Testimony

Etymology[edit]

The words "testimony" and "testify" both derive from the Latin word testis, referring to the notion of a disinterested third-party witness.^[1][2]

In the law, testimony is a form of evidence in which a witness makes a "solemn declaration or affirmation ... for the purpose of establishing or proving some fact".^[3] According to Bryan A. Garner, the editor of Black's Law Dictionary, the word "testimony" is properly used as a mass noun (that is, always uninflected regardless of number), and not a count noun.^[4]


Testimony may be oral or written, and it is usually made by oath or affirmation under penalty of perjury. Historically, to be admissible in court and to ensure maximum reliability and validity, written testimony presented in the form of an affidavit (i.e., the witness would not be appearing in court at the hearing at which the affidavit was considered as evidence) was usually witnessed by another person (in many common law jurisdictions, a notary public) who had to also swear to or affirm its authenticity, also under penalty of perjury. In 1976, the United States Congress enacted a statute allowing for the use of an unsworn declaration under penalty of perjury in lieu of an affidavit in federal courts.^[5] In other words, the declarant's signature together with a statement that they were making the unsworn declaration under penalty of perjury were deemed as a matter of law to be sufficiently solemn to remind the declarant of their duty to speak the truth, the whole truth, and nothing but the truth (meaning notarization was no longer required).^[5] As of 2006, about 20 states also had similar statutes allowing the use of unsworn declarations in their state courts.^[5]


Unless a witness is testifying as an expert witness, testimony in the form of opinions or inferences is generally limited to those opinions or inferences that are rationally based on the perceptions of the witness and are helpful to a clear understanding of the witness' testimony.


Legitimate expert witnesses with a genuine understanding of legal process and the inherent dangers of false or misleading testimony refrain from making statements of fact. They also recognize that they are in fact not witnesses to an alleged crime or other event in any way, shape or form. Their expertise is in the examination of evidence or relevant facts in the case. They should make no firm judgement or claim or accusation about any aspect of the case outside their narrow range of expertise. They also should not allege any fact they can not immediately and credibly prove scientifically.


For example, a hair sample from a crime scene entered as evidence by the prosecution should be described by an expert witness as "consistent with" a sample collected from the defendant, rather than being described as a "match". A wide range of factors make it physically impossible to prove for certain that two hair or tissue samples came from a common source.


Having not actually witnessed the defendant at the scene, the expert witness can not state for a fact that the sample is a match to the defendant, particularly when the samples were collected at different times and different places by different collectors using different collection methods. Ultimately, the testimony of expert witnesses is regarded as supportive of evidence rather than evidence in and of itself, and a good defense attorney will point out that the expert witness is not in fact a witness to anything, but rather an observer.


When a witness is asked a question, the opposing attorney can raise an objection, which is a legal move to disallow or prevent an improper question to others, preferably before the witness answers, and mentioning one of the standard reasons, including:


There may also be an objection to the answer, including:


Up until the mid-20th century, in much of the United States, an attorney often had to follow an objection with an exception to preserve the issue for appeal. If an attorney failed to "take an exception" immediately after the court's ruling on the objection, he waived his client's right to appeal the issue. Exceptions have since been abolished, due to the widespread recognition that forcing lawyers to take them was a waste of time.


When a party uses the testimony of a witness to show proof, the opposing party often attempts to impeach the witness. This may be done using cross-examination, calling into question the witness's competence, or by attacking the character or habit of the witness. So, for example, if a witness testifies that he remembers seeing a person at 2:00 pm on a Tuesday and his habit is to be at his desk job on Tuesday, then the opposing party would try to impeach his testimony related to that event.