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This article is focused on New Zealand law and explains issues from a Common law perspective.
How to appear as a witness in court in New Zealand
Appearing as a witness in court can be a nerve-wracking experience. You will probably find it easier if beforehand you take some time to understand the process and what is expected of you.
Do I have to swear on a Bible?
While you must tell the truth on the stand, you do not have to swear an oath to God and place your hand on the Bible if you object to this religious reference. You may instead simply "affirm" to tell the truth, which carries the same obligation to tell the truth as does a sworn oath.
Do witnesses always have to give evidence in person?
As a general rule you are required to attend at court and give your evidence in person. But your written statement ("deposition") may be accepted if you are seriously ill in hospital or unable to attend because of the distance involved.
Giving your testimony
You may be asked to wait outside the courtroom before you give your evidence. This is to ensure that your testimony is not coloured by what the other witnesses say.
Initially you will be questioned by the lawyer that called you to give evidence. He or she will first ask you to state your name, address and occupation so that the court can identify you for the record.
While you may prepare beforehand by going through the evidence with the lawyer, and even rehearse what it will be like to be on the stand, you must provide the court with your own words and observations; your testimony should not be supplied for you by the lawyer.
Usually you will be unable to bring any notes to the stand with you, but the judge may allow this in situations where it would be of benefit to you so that you can refresh your memory.
Cross-examination and re-examination
The other lawyer will then have the opportunity to question you: this is called "cross examination". In doing this, the other lawyer is clarifying the accuracy and relevance of the testimony you have given. They may also point out any inconsistencies between the testimony you gave to the lawyer who first questioned you and the testimony you have given on cross-examination.
After the cross-examination the lawyer who called you has an opportunity to re-examine you, by asking you any new questions that have arisen out of the cross-examination.
When can I leave the court?
Once you have given your testimony, you will be directed to step down from the stand. However, you must not leave the court until you have been given explicit permission to do so.
Always testify truthfully
It is vital that you testify truthfully and only about matters that you have personal knowledge of. This means that you should not make guesses or provide opinions about how the events occurred, unless you are specifically asked for this.
If you did not understand a question properly you can ask the lawyer to repeat or clarify it before you answer it.
If you make a mistake in your testimony, you should inform the lawyer who called you as soon as possible.
Certain relationships between people are "privileged", which means that you are not required to give evidence of anything said between you and the other party to the relationship. Examples are:
- husband and wife
- lawyers and their clients
- medical practitioner and their patients
- things said to your priest or minister in a situation similar to a confession
Will I get paid for being a witness?
While there is a payment scheme for witnesses, the payments are not high. There are two scales in the scheme:
- professional witnesses - that is, doctors, accountants and so on who testify as to their expert knowledge
- ordinary witnesses
Support for victims appearing as witnesses
If you are giving evidence as the victim of a crime, Victims Advisers (who work for the courts) and Victim Support workers can provide you with support, including explaining the process to you beforehand (see How to obtain support and exercise your rights as a victim).
- If you are harassed before you appear as a witness, you should inform the Police or the lawyer who called you as soon as possible. If it is thought that you are in danger the Police will give you appropriate protection. Your own lawyer will be able to advise you of how to obtain protection from the court under the HARASSMENT ACT 1998.
- If you believe your answer to a question may incriminate you, you may refuse to answer it. But if you answer and do not tell the truth, you have committed perjury, which is an offence punishable by a fine or imprisonment. If you are concerned about giving evidence that might incriminate you, it is advisable that you consult your own lawyer first.
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