Testimony

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:

• argumentative
• asked and answered
• best evidence rule
• calls for speculation
• calls for a conclusion
• compound question or narrative
• hearsay
• inflammatory
• incompetent witness (e.g., child, mental or physical impairment, intoxicated)
• irrelevant, immaterial (the words "irrelevant" and "immaterial" have the same meaning under the Federal Rules of Evidence. Historically, irrelevant evidence referred to evidence that has no probative value, i.e., does not tend to prove any fact. Immaterial refers to evidence that is probative, but not as to any fact material to the case. See Black's Law Dictionary, 7th Ed.).
• lack of foundation
• leading question
• privilege
• vague
• ultimate issue testimony

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

• non-responsive

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.

Christians in general, especially within the Evangelical tradition, use the term "to testify" or "to give one's testimony" to mean "to tell the story of how one became a Christian". Commonly it may refer to a specific event in a Christian's life in which God did something deemed particularly worth sharing. Christians often give their testimony at their own baptism, church services, and at evangelistic events. Many Christians have also published their testimony on the internet.

In the context of large-group awareness training, anecdotal testimony may operate in the forms of "sharing" or delivering a "share".[10][11]

Bataan Death March Testimonials

Some published oral or written autobiographical narratives are considered "testimonial literature" particularly when they present evidence or first person accounts of human rights abuses, violence and war, and living under conditions of social oppression. This usage of the term comes originally from Latin America and the Spanish term "testimonio" when it emerged from human rights tribunals, truth commissions, and other international human rights instruments in countries such as Chile and Argentina. One of the most famous, though controversial, of these works to be translated into English is I, Rigoberta Menchú. The autobiographies of Frederick Douglass can be considered among the earliest significant English-language works in this genre.

In philosophy, testimony is a proposition conveyed by one entity (person or group) to another entity, whether through speech or writing or through facial expression, that is based on the entity's knowledge base.[12] The proposition believed on the basis of a testimony is justified if conditions are met which assess, among other things, the speaker's reliability (whether her testimony is true often) and the hearer's possession of positive reasons (for instance, that the speaker is unbiased).[13]

We can also rationally accept a claim on the basis of another person's testimony unless at least one of the following is found to be true:

1. The claim is implausible;
2. The person or the source in which the claim is quoted lacks credibility;
3. The claim goes beyond what the person could know from his or her own experience and competence.[14]