Being a Witness in Court: Rules and Restrictions

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Anyone with information about a crime might have to come to court to answer questions about what they saw, heard or experience. This is true both for crime victims and people who saw or heard something about the crime.

Answering questions in a court case is called "testifying".

Just about everybody can be called to testify. But there are some exceptions. For example, some people don't have the ability to testify, or they might need special help to testify.

To testify in a court case, a person must be able to explain what he knows, understand the lawyers' questions and answer them. He must also be able to take an oath or solemnly state that he will tell the truth . In special cases, a person who is under the age of 14 or who has an intellectual disability can simply promise to tell the truth.

Special Rules for People Under the Age of 14 and People with Intellectual Disabilities

Like anyone else, adults with intellectual disabilities can testify in criminal court cases. Children can also testify. At the request of the government lawyer or the accused, they must come to court to testify.

However, there are some legal measures that can make it easier for these people to testify.

If a lawyer is unsure about a person's ability to, a judge will make a decision about this.

Children

Children can testify they can understand the lawyers' questions and answer them.

They can make a promise to tell the truth. Unlike other people who testify, they do not have to take an oath or make a solemn statement to tell the truth.

If there is a doubt about a child's ability to testify, the judge must conduct an inquiry. The purpose of the inquiry is to decide whether the child can remember the events and describe them. If the child can do this, the child's testimony is as valid as that of an adult.

People with Intellectual Disabilities

Like anyone else, people with intellectual disabilities can be called to testify in a criminal case. Before testifying, they must take an oath or solemnly state that they will tell the truth. In some cases, the law allows them to simply promise to tell the truth.

The ability of a witness with an intellectual disability to testify can be challenged. In these cases, the judge must do an inquiry to see whether :

  • the witness understands what it means to take an oath or make a solemn statement to tell the truth
  • the witness is able to communicate the facts

When making this decision, the judge must give the person whose capacity to testify is challenged a chance to speak, unless this would be too traumatic for the person. The judge can also talk to him in a place where he feels more comfortable. In situations like this, the judge must take into account the specific needs of the person and ask him questions in a clear, simple and calm manner.

The judge runs the inquiry. Therefore, she decides whether the jury will be present (if there is a jury in the case) and whether the lawyers can question the person whose mental capacity is being challenged.

At the end of the inquiry, the judge can reach one of three conclusions:

Conclusion
Consequence
The person is able to explain the facts AND understands the nature of an oath or solemn statement to tell the truth. The person can testify like anyone else by taking an oath or making a solemn statement to tell the truth.
The person is able to explain the facts BUT does not understand the nature of an oath or solemn statement to tell the truth. The person can testify on a simple promise to tell the truth.
The person is unable to explain what she knows to the judge. The person is not allowed to testify.

 

Our video The Duty of Being a Witness in a Criminal Court Case

Important !
This article explains in a general way the law that applies in Quebec. This article is not a legal opinion or legal advice. To find out the specific rules for your situation, consult a lawyer or notary.