Who Can Be a Witness in Court? The Rules You Need to Know
However, not everyone is eligible to serve as a witness, and the rules surrounding who can testify, what they can speak to, and how their testimony is weighed are governed by both legal standards and procedural norms.
We’ll start with the types of witnesses and how they contribute to the legal process.
What are the types of witnesses?
In court proceedings, various types of witnesses are called upon to provide evidence and testify, each helping the court establish the facts of a case. The following are the primary types of witnesses who may appear before a court:
1. What is a factual witness?
Factual witnesses, also known as lay witnesses, provide evidence and testimony based on their direct knowledge of events. These individuals offer evidence about what they personally saw, heard, or experienced in relation to the case. They do this by first providing a witness statement or an affidavit which is a written account of their evidence. They will usually then have their evidence tested in court when their testimony is cross-examined by the counsel or barrister on the other side.
3. What is an expert witness?
Expert witnesses offer specialised evidence in areas where specific expertise is required which is beyond the knowledge of the court. These witnesses are not involved in the events being tried but are called upon to give their professional opinions on matters such as forensic evidence, accounting, ballistics, psychology, or medicine.
Their role is to explain complex information to the court in a clear and unbiased manner, helping judges and juries understand the technical aspects of the case insofar as it relates to their field of expertise. For example, a forensic scientific expert might testify about DNA evidence, a ballistics expert might explain the trajectory of a bullet in a shooting case and an accounting expert might quantify the loss or damage suffered by a business due to a breach of contract. There are special requirements for how expert evidence is provided to the court, both at the report stage and at trial through testimony during cross examination, and specialised training can help experts with this.
4. What is a hybrid witness (a professional witness)?
In some cases a witness may be both a lay witness (i.e. witness of fact) and an expert witness. This is typically the case if the witness is a professional and they are called to give evidence in relation to work they conducted in this profession. For example, let’s look at a case where medical evidence on a party is required to determine the scope of their injuries arising from an accident. Their family doctor will be called to give evidence as to what treatments that person was undergoing prior to the accident.
That is factual evidence, albeit in a professional setting. The doctor will state the facts of what occurred prior – for example, I saw the patient on 2 February 2024 at my clinic. The patient presented with back pain and I prescribed this medication. That is all factual evidence.
However, that doctor may be also asked what would be the effect if the patient failed to take the medication, or whether the patient’s condition could have worsened after that appointment but before the accident. This is an opinion which the doctor is providing.
Thus a hybrid/professional witness wears two hats. On one hand they explain to the court what they experienced (typically in a professional setting) and on the other, they provide an opinion based on their knowledge or expertise.
Now that we know the various types of witnesses, it’s important to clarify what their roles are, as each type of witness has a very different, but important purpose.
What is the role of a witness?
A witness plays a pivotal role in the legal process by providing evidence that can either support or challenge the facts presented by either side of a case.
Their primary duty is to present evidence based on their personal knowledge, experience, or expertise, with the goal of assisting the court in uncovering the truth. Witnesses are required to give an honest account of what they have seen, heard, or know in relation to the matter being adjudicated, ensuring that their testimony is factual and impartial.
In most cases, witnesses are called to provide evidence that corroborates or contradicts the narrative presented by the parties involved in the dispute. They may recount events they have observed, offer expert opinions in areas like forensics or medicine, or verify the authenticity of documents or other evidence submitted in court.
Importantly, a witness’s testimony must be confined to matters within their direct knowledge, unless they are serving as an expert witness, who can offer specialised opinions beyond their personal observations.
While the role of a witness is to provide clarity, it is also subject to scrutiny. The lawyers for both the prosecution and defence (or plaintiff/claimant and defendant/respondent in civil cases) are entitled to cross-examine witnesses to test the reliability and accuracy of their evidence. The court ultimately decides how much weight to place on a witness’s testimony based on factors such as consistency, credibility, and whether the witness demonstrates any bias.
Witnesses, therefore, play a critical part in helping the court make informed decisions, but their role is also governed by strict rules to ensure that their evidence is fair, relevant, and reliable.
