Being a Witness (Script 216)

From Clicklaw Wikibooks

What is your role as a witness?

A witness helps our legal system by giving important information (called evidence) to a court. A witness “testifies” or tells the court what they know. Information from witnesses helps the court make the right decision. If you receive a document that says you have to be a witness in a trial, it’s because you have important information about a case. Either side in a court case can ask you to be a witness. If they do, you will receive a document called a "subpoena" or "summons to witness.” Read it carefully because it may require you to bring documents with you to court. It may be against the law to disobey this document.

What if you can’t go to court when the trial takes place?

On the subpoena or summons to witness is the name of the lawyer who is calling you to court. Phone the lawyer to find out why they want you as a witness and what documents you have to bring to court. Ask exactly when you have to go to court, and if necessary, try to arrange a better time.

If you are unable to personally attend in court and you have a valid reason for it, you may seek permission to give evidence by video. When you receive notice of the court date, you have to immediately speak with the lawyer who is calling you to court to make this arrangement. It is up to the judge hearing the case to decide whether to permit a witness to give evidence by video.

What if you think you should not be a witness?

If you have a good reason not to be a witness, you can ask a judge to cancel the subpoena or summons. For example, if you have been called to small claims court, a judge can cancel the summons if you are not really needed as a witness or if it would be a hardship to you to go to court. For other courts, you can call the court registry and explain that you want to ask a judge to cancel a subpoena.

If the subpoena or summons is not cancelled and you do not make other arrangements with the lawyer on when to give your testimony, then you must go to court. If you don't go, the lawyer can ask the judge to have you arrested and brought to court. A court can issue a “material witness” warrant for your arrest.

Many people don’t want to be a witness because they are afraid to answer certain questions. They think, based on American TV shows, that they can refuse to answer by “pleading the fifth amendment”. That’s wrong. Witnesses have to testify, or tell the court what they know, by answering questions from either side or the judge. If a witness refuses to answer a question, the judge can find them in contempt of court and jail them. But there are limits on how their information, called evidence, can be used. Generally, it cannot be used against them at a later hearing if they are charged with a crime.

You may want to get independent legal advice before going to court if you are worried about testifying about certain things.

Who are the people involved in court cases?

A civil case usually involves the private interests—such as property or money claims—of a person or company. It could also be a family case involving guardianship, parenting time and support of children. The side making the claim, or suing, is the “claimant.” The side responding to the claim, or defending, is the “respondent” or "defendant.” The notice you receive to be a witness in a civil case will show the names of both sides: the plaintiff and the respondent or defendant.

In a criminal case, the notice will list Regina and the name of the accused person. Regina means Queen in Latin and because the Queen is Canada's head of state; her name represents the community in a criminal trial. Crown Counsel, also called the prosecutor, is the lawyer acting for the community to make—or prosecute—the case against the accused person. Defense Counsel is the lawyer for the accused person.

How do you prepare for court?

It’s not hard to be a witness, but you have to prepare as follows:

  • Think about the event or events you saw. What happened first? What happened next? Try to remember details like dates, times, descriptions, actions, persons involved and exact words.
  • Keep any notes, photographs, and documents you have about the case.
  • Bring your notes, photographs and documents with you if you speak to a lawyer before the court date, and when you go to court. The Judge may let you look at your notes during the trial.
  • Go to the courthouse to watch what happens in court before your court date. Most trials are open to the public.

What do you do on the day of the trial?

  • Check the list of trials in the lobby of the courthouse to find your courtroom.
  • Wait outside the courtroom until you are called to go in. Do not discuss your evidence with other witnesses.
  • If you are a witness in a criminal trial, go to the Crown Counsel Office and tell them you are there. The subpoena will usually tell you to go to the Crown Counsel Office 30 minutes before the trial starts.
  • Be prepared to wait a while. A long wait can be inconvenient, but delays happen. You may want to ask a friend or relative to wait with you, or have a book or magazine to read.
  • Dress appropriately and treat everyone in the courtroom respectfully.

What happens in the courtroom?

  • Someone will call you when it is your turn to testify or give evidence. You then go to the witness box at the front of the courtroom.
  • The court clerk will ask you if you wish to swear a religious oath on the Bible or to affirm to tell the truth. Both options bind your conscience and require you to promise to tell the truth. If you believe in the Bible, you will swear a religious oath. If you don’t believe in the Bible, you will affirm to tell the truth. Both place the same obligation on you to tell the truth, with the same consequences for failing to do so.
  • Next, you will be asked to say your full name and spell your last name. Witnesses are not usually asked to state their addresses, but it can happen. If you are asked but don't want to give your address in public, tell the judge. You may sit down while giving your evidence.
  • The lawyer who called you as a witness will be the first to question you. Then the lawyer for the other side will "cross-examine" you by asking more questions. The Judge may also ask you questions. You have to answer the questions by giving evidence or testifying—see the next section for more detail.
  • You can call the judge "Sir" or "Madam.” "My Lord" or “My Lady” are the formal titles in Supreme Court. “Your Honour” is the title in Provincial Court.

What about when you actually give evidence, or testify?

  • As a witness, you have a right to speak in a language you know well. If you find it hard to speak or understand English, tell the lawyer or court staff when you receive notice of the trial so there is enough time to arrange for an interpreter.
  • Think about each question before you answer. Wait until the end of the question before starting to answer.
  • When you answer, speak to the judge, not to the person who asked the question.
  • If you do not understand a question, ask the person to repeat or explain it.
  • Take your time so you can give a complete answer.
  • Do not guess. If you are not sure about an answer, just say so. It's okay to say: "I don't know" or "I don't remember.”
  • Explain what you yourself directly observed, or what you did or said. You can show the judge any photographs that support your observations. However, do not talk about events that you did not directly witness, and do not give your opinion. Do not repeat the words someone else told you about events at which you were not present, unless you are asked to tell what you heard.
  • Do not speak at the same time as anyone else or interrupt the judge or lawyers.
  • Speak clearly and loudly, so that people in court can hear you and write down what you say. The microphone in front of you usually only records your voice—it does not make it louder.
  • After you give your evidence and the court excuses you, you can leave. You can also stay in the court and listen to the case if you like. If you remain in the courtroom, be respectful and remain quiet.

For help

[updated October 2018]

The above was last edited by John Blois.

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