In the US, witnesses are legally required to participate in a trial or they face criminal penalties. However, it seems in other common law countries such as Australia and New Zealand, the witnesses have the right to not attend the trial. So why does the US force the witness while the others not?
In the US an accused has the right to face the accuser. The benefit is that the court must actually produce an accuser instead of simply making one up out of thin air to railroad someone they find inconvenient.
There are cases where the court has allowed witnesses to testify anonymously if there is evidence that the accused, or the associates of the accused, present a real danger to the witness. This is most often done in organized crime cases.
I’m not an expert on the details but I’m sure one of our more scholarly legal minds will be along shortly to correct anything I’ve mistaken.
IANAL, but it’s not necessarily automatic. If a party in a trial wishes you to appear in court, they must request a subpoena, which will be granted if they have grounds. The party being subpoenaed also has the right to appeal the subpoena if they don’t believe they should be there, for whatever reason.
And I don’t know about other countries, but what you say seems to be contradicted by Wikipedia:
A person can be compelled to testify in every common law jurisdiction I am familiar with. You cannot be forced to incriminate yourself and if you are the accused you do not necessarily have to take the stand and there is a marital privilege but that is it.
That’s my understanding as well - certainly it’s the case here in Canada.
oyster11, can you provide a cite for the assertion that only the US forces witnesses to appear in court?
The court gets to decide charges. They do not allow a witness to decline to answer or decline to appear for whatever reason - because they are sympathetic to the accused, because they are afraid of repercussions, too embarassed, or whatever. And, other than the exceptions mentioned above, you cannot refuse to answer on the stand. I’m pretty sure there have been cases in Canada of people being jailed until they answer (contempt of court) just can’t think of one off hand. And of course, if you lie under oath that’s perjury.
Of course neither the prosecutor nor defence can go on a fishing expidition. The questions and testimony have to be relevant to the issue in court. (We’v seen those TV dramas where the judge asks “where is this line of questioning going?”)
The USA also has a Grand Jury, which is essentially the fishing expedition which other countries do not have. Anywhere else, the prosecutor has to bring forward enough evidence to bind a defendant over for trial before they start hauling witnesses into the box and make them answer the difficult questions under oath. In the USA, they stick them in front of a Grand Jury, and only the prosecutor asks questions, and they use this to produce enough evidence to charge the person (and force the witnesses and even the defendant to answer, plead the fifth, or perjure and incriminate themselves).
If the witnesses against you do not appear in court, how is the jury or judge to determine the veracity of their remarks? Just take them as true, no questions asked? The defense doesn’t get to ask any questions of the witnesses that will convict you to prison? That sure doesn’t sound right to me.
I’m kind of glad, if I’m accused of a crime and risk prison if convicted, that I get to see and question those who would present evidence against me. Otherwise it’d be dead easy to construct evidence against someone.
Note that testimony can also be provided by depositions, which are still under oath, with lawyers for both sides present, along with a court recorder.
Grand Juries are used in the federal system (the Constitution requires it for “infamous” crimes, which is now taken to mean felonies.) Only about half the states use grand juries in their criminal systems now, though, the rest having switched to evidentiary hearings of some sort.
For all I know they may do this to some extent (but I don’t think they do). In a case where a witness is going to testify against some dangerous element, like the mob, allow them to testify through a closed circuit TV with there faces blocked and there voices altered. It could still allow 2 way conversation between the witness and the attorneys, and the witness dosn’t have to show his face to guys who want to give him a columbian necktie.
I think the OP’s alternative is supposed to be that the person requested to witness doesn’t take part in the case at all, not that anyone who desires should get to phone in their testimony.
It’s not just the right to confront the accuser. The 6th Amendment also gives the accused the right to compulsory process to require witnesses to attend and testify.
Precisely: It’s the Sixth Amendment that guarantees this in the US. It says, among other things, that the accused has the right to confront opposing witnesses, and to force favorable witnesses to appear in court on his behalf.
How do depositions figure into this? Do they have the full evidentiary validity of oral testimony at trial? Are they used in civil matters only, and can a witness be compelled to give a deposition?
Deposition testimony is evidence. It can be used at trial if for some reason the deponent is unavailable at trial.
They can be used in criminal matters as well. The attorneys involved, acting as officers of the court, may subpoena witnesses for deposition.
Plus, imagine that you are on trial for your life, but the one person who can provide you an air tight alibi decides that he doesn’t want to miss work that day. I think for matters of such importance, or anything where a person’s rights are on the line, it’s not too much trouble to make someone show up at the damned courthouse.
This is incorrect. The DA decides whether to charge and, if so, what to charge.
Not how a GJ works:
http://corporate.findlaw.com/law-library/taking-the-fifth-amendment-in-front-of-the-federal-grand-jury-in.html
http://www.finer-bering.com/grandjuryArt.pdf
However, this varies from state to state, and the times depositions can be used in criminal cases is much different from civil. In California, for example, criminal depositions can only be used to preserve evidence from a witness who is going to leave the state or in poor health.
Incorrect. In the common law systems, it is the person who begins the criminal process who decides what charge to lay. The court does not decide what charges to lay.
Another incorrect legal statement. In Canada, the person who lays the charge, normally a peace officer, does not have to present any evidence in advance. He or she prepares a sworn information, alleging that John Doe has committed the offence of X on such and such a date. That is enough to start criminal proceedings.
If the offence alleged is to be tried summarily, the evidence is led only once, before the summary process judge. If the offence is an indictable one, the witnesses are called at a preliminary hearing, at the conclusion of which the preliminary hearing judge decides if there is enough evidence to commit the accused to stand trial. But in either case, witnesses are called to testify based on the information sworn by the peace officer; no other evidence is needed prior to calling the witnesses.