Being a witness
Who is competent to be a witness?
Your competence as a witness is about your ability to provide information to the court. You are considered competent if you can take the oath or affirmation and give a coherent account of events. The general rule in Irish law is that everyone is a competent witness. These are the exceptions:
The court must be satisfied that the child is capable of giving an intelligible account of what they witnessed. Children under 14 do not have to make an oath or affirmation, but the child is guilty of an offence if they knowingly give evidence which is false or untrue.
If a witness is under 14 years of age the judge may ask to talk to them in private before they give evidence. This is in order to assess the child's ability to give an intelligible account of events. Read more about witnesses under the age of 18.
People with mental disabilities
People with mental disabilities are dealt with in the same way as children under 14 years of age. If a court is satisfied that a person with a mental disability can give an intelligible account of events, then the court can take evidence from the person without the oath. This provision is set out under the Criminal Evidence Act 1992 and the Children Act 1997.
Who can be forced to be a witness?
Generally, anyone who is competent to be a witness can be forced by the court to give evidence in a criminal or civil case. There are a number of exceptions to this rule:
If you are the accused in a criminal case you cannot be forced to give evidence in your defence. If you decide not to give evidence in the case, the prosecution cannot comment on this to the jury.
If you do decide to give evidence in your trial, then you can be cross-examined by the prosecution. You cannot refuse to answer these questions. The prosecution cannot ask you questions about your previous bad character unless you have:
- Introduced evidence of your own good character or
- Questioned the character of any prosecution witness or
- Given evidence in your own defence against a co-accused (see below)
Sometimes two or more people can be charged with a criminal offence and they are tried at the same time. In this situation, the people being tried are called the "co-accused". You cannot be forced to give evidence against a co-accused if you are both being tried in the same proceedings. However, if the prosecution refuses to offer any evidence against you and you are found not guilty, then you can be forced to testify against a co-accused.
The spouse of the accused
If you are the spouse of the accused you can only be forced to give evidence for the defence or the prosecution if:
- The offence in question is of violence or the threat of violence to you, your child or the accused’s child, or a person under 17 (includes an adopted child or a child for whom you are acting ‘in loco parentis’)
- The offence is a sexual offence in relation to your child, the accused’s child or a person under 17 (includes an adopted child or a child for whom you are acting ‘in loco parentis’)
- The offence consists of trying to or helping to commit either of the two offences above
Former spouses of the accused
You are a former spouse if you are divorced from the accused, or if you have a judicial separation or a separation agreement with the accused. If you are a former spouse you can be forced to testify for the defence or the prosecution about offences that were committed since your separation.
However, you cannot be forced to give evidence against the accused about offences that were committed when you were still married, unless:
- The offence in question is of violence or the threat of violence to you, your child or the accused’s child, or a person under 17 (includes an adopted child or a child for whom you are acting 'in loco parentis’)
- The offence is a sexual offence in relation to your child, the accused’s child or a person under 17 (includes an adopted child or a child for whom you are acting 'in loco parentis’)
- The offence consists of trying to or helping to commit either of the two offences above.
Diplomatic agents cannot be forced to give evidence in any criminal or civil case.
How you are called as a witness
Before the trial begins, you may be contacted by legal representatives for the person who wants to call you as a witness. They may want to get a written statement from you detailing what happened. They may also want to meet with you to discuss this.
The summons or subpoena
If someone in a court case wants to call you as a witness, you will get a witness summons or a subpoena. This is a simple court form that sets out:
- The name of the case
- The date and time that the case will be heard
- The court you must attend
If you get a summons or subpoena, you must attend court on the date listed on the form. If you fail to do so, you can be imprisoned for contempt of court. You cannot refuse to attend court as a witness because you say you are intimidated by one of the people in the case or because you are afraid to give evidence.
You may get a subpoena duces tecum. This type of subpoena means that as well as having to attend court, you must bring along the documents listed in the subpoena.
