer any question put to them in court on the ground that the answer might tend to criminate them or to expose them to a penalty or forfeiture, or where the question is as to the fact of adultery. The defendant in a criminal case if sworn as a witness is not entitled to refuse to answer questions tending to prove him guilty of the offence for which he is being tried, and a witness cannot refuse to answer a question on the ground that the answer might involve admission of a debt or subject him to a civil action (1806, c. 37).

Witnesses are also privileged from making disclosure of matters known to them in the following cases: (1) Public officers, as to matters coming within their official cognizance if they can swear that it is inconsistent with the public service to disclose them. This applies to state secrets, and extends to jurors as to what passed among them, and the public prosecutor; and the police on this ground refuse to disclose the sources of information leading to prosecutions for crime. (2) Lawyers, as to communications between themselves and their clients, unless the communications are in themselves part of a criminal or unlawful enterprise. English law declines to extend professional privilege to communications between doctor and patient or priest and penitent. In most European countries, and in many British colonies, medical privilege is recognized as to matters communicated to the doctor or even discovered by him in attending the patient. In Catholic countries confessions to a priest are sacred. In England it is not now the practice to insist on evidence by a minister of religion as to matters confessed to him as such. (3) Communications between husband and wife during the marriage have always been privileged from disclosure, and this privilege is preserved by modern legislation (1853, c. 83, s. 3; 1898, c. 36, s. 1. d.).

It is correlative to the obligation of a witness to testify that no action may be brought against him under English law for any statement however defamatory, however irrelevant, and however malicious, made by him in the course of his testimony in judicial proceedings (Seaman v. Netherclift, 1876, 1 C.P.D. 540; Hodson v. Pare, 1899, 1 Q.B. 455). The only remedy, if the statement is deliberately false, is to prosecute him for perjury.

On charges of treason lists of the witnesses to be called by the crown must be supplied to the accused. In ordinary indictable cases there is no such obligation, but the names of the witnesses for the crown are written on the back of the indictment; and where the witnesses have not been examined at the preliminary inquiry it is now established practice to require notice to the accused of their names, and a précis of what they will be called to prove. In Scotland in all indictable cases a list of witnesses must be served on the accused (the panel) (1887, c. 35), and the same rule is observed in France. In the United States the same course is adopted where a capital offence is charged.

Scotland.—The rules as to competence of witnesses have been made substantially the same as in England by modern legislation (1837, c. 37, s. 9; 1840, c. 59, s. 1; 1852, c. 27; 1874, c. 64). Their attendance is procured by citation. Witnesses to produce documents are called “havers.”

The evidence of witnesses is taken on oath (in the Scots form) or affirmation. Their privileges are substantially the same as in England, but they may be sued for irrelevant defamatory statements volunteered during their evidence, the law of Scotland on this point being the same as under the Dutch Roman law (see Nathan, Common Law of S. Africa, § 1593).

British Possessions.—In India the law as to witnesses and evidence is consolidated in the Indian Evidence Act 1872, which contains in code form the substance of the English law on the subject. The test of competency is understanding: “all persons shall be competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers to these questions by tender years, extreme old age, disease whether of body or mind, or of any other cause of the same kind. A lunatic is not incompetent to testify unless he is prevented by his lunacy from understanding the questions put to him and giving rational answers to them” (s. 118). In, criminal proceedings the defendant is not, but the husband or wife of the defendant is, competent (s. 120). Under the Indian Oaths Act (x. of 1873) Hindus or Mahommedans or persons objecting to make an oath may affirm (s. 6). The court may accept an oath or solemn affirmation in any form common amongst or held as binding by persons of the persuasion or religion to which the witness belongs, unless it is repugnant to justice or decency (s. 8). In the rest of the British empire the law as to witnesses does not differ materially from that of England, but has in most colonies been incorporated in statutes or codes (e.g. British Guiana, Ord. No. 20 of 1893). Colonial legislation has provided for the evidence of accused persons under conditions similar to but not identical with those prevailing in England. In colonies with a large native population there is from time to time a tendency to reject the evidence of coloured witnesses against Europeans.

United States.—The rules of the United States as to witnesses have a common origin with those of England and are on the same lines, but in most states depend on the particular provisions of state codes. The number of witnesses necessary for the attestation of a marriage or will is not uniform in all the states. While slavery was lawful, the evidence of slaves (and in some states that of free persons of colour) was not received for or against whites. These rules appear not to have been absolutely overridden by the 14th amendment to the Federal Constitution, and the laws of Delaware and Nebraska discriminate against free persons of colour. Incompetency by conviction of perjury or subornation is retained in federal laws (Rev. Stat. § 5392) and in those of a few states (see Wigmore, p. 654 n).

European Countries.—In the law of most European states the Roman law as to the competency and examination of witnesses is more closely followed than in countries whose law is based on that of England. In criminal cases the prisoner is not only competent but necessary, and the whole system of procedure is inquisitorial, beginning with interrogation of the accused, not by the state prosecutor, but by the president of the court. In view of this system it is not surprising that the English conception of the rules of proof and relevancy, known as the law of evidence, is not accepted; since under the continental system the person who puts the questions is the person who has to determine their relevancy. In France consanguinity and affinity to the parties disqualify a witness in civil cases, and he is also asked whether he is employé or servant of the parties (Code Civil, Proc. 262, 268). In criminal cases a like inquiry is made. Consanguinity and affinity in the case of lineals may be made ground of disqualification if the objection is taken, as may pecuniary interest in the penalty (Code d'instr. Crim. 75, 322). Husband and wife cannot testify for or against each other even after divorce (ib.). In France disability to be a witness may be inflicted as part of the punishment on conviction for certain crimes (Code Penal, art. 42).

 WITNEY, a market town in the Woodstock parliamentary division of Oxfordshire, England, on the river Windrush, a tributary of the Thames, 75½ m. W.N.W. of London on the East Gloucestershire branch of the Great Western railway. Pop. of urban district (1901) 3574. The urban district was extended in 1898 to include portions of the scattered villages of Hailey and