Witness Testimony

Introduction to Judicial Witness

An oath is required of every person called to testify at any kind of a judicial proceeding. Not every person may be competent to testify as a witness; a person of unsound mind, for example, may not be a witness. A person convicted of a crime, however, is considered a competent witness. A minor may be permitted by the court to testify if the court is convinced that the child understands the nature of an oath. Someone with an interest in the outcome of a civil action involving a deceased person cannot testify as to personal transactions or communications with the deceased.

The attendance of a witness at a judicial or quasi-judicial proceeding is compelled by the issuance of a subpoena; only witnesses within the jurisdiction of the court may be subpoenaed. In the U.S., however, most states have agreed on a mutual basis to honor subpoenas issued in other jurisdictions.

Witnesses may not be compelled to give evidence against themselves; a witness may refuse to answer any questions that might serve to incriminate him or her. When granted immunity, however, the witness may be compelled to answer; in such a case the answer may not be used to convict the witness of a crime. A person called as a witness cannot be compelled to testify concerning a privileged communication, such as information given to a lawyer by a client, or a confidential communication, such as that between a husband and a wife. In some jurisdictions, in a criminal prosecution, the uncorroborated testimony of an accomplice will not justify a conviction.

The examination of a witness is said to be a direct examination when the witness is testifying on behalf of the party that has requested the testimony or has subpoenaed the witness; the examination is said to be a cross-examination when the witness is questioned by the attorney for the opposing party.” [1]

Witnesses in the Convention on the Taking of Evidence Abroad in Civil or Commercial Matters

Article 10 – Compulsion against a witness

Article 10 is adapted from article 8(1) of the draft Convention, and provides for the application of compulsion against an unwilling witness who will not appear or who appears but will not give evidence. The application of compulsion is not discretionary with the executing authority. Article 10 uses the mandatory ‘shall’. The only limitations are:

• the compulsion shall be ‘appropriate’, and
• it shall correspond to the compulsion which would be granted under the same circumstances in a domestic proceeding.

The appropriateness of the compulsion is self-explanatory. To illustrate, it may require the witness to answer a particular question; or it may require him to produce certain documents or tangible objects for inspection; or it may require him to permit entry on real property for inspection. Whether compulsion will be granted in a particular situation will be determined by reference to the internal law of the State of execution. If, under the circumstances facing the executing tribunal, it would grant compulsion in a domestic proceeding pending before it, either on the request of a party to the proceeding or on order of the tribunal itself, compulsion will be applied in the execution of the Letter of Request.

If the grant of compulsion in a domestic proceeding would be discretionary with the tribunal, it will be equally discretionary with respect to the execution of the Letter. If the grant of compulsion would be limited or partial in the domestic proceeding, it will be equally limited or partial with respect to the execution of the Letter. 116. The requesting authority cannot ask the executing authority to grant compulsion in the execution of the Letter to any extent greater than the compulsion which would be applied, under the same circumstances, in a domestic proceeding in the State of execution.

Article 8(1) of the draft Convention contained a final sentence which excluded mandatory compulsion of the parties to the action. This was included to take care of the French practice, under which a party to an action cannot compel testimony from his adversary. This sentence was ultimately deleted from article 10 as tautological. Since the compulsion is, by definition, limited to the local practice of the State of execution, compulsion in France is necessarily limited by the French domestic rule; and if that rule excludes compulsion against a party in domestic actions, it will automatically exclude compulsion against parties in the execution of a Letter of Request.[2]

Articles 11, 27(b), 28(d) – Privileges and duties of witnesses

Article 9(1)(a) of the draft Convention proposed to recognize any privilege of a witness not to testify conferred by either the State of origin or the State of execution. Article 9(1)(b) also sought to recognize the very difficult questions of ‘third State’ privileges, exemplified by the illustrations of the Swiss banker and the French doctor contained in the Report to the draft Convention.

Article 11 modified the first of these principles as to the privileges of the State of origin, and modified the second from a definite recognition to an optional recognition by declaration. 122. Article 11(1)(a) specifically recognizes any privilege or duty of the witness not to testify given under the law of the State of execution. This conforms the execution of the Letter to a domestic proceeding.

Article 11(1)(b) specifically recognizes any privilege or duty given by the law of the State of origin, but only if the issuing authority takes an affirmative step to have it recognized. There are two ways in which the issuing authority can do this:

• It may include a statement of the privilege or duty in the Letter itself. There would be no purpose in including this in the Letter except the purpose of having the State of execution recognize it.
• If the issuing authority says nothing about the privilege in the Letter, the executing authority will not be informed about the ‘foreign law’ of privilege. However, the witness may, during the proceedings, make a claim of ‘foreign’ privilege under the law of the State of origin.

At this point the executing tribunal has the option of ignoring the claim of privilege or of seeking help from the issuing authority. If the executing authority requests advice from the issuing authority, and if the issuing authority responds and specifies the privilege or duty, then the executing authority will recognize it to the extent specified by the issuing authority.

The witness can therefore be deprived of his privilege under the law of the State of origin if:

• the Letter of Request does not specify it and the executing authority refuses to recognize it; or if
• the executing authority asks the issuing authority for a specification of the privilege and the issuing authority declines to reply.

