Witnesses are vital to fair court decisions, providing direct event accounts that establish facts. Testifying can be intimidating, but understanding witness duties and the deposition process can ease anxiety. By knowing what's expected, witnesses can confidently contribute to legal proceedings. This knowledge empowers them to provide clear, accurate testimony, ultimately aiding in the pursuit of justice.

In India, the legal reference for depositions in civil cases primarily lies within the Code of Civil Procedure, 1908, particularly Order XVIII (which governs the hearing of the suit and examination of witnesses) and Order XXVI (which allows for the appointment of commissions to record evidence outside the court).

Additionally, Sections 26 and 27 of the Bharatiya Sakshya Adhiniyam, 2023 govern the admissibility of such depositions as evidence under specific conditions - such as when a witness is dead, untraceable, or incapable of giving evidence, and where the party against whom the evidence is used had the opportunity to cross-examine the witness in the earlier proceeding.

The Fundamental Duty: Truthfulness

The paramount duty of any witness is to tell the truth, the whole truth, and nothing but the truth. This obligation is often formalized through an oath or affirmation taken before the testimony begins. Lying under oath, also known as perjury, is a serious offense with significant legal consequences, including fines and imprisonment. This duty extends beyond simply avoiding outright lies. It also encompasses:

• Accuracy: Witnesses must strive to recall events as accurately as possible. If unsure about a detail, it is better to state "I don't recall" rather than speculate or guess.
• Completeness: Witnesses should provide all relevant information they possess, even if it seems unfavourable to one side or the other. Withholding pertinent details can be as detrimental as providing false information.
• Objectivity: While personal biases may exist, witnesses should endeavour to present their testimony in an objective and unbiased manner, focusing on the facts as they perceived them.

The Duty to Attend Court

Once a witness has been properly subpoenaed (ordered to appear in court), they have a legal obligation to attend at the specified date, time, and location. Failure to appear without a valid excuse can result in penalties, including fines or even a warrant for their arrest. There are limited circumstances under which a witness may be excused from attending court, such as serious illness or being outside the jurisdiction. In such cases, proper communication with the court and the party who subpoenaed them is essential.

The Duty to Answer Questions

During the deposition, witnesses are required to answer the questions posed to them by the attorneys. This includes questions during both direct examination (by the party who called the witness) and cross-examination (by the opposing party). However, this duty is not absolute. Witnesses have the right to:

• Understand the question: If a question is unclear or ambiguous, the witness should ask for clarification before attempting to answer.
• Seek clarification on legal jargon: Legal proceedings often involve specialized terminology. Witnesses should not hesitate to ask for explanations of terms they don't understand.
• Object to improper questions: While the witness themselves does not formally object, their attorney (if they have one) can raise objections to questions that are irrelevant, leading, argumentative, or call for speculation. The judge will then rule on the objection.
• Invoke certain privileges: In specific circumstances, a witness may have a legal privilege that allows them to refuse to answer a question. Common examples include the privilege against self-incrimination (in criminal cases) and attorney-client privilege.

How to Depose in Court: A Step-by-Step Guide

Testifying in court can be a nerve-wracking experience. Understanding the process can help witnesses feel more prepared and confident. Here's a general overview of what to expect:

• Arrival and Waiting: Upon arriving at the courthouse, the witness will typically check in with the court staff or the attorney who subpoenaed them. They may have to wait in a designated area until they are called to the courtroom.
   
• Taking the Oath or Affirmation: Once in the courtroom, the witness will be asked to stand and raise their right hand. They will then be administered an oath (often involving a religious text) or an affirmation (a non-religious declaration) promising to tell the truth. It's crucial to listen carefully and respond clearly with "I do" or "I affirm."
   
• Direct Examination: The attorney who called the witness will begin by asking a series of questions. These questions are usually designed to elicit the witness's account of the relevant events in a clear and chronological manner. Witnesses should listen carefully to each question and answer truthfully and directly to the best of their recollection. It's important to:
  • Speak clearly and audibly.
  • Maintain eye contact with the jury (if present) and the judge.
  • Answer only the question asked and avoid volunteering additional information.
  • If you don't know the answer, say "I don't know" or "I don't recall."
  • Avoid using jargon or slang unless necessary and explain it if you do.
     
• Cross-Examination: After the direct examination, the opposing attorney will have the opportunity to cross-examine the witness. The purpose of cross-examination is often to challenge the witness's credibility, highlight inconsistencies in their testimony, or elicit information that supports the opposing side's case. During cross-examination, it's essential to:
  • Listen carefully to each question.
  • Remain calm and composed, even if the questioning becomes challenging.
  • Answer truthfully and directly, even if the answer seems unfavourable.
  • Avoid arguing with the attorney. If you disagree with a characterization of your previous testimony, politely state that it's not your recollection.
  • If you need clarification, ask for it.
     
• Redirect Examination (Optional): Following cross-examination, the attorney who initially called the witness may have an opportunity for redirect examination. This allows them to clarify any points raised during cross-examination or address any potential misunderstandings.
• Recross-Examination (Optional): The opposing attorney may then have a brief opportunity for recross-examination, limited to the topics covered in redirect examination.
• Conclusion of Testimony: Once all questioning is complete, the judge will typically excuse the witness. The witness should not leave the courtroom until they have been formally excused.
   

Tips for Effective Deposition:

• Review relevant documents and refresh your memory: If you have reviewed any documents related to the case before your testimony, take some time to go over them again.
• Meet with the attorney who subpoenaed you: This provides an opportunity to understand the scope of your testimony and practice answering potential questions.
• Dress professionally and respectfully: Your appearance can influence the perception of your credibility.
• Listen carefully to each question: Ensure you understand what is being asked before you answer.
• Pause before answering: This gives you time to think and the attorneys time to raise any objections.
• Speak clearly and at a moderate pace: Ensure everyone in the courtroom can hear and understand you.
• Be truthful and stick to the facts: Avoid speculation, opinions, or hearsay (information you heard from someone else).
• Don't be afraid to say "I don't know" or "I don't recall": It's better to admit a lack of memory than to guess or provide inaccurate information.
• Maintain composure: Remain calm and polite, even if the questioning becomes challenging.
• Answer only the question asked: Avoid volunteering additional information.
• If you are unsure, ask for clarification: Don't try to answer a question you don't fully understand.

Conclusion:
Testifying in court is a crucial civic duty. Witnesses play a vital role in the legal system by providing truthful and accurate information. To confidently fulfil this responsibility, witnesses should understand their duties and the deposition process. Preparation and honesty are key, ensuring they contribute meaningfully to the pursuit of justice. By focusing on presenting clear and factual accounts, witnesses can navigate the courtroom experience effectively and uphold the integrity of the legal process.

Written By: Md.Imran Wahab, IPS, IGP, Provisioning, West Bengal
Email: [email protected], Ph no: 9836576565