Witness Testimony: Types and Conditions – A Comparative Legal Study

Introduction

Witness testimony has played a fundamental role in the law of evidence since early societies, where it was one of the most important means of proving facts before writing became widespread. Testimony was also recognized in Roman law, particularly during the reign of Emperor Justinian, when the prevailing rule favored testimony over written evidence.

With the spread of education, the development of commercial and civil transactions, and the emergence of problems related to false testimony, witness evidence gradually lost part of its importance in civil matters. Legal systems increasingly began to give greater weight to written evidence.

Nevertheless, witness testimony continues to be of considerable importance, especially in criminal matters, because crimes often occur unexpectedly and therefore cannot usually be supported by evidence prepared in advance.

Legal scholars have devoted significant attention to witness testimony because of the important role witnesses play in helping courts establish the truth of disputed facts. When a dispute is brought before a judge, the court first determines whether the contested fact may be proved through witness testimony and then verifies whether the legal requirements relating to both the witness and the testimony itself have been satisfied.

This subject raises two main questions: What are the different types of witness testimony? And what conditions must be satisfied by the witness and the testimony for the court to recognize it as a valid means of proof?

Accordingly, this study addresses the subject through two main sections:

1. Types of witness testimony.

2. Conditions required for the validity of witness testimony.

Part One: Types of Witness Testimony

Witness testimony takes several forms. As a general rule, testimony is given orally, although in certain circumstances it may be submitted in writing. Testimony may also be direct or indirect. Other recognized forms include hearsay testimony and testimony based on general reputation.

First: Oral and Written Testimony

Oral Testimony

The general rule is that testimony must be given orally, with the witness appearing before the court and relying on their memory and personal knowledge of the facts.

Article 81 of the Moroccan Code of Civil Procedure provides:

“The witness must give testimony orally and may not rely on notes except exceptionally and with the permission of the court.”

Egyptian procedural law likewise adopts the principle of oral testimony, while allowing a witness to refer to written notes with the permission of the court or the delegated judge when the nature of the case justifies doing so.

Thus, oral testimony remains the normal method of giving evidence, particularly because it allows the court to hear the witness directly and evaluate the witness’s statements.

Written Testimony

Written testimony is a non-traditional form of witness evidence in which a person’s statements are submitted to the court in writing rather than delivered orally before the judge.

The position of French courts toward written testimony developed over time. Initially, such statements were considered mainly for guidance, but courts later began to recognize them in certain circumstances. French legislation also intervened to regulate some aspects of written witness statements.

According to the study, several requirements must be satisfied for written testimony to be accepted, including:

• It must concern a specific fact.

• It must be made by a third party.

• The person making the statement must have personal knowledge of the fact.

• The statement must be prepared for the purpose of being submitted to the court.

The person preparing the written testimony must also satisfy the general legal requirements applicable to witnesses, and the document should contain sufficient information to establish the witness’s identity.

As to form, the statement should be written, signed, and dated by its author, and should be accompanied by documents establishing the author’s identity. As to content, it should include the author’s personal details and the facts personally known or observed by that person.

In practice, written testimony remains less common than oral testimony. Legal scholars have differed regarding its evidentiary value. Some regard it merely as a statement binding only on its author, while others accept that it may be relied upon in exceptional circumstances, such as when a witness is unable to attend court for a serious reason.

Article 78 of the Moroccan Code of Civil Procedure provides:

“If the witness proves that it is impossible for them to attend on the specified day, the court may grant an extension or travel to receive the testimony.”

Second: Direct and Indirect Testimony

Direct Testimony

The general rule is that testimony should be direct. This means that the witness informs the court of facts personally perceived through sight or hearing.

For example, a person may testify that they personally witnessed the delivery of a sum of money, observed a particular accident, or attended the conclusion of a contract and personally heard what was said between the parties.

Direct testimony is generally given orally, although the witness may, where permitted by the court, make use of written notes.

Indirect Testimony

Indirect testimony, sometimes referred to as second-degree testimony, occurs when the witness did not personally see or hear the disputed event, but instead repeats information received from another person.

This type of testimony differs from direct testimony because the witness has no personal connection with the event itself. Its evidentiary value is therefore generally left to the discretion of the court.

The study refers to a French scholarly opinion according to which indirect testimony may be valid where several conditions are satisfied, including:

1. The direct witness is unable to testify, for example because they are deceased or absent.

2. The direct witness entrusted another person with conveying the testimony.

3. The person giving the indirect testimony has full legal capacity.

4. The testimony is given by two men.

5. The direct witness has not withdrawn or contradicted the original testimony.

Third: Hearsay Testimony and Testimony Based on General Reputation

Hearsay Testimony

Hearsay testimony is based on information that a witness has heard from others concerning the fact to be proved rather than on the witness’s direct perception of that fact.