This is admittedly a difficult position for the witness. The moving party in the State of origin naturally wishes the maximum of testimony from the witness and he will not go out of his way to have the issuing authority include any restrictive privileges which would reduce the scope of the witness’s evidence. In many instances, the opposing party in the State of origin may be interested in minimizing the testimony of the witness and may ask that the Letters include the specification of the privilege. But in many other instances, both parties to the litigation in the State of origin may be equally interested in maximum testimony from the witness and neither will mention the privilege question to the issuing authority. In these cases, the witness has no one to represent his interests in the State of origin. He is confined to seeking help from the executing authority, by claiming his privilege and asking the executing authority to seek a certification from the State of origin.

The problem which faced Commission III was the problem of the ‘foreign law’ aspects and the risk that the execution of the Letters could be frustrated by claims of ‘foreign’ privileges unknown in the State of execution. This would lead to endless arguments over the ‘foreign law’ with which the executing authority would be unfamiliar. This risk was minimized by passing the problem back to the State of origin and confining the ‘foreign’ privilege within such limits as the issuing authority might choose to certify.

It was not possible to find any solution which would fully protect the witness and completely avoid ‘foreign law’ frustrations at the same time. 128. Article 11(2) deals with the ‘third State’ privileges. Here again a compromise was reached between the full protection of the witness under foreign law and the frustration of the execution of the Letters because of claims under foreign law.

Commission III acted on the principle that when a witness left his home State and travelled abroad, he left behind him the protection of the privileges granted by his own law. He could not demand that a foreign State recognize them obligatorily. 130. There is no mandatory requirement in article 11 to recognize any third State privilege. It is entirely optional with each State dependent upon the filing of a declaration by the State. If it files a declaration, it will thereby agree to respect third State privileges to the extent specified in the declaration.

All of article 11, including the provisions for the recognition of third State privileges, is subject to the effect of articles 27(b), 28(a) and 32. Side agreements may be made between States, or conventions may be concluded between them, or internal law or practice may govern the whole field of privileges and duties of witnesses. 132. The agreements and conventions are, of course, effective only as between the Parties thereto, whereas the internal law and practice will normally be universal in its effect.[3]

Articles 18, 27(b), 28(g), 32, 33(1) – Compelling a witness to testify

With respect to compulsion against a witness, to require him to appear before a consul or a commissioner, article 18 states a single rule applicable to both. This combines articles 16 and 19 of the draft Convention, which treated the consul and the commissioner in separate Chapters.

The rule is simple and unambiguous. If a consul or commissioner is authorized to take the evidence of a particular witness, under article 15, 16 or 17, he may be allowed to ask the appropriate authority of the State of execution for assistance to compel the witness to appear and give the evidence.

The word ‘may’ is emphasized in the preceding paragraph because a State may decline to permit the consul or commissioner even to apply for compulsion. As article 18(1) is phrased, the State of execution must have filed a declaration giving the consul or commissioner permission to apply for compulsion against the witness. The State of execution must also designate the authority to whom the application is to be directed.

Of course, the permission to apply may be contained in a side agreement under article 28(g) or in a side convention under article 32 or in the internal law or practice of the State of execution under article 27(b). The essence of the rule is that the permission to apply for compulsion must be found somewhere. Further, the State of execution, in its declaration granting permission to apply, may impose any conditions which it deems fit to the permission to apply. In addition, article 19 provides that, if the consul’s or commissioner’s application is granted, the approval may be subject to any conditions which may be imposed.

In effect, article 18(1) grants nothing. It simply makes it easy for States to be more liberal if they so desire (see the discussion on the draft Convention articles 16 and 19). It merely recognizes the possibility that the consul or commissioner may be allowed, under certain circumstances, to apply to the appropriate tribunal in the State of execution for compulsion against an unwilling witness. It does not guarantee that he may be allowed to apply. Nor does it guarantee that the application will be granted, in whole or in part, conditionally or unconditionally. The State of execution has unlimited power and control over the grant of compulsion in favour of a consul or commissioner, and nothing in article 18(1) is intended to modify that unlimited power and control.

Article 18(2) follows the final sentence of article 16 of the draft Convention. It provides that if the application for compulsion is granted, the measures of compulsion to be applied shall be ‘appropriate’. This has a double meaning. In the first place, the 21 compulsion must be ‘appropriate’ to the nature of the evidentiary enquiry, i.e. appear on a certain day, or answer certain questions, or produce a certain document, or furnish access to certain real estate, etc. In the second place, it must be ‘appropriate’ to the terms and conditions which are an inherent part of the grant of compulsion, and which have been authorized either in the declaration filed under article 18(1), or in the grant itself under article 19, or in an outstanding side agreement or convention, or under the law or practice of the State of execution. The extent of the compulsion could hardly be ‘appropriate’ if it violated these principles.

Further, article 18(2) provides that the compulsion must conform to the domestic law of the State of execution for use in internal proceedings. This is self-explanatory; no court would grant a type of compulsion in favour of a foreign consul or commissioner which it would not grant to a party in a domestic action pending before it. 195. Finally, article 18 is subject to reservation under article 33(1) and all compulsion may thereby be excluded.[4]

Resources

Notes and References

1. Information about Witness Judicial Witness in the Encarta Online Encyclopedia
2. Ph.W. Amram, Explanatory Report on the 1970 Hague Evidence Convention (1970); Offprint from the Acts and Documents of the Eleventh Session (1968), tome IV, Taking of evidence abroad.
3. Id.
4. Id.

Guide to Witness Judicial Witness