Non-judicial witnesses are those who attest an act of unusual importance, for the due execution of which evidence may after wards be required. They are either made necessary by law, as the witnesses to marriages and wills, or used by general custom, as the witnesses to deeds. In some cases the attestation has be come a mere form, such as the attestation of the lord chancellor to a writ of summons. (See WRIT.) Number.—The rule of English law as to the number of wit nesses necessary is expressed in the phrase testes ponderantur non numerantur. But there are certain exceptions, all statutory. Two witnesses are necessary to make a will valid; two are required to be present at a marriage and to attest the entry in the marriage register; and in the case of blasphemy, perjury, personation and most forms of treason, two or more witnesses are necessary to justify conviction. Witnesses to bills of sale under the Bills of Sale Act, 1882, and witnesses on a charge of personation at elections, are required to be "credible." And in the case of dis honour of a foreign bill of exchange the evidence of a notary public is required, probably a survival from the law merchant or a concession to Continental nractire A warrant of attnrnow ninct be attested by a solicitor, and certain conveyances of property held on charitable uses must be attested by two solicitors. In certain civil cases the evidence of a single witness is not sufficient unless corroborated in some material particular—not necessarily by another witness—e.g., in actions of breach of promise of mar riage, or affiliation proceedings and matrimonial causes, or where unsworn evidence of children is admissible. In practice, but not in strict law, the evidence of an accomplice is required to be corroborated.
In criminal cases an accused person could not formerly be sworn as a witness or examined by the court, though he was free to make statements. The origin of this rule is by some traced to the maxim nemo tenetur prodere seipsum, by others to the theory that the petty jury were the prisoner's witnesses. More over, witnesses for the defence could not be examined on oath in cases of treason and felony until 1702 in England, 1711 in Ireland and 1735 in Scotland. The husband or wife of the accused could not be examined on oath as a witness either for the prosecution or the defence except in prosecutions for treason or for personal in juries done by one spouse to the other. This exclusion was in accord with the disqualification of parties to civil causes; but there was a lack of reciprocity, for the prosecutor was a compe tent witness because the Crown is the nominal prosecutor. The rule had to a certain extent a beneficial effect for the defence, in saving the accused from cross-examination, which in certain peri ods and in political trials would have led to abuse. On the aboli tion of other disqualifications that of the accused was left. This inconsistency led to much legal discussion and to piecemeal and, ultimately, complete change in the law. Between 1872 and 1897
some 26 acts were passed rendering accused persons and their wives or husbands competent (but not in general compellable) witnesses in particular criminal cases ; and finally, by the Criminal Evidence Act, 1898, which abrogates the common law rule above, and in practice supersedes, but does not repeal, the particular statutes just mentioned, and does not apply to Ireland, every person charged with an offence, whether solely or jointly, and the wife or husband of such person is rendered a competent witness for the defence, subject to certain specified conditions. For these conditions, and for the rules regulating the attendance, oaths, examination, and privileges of witnesses, see EVIDENCE.
The attestation of documents out of courts of justice is ordi narily not on oath ; but where the documents have to be proved in court the attesting witnesses are sworn like others, and the only judicial exception is that of witnesses ordered to produce documents (called in Scotland "havers") who are not sworn un less they have to verify the documents produced. Questions as to competence (including questions of the right to affirm instead of swearing or as to the proper form of oath) are settled by examin ation by the court without oath on what is termed the voir dire. The evidences of judicial witnesses is taken viva voce at the trial, except in interlocutory proceedings and in certain matters in the chancery division and in bankruptcy courts. Where the witness cannot attend the court or is abroad his evidence may be taken in writing by a commissioner delegated by the court, or by a for eign tribunal under letters of request issued by the court in which the cause is pending. The depositions are returned by the dele gated authority to the court of trial. Under English law evidence must be taken viva voce in a criminal trial, with a few exceptions, e.g., where a witness who has made a deposition before a magis trate at an earlier stage in the case is dead or unable to travel, or in certain cases within the Merchant Shipping Acts, or of offences in India or by Crown officials out of England. In Europe corn missions vogatoires are freely used to obtain written depositions for the purpose of criminal trials, and are allowed to be executed in England.
On charges of treason lists of the witnesses to be called by the Crown must be supplied to the accused. In ordinary indictable cases there is no such obligation, but the names of the witnesses for the Crown are written on the back of the indictment; and where the witnesses have not been examined at the preliminary enquiry it is now established practice to require notice to the accused of their names, and a precis of what they will be called to prove. In Scotland, in all indictable cases, a list of witnesses must be served on the accused (the panel) (1887, c. 35), and the same rule is observed in France. In the United States the same course is adopted where a capital offence is charged.