French civil law has accepted hearsay evidence in certain situations, while other legal systems treat it with varying degrees of acceptance.

According to the study, Lebanese law provides that testimony based on the widespread circulation of information is admissible only in cases expressly provided for by law. In Egyptian law, this type of testimony is generally not accepted in civil matters, although it may sometimes be considered for guidance where testimony and presumptions are otherwise admissible.

In Islamic jurisprudence, hearsay testimony has been accepted in a number of matters, including marriage, death, lineage, and dowry.

Maliki jurisprudence also allows it in certain cases involving the creation of a charitable endowment, wills, dissolution of marriage, ownership, and possession, particularly where the relevant facts are old and difficult to establish by direct evidence.

Testimony Based on General Reputation

Testimony based on general reputation differs from testimony in the strict traditional sense. It may take the form of a written document prepared before an official authority and recording facts attested to by persons who know them through general public reputation.

This form of testimony generally involves an official authority, such as a judge or notary, before whom witnesses provide information concerning the fact to be established.

The study notes that French law has permitted this type of evidence in certain civil-status matters. For example, it may be used where a person is unable to obtain a birth certificate, or where civil-status records have been lost or destroyed and facts such as marriage, birth, or death must be established.

In Egypt, according to the study, this type of testimony may also be used in matters relating to the identification of heirs, estate inventories, and the absence of a missing person before the competent authorities.

Part Two: Conditions Required for the Validity of Witness Testimony

It is not sufficient for a fact to be legally capable of proof through witness testimony. Certain conditions must also be satisfied before the court can rely on that evidence.

These conditions may be divided into requirements relating to the witness and requirements relating to the testimony itself.

First: Conditions Relating to the Witness

Among the most important conditions relating to the witness are legal capacity and the absence of certain family or marital relationships that may prevent the testimony from being accepted.

1. Legal Capacity

Legal capacity is one of the essential requirements for a witness. The witness must be capable of perceiving, remembering, and communicating the facts about which they are called to testify.

A lack of perception or discernment may affect a person’s legal ability to give valid testimony.

Legal capacity is commonly divided into two forms: capacity to hold rights and obligations, and capacity to exercise rights. The first refers to a person’s ability to acquire rights and bear obligations under the law. The second refers to a person’s ability to exercise personal and financial rights and to perform legally effective acts.

Most legal scholars consider perception and discernment essential to a witness because the ability to understand an event and distinguish its nature is necessary for reliable testimony.

According to the study, Article 75 of the Moroccan Code of Civil Procedure excludes the testimony of persons whom the law or a judicial order considers legally incapable of giving evidence.

The study also draws several conclusions concerning age and capacity, including that a child below the age of discernment may not give testimony, while testimony from certain minors may be heard under applicable legal rules, sometimes only for indicative purposes.

2. Absence of Certain Family or Marital Relationships

The study also examines the effect of the witness’s relationship with the parties to the dispute and refers to Article 75 of the Moroccan Code of Civil Procedure concerning kinship and affinity.

The rationale behind excluding testimony in certain cases is the possibility that emotional ties, personal interests, or family relationships may affect the impartiality or reliability of the witness.

Testimony Between Spouses

The restriction on testimony between spouses is linked to the possibility of favoritism resulting from shared interests or emotional ties, as well as the potential impact that testimony against one spouse may have on the marital relationship.

Testimony of Ascendants, Descendants, and Collateral Relatives

Restrictions in some family relationships are based on the concern that testimony may be influenced by personal interest, affection, hostility, or other family considerations.

Such testimony may also create tension or division within the family.

Testimony of Servants, Agents, Partners, and Guarantors

The study also discusses testimony by servants, agents, business partners, and guarantors, noting that Moroccan legislation does not expressly regulate every one of these situations.

The admissibility of such testimony may depend on whether the witness has a direct interest or a relationship of dependence that could affect impartiality.

For example, a guarantor may have a direct financial interest in the discharge of the principal debtor because the release of the debtor may also result in the release of the guarantor.

Second: Conditions Relating to the Testimony

In addition to the conditions that apply to the witness personally, there are requirements concerning the testimony itself. These include, in particular, giving testimony before a court and issues relating to the presence of the parties during the hearing of witnesses.