Taking time off work to be a witness
If you have to take time off work to go to court, you will not be paid for the time you are away from work. However, you may be entitled to witness expenses. If your employer wants you to take this time off work as annual leave, the normal conditions for taking annual leave apply.
Being a witness in court
Taking the stand
At the trial, you may be one of a number of witnesses who are going to give evidence. Normally you will wait in the court and watch the trial until it is your turn to give evidence. Sometimes you may be asked to leave the court and if that happens, you will be told when to return.
When it is your turn to give evidence, the solicitor or barrister for the person who called you as a witness will stand up and name you as the next witness. You walk up to the front of the court and go into the witness box.
You can take an oath or affirmation. To take an oath, you stand in the witness box and the court registrar hands you a Bible or the holy text for your religion, if it is available. You hold the Bible or holy text and repeat the following oath after the registrar. The oath is "I swear by Almighty God (or whoever is relevant according to your religious belief) that the evidence I shall give shall be the truth, the whole truth and nothing but the truth".
You must tell the registrar if you want to take the affirmation instead of the oath. If the holy text for your religion isn’t available to take the oath, you can take the affirmation instead. The words of the affirmation are "I, do solemnly, sincerely and truly declare and affirm that the evidence that I shall give shall be the truth, the whole truth and nothing but the truth". When you have repeated your oath or affirmation, you will sit down.
In certain situations you can give evidence by video-link instead of coming into the court.
Examination in chief
The solicitor or barrister for the person who called you as a witness will then ask you a series of questions that allow you to give your evidence. This is called the examination in chief.
The questions that you are asked at this stage are designed to guide you through your evidence, so that you can give your account of what happened in your own words. You should carefully consider each question and answer it truthfully.
During the examination in chief, you cannot be asked leading questions. These are questions that suggest the answer. For example, you cannot be asked "Did you see Mr. X cross the road?" but you can be asked "What did you see Mr. X do?"
After the examination in chief, the solicitor or barrister for the other side will stand up and ask you a series of questions. This is called the cross-examination. The purpose of the cross-examination is to allow the other side to attempt to undermine or reduce the significance of your evidence.
You may be asked questions that are designed to make you seem unreliable, mistaken, confused or untruthful as a witness. Contradictions in your evidence may be pointed out to you, and you may be asked to explain those contradictions. During the cross-examination, you may be asked leading questions.
When the cross-examination is over, the solicitor or barrister for the person who called you as a witness can carry out a re-examination. This means that you will be asked more questions designed to clarify any issues that came up during the cross-examination. During the re-examination, you cannot be asked leading questions.
Leaving the stand
The judge can ask you questions, or to clarify something, at any time when you are in the witness box. When the cross-examination or re-examination is over, you will be asked to leave the stand. Normally that is the end of your involvement in the case. However, sometimes you may be asked to come back to court to give more evidence.
As a court witness, you may be entitled to witness expenses.
If you are a witness for the prosecution in a criminal trial, you should tell the investigating Garda what your expenses are. For example, you may miss out on wages for the days that you are in court, and you may have travel expenses to get to court. You should keep receipts for your expenses. The Garda will apply to the judge to have the witnesses expenses paid. If the judge agrees and makes an order, you will be given a cheque for your expenses.
If you are a witness for the defence in a criminal trial, you may also be entitled to witness expenses. You should tell the solicitor who has summonsed you to court what your expenses are.
If you are a witness in a civil trial, you will normally be entitled to any out-of-pocket expenses you have incurred from having to give evidence. You should speak to the solicitor who has summonsed you to court and they will apply for expenses on your behalf. Normally all the witness expenses are paid by the person who has lost the civil case, as the losing person will usually be ordered to pay the costs of both sides.
Expert witnesses such as doctors and psychiatrists are paid a set fee for giving evidence, whether it is a criminal trial or a civil trial. They are also paid for the reports they write for the case.
If you want more detailed information on this topic you should seek legal advice.