1. Testimony Must Be Given Before the Court

As a general rule, witness testimony must be given before a judge because judicial testimony is linked to proceedings before a competent judicial authority.

The study also considers situations in which a witness is unable to attend court for a serious reason, such as illness. In such circumstances, legal procedures may allow the testimony to be received in another manner.

Article 78 of the Moroccan Code of Civil Procedure provides:

“If the witness proves that it is impossible for them to attend on the specified day, the court may grant an extension or travel to receive the testimony.”

Where the witness resides outside the territorial jurisdiction of the court, the study indicates that testimony may be obtained through judicial delegation.

If the witness resides outside the country, the applicable procedures for international judicial cooperation may be followed in accordance with the relevant legal rules.

2. Giving Testimony in Relation to the Presence of the Parties

The study also discusses whether the parties must be present when the witness is heard.

It refers to the first paragraph of Article 76 of the Moroccan Code of Civil Procedure, which states:

“Witnesses shall be heard separately, whether in the presence or absence of the parties.”

The study further examines the relationship between this provision and the parties’ right to challenge, discuss, or submit questions regarding the testimony in accordance with the applicable procedure.

Where a party has been legally informed of the date of the hearing but fails to attend despite having been properly summoned, the study indicates that the party may generally not object merely because the witness was heard in their absence, unless there was a legally acceptable excuse.

Each witness gives testimony separately and outside the presence of the other witnesses. Reference to the presence of the parties includes either the parties themselves or their legal representatives.

Conclusion

Witness testimony remains an important means of evidence and has historically played a major role in establishing rights and facts. Although its importance has declined in certain civil matters because of the increased preference for written evidence, it continues to occupy an important position, particularly in situations where evidence cannot reasonably be prepared in advance.

Witness testimony may take several forms, including oral and written testimony, direct and indirect testimony, hearsay testimony, and testimony based on general reputation. Each type has its own characteristics and evidentiary significance.

The admissibility and value of witness testimony do not depend solely on the substance of the witness’s statements. They are also connected to a number of legal safeguards concerning the witness’s capacity, relationship with the parties, and the manner in which the testimony is given before the court.

Accordingly, witness testimony remains an important instrument for establishing judicial truth, but its value depends on compliance with the legal safeguards designed to ensure its reliability and to allow the court to assess its credibility and evidentiary weight.

References and Footnotes

1. Decision dated 1954.

2. Sahar Abdel Sattar Imam Youssef, The Role of the Judge in Evidence: A Comparative Study, doctoral thesis in law, 2001, pp. 295–296.

3. Decree No. 1122-73 dated 17 December 1973.

4. Sahar Abu Youssef, previously cited work, pp. 302–303.

5. Henry Levy Bruhl, La preuve judiciaire, étude de sociologie juridique, Paris, 1964, pp. 125–126.

6. Youssef Dalanda, Witness Testimony under Islamic Law, Statutory Law, and the Jurisprudence of the Supreme Court, Dar Houma, Algeria, 2005, p. 46.

7. Reda Al-Marghani, Rules of Evidence, Institute of Public Administration, Research Department, 1985, p. 276.

8. Nabil Ibrahim Saad, Evidence in Civil and Commercial Matters, Dar Al-Nahda Al-Arabiya, Beirut, p. 171.

9. Yahya Bakoush, Evidence under Algerian Civil Law and Islamic Jurisprudence, 2nd ed., National Book Foundation, Algeria, 1988, p. 191.

10. Marcel Duclos, Précis Élémentaire du Droit Musulman, Algiers, 1940, pp. 473–474.

11. Edouard Eid, Encyclopedia of Procedures, Evidence and Enforcement, Vol. 16, Lebanon, 1991.

12. Anwar Sultan, Rules of Evidence in Civil and Commercial Matters, University Publishing House, Beirut, 1984.

13. Abdel Hamid Al-Shawarbi, Evidence by Witness Testimony in Civil, Commercial, Criminal and Personal Status Matters, Mansha’at Al-Maaref, Alexandria, 1996.

14. Mohamed Atiya Ragheb, The General Theory of Evidence in Comparative Arab Criminal Legislation, Cairo, Al-Maarifa Press, 1960.

15. Ibrahim Saleh, Evidence by Witness Testimony in Algerian Law: A Comparative Study in Civil and Criminal Matters, doctoral thesis, Mouloud Mammeri University of Tizi Ouzou, Faculty of Law, 2012.

16. Ahmed Nashat, Treatise on Evidence, Vol. 1, 7th ed., Dar Al-Fikr Al-Arabi, Cairo, 1972.
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