Understanding the role of a witness is essential, but not everyone can be a witness. Let’s explore who can qualify to fulfil these roles. Each category has specific requirements, depending on the nature of their testimony.
Who can be a witness in court?
The eligibility of individuals to serve as witnesses in court depends on the type of testimony they are providing. Different categories of witnesses bring distinct perspectives, evidence and in some cases, expertise to a case, and each type of witness must meet certain criteria to offer reliable and relevant evidence.
Below is an outline of who can qualify as each type of witness:
1. Who can be a factual witness?
To be a factual witness, a person must have experienced first-hand something relevant to the factual matrix of the case, must be able to communicate their observations clearly and be deemed competent by the court.
Factual witnesses can come from a wide range of backgrounds:
- In criminal cases, they might be bystanders, family members, friends, or victims of the crime and the accused themselves.
- In civil cases, they could be individuals who were involved in or experienced the underlying factual background relevant to the court. For example they could have been involved in negotiating a contract which was breached, or have witnessed an accident.
- In family cases they would likely be people involved in the proceedings and others who experienced something relevant – their family members, friends, support workers etc.
Whether you’re a first-time lay witness or have been called before, our self-paced factual witness online courses will give you the skills and confidence to deliver your testimony effectively to the court.
3. Who can be an expert witness?
Unlike factual witnesses, expert witnesses are not required to have direct involvement in the events being tried. Instead, they are called upon to interpret evidence and provide professional opinions on technical matters that fall within their expertise.
Their expertise is important. It must be a specialised field of knowledge which the court does not know enough about. For example, this could include forensic science, medicine, psychology, ballistics, engineering, or financial analysis. Their qualifications typically include advanced education or training (including specific expert witness training). For instance, a forensic pathologist might be called to testify about the cause of death in a murder case, while a financial expert might explain complex transactions in a case involving fraud.
Their expertise could also arise from their experience rather than formal education. For example, someone who has driven trains all their life may be called as an expert witness on what a reasonable train driver should have done despite the fact they have no formal qualification in this field – their expertise arises from their extensive experience in their respective area.
To qualify as an expert witness, the individual must demonstrate that their testimony is based on reliable principles and methods. The court will usually assess their credentials, experience, and the relevance of their evidence before allowing them to present evidence or testify.
4. Who can be a hybrid or professional witness?
To serve as a hybrid professional witness you will effectively be both a lay witness and an expert witness. Thus you will have the necessary “qualifications” of each. Like any factual witness you will have directly experienced something relevant to the case – you will have seen something, spoken to someone or heard something. But you will also be an expert in a specific area or profession through either study and/or training and/or experience.
You will be able to advise the court on what you saw – the facts of the case, but also give an opinion to the court to assist it determining something it does not know about – your field of expertise.
Serving as a witness comes with both rights and responsibilities. Let’s examine the legal protections witnesses have and the obligations they must meet when giving testimony.
What are legal rights and obligations of witnesses?
Below is a detailed look at both the rights and obligations that witnesses must navigate when giving evidence. We’ll start with the legal rights.
What are the legal rights of witnesses?
While witnesses play an essential role in court proceedings, they are also entitled to specific protections that ensure their safety, dignity, and fairness. These rights are designed to support the witness as they fulfil their role in the justice process.
The right to be treated with respect
Witnesses are entitled to be treated with respect and dignity throughout the legal process. This includes being addressed politely by lawyers and judges, having their testimony heard in a fair and impartial manner, and not being subjected to harassment or hostile questioning during cross-examination.
Courts must also consider the emotional well-being of vulnerable witnesses, such as children or victims of trauma, and may allow special measures, such as video testimony, to reduce the stress of giving evidence.
If the thought of testifying in court makes you uneasy, our online courses will give you the confidence you need to perform at your best.
The right to protection
Witnesses, especially in sensitive or high-profile cases, are entitled to protection from threats or intimidation that may arise due to their evidence and testimony.
Courts can issue protective measures, such as anonymity orders or protective custody, to ensure the safety of witnesses whose participation might place them in danger.
For example, international courts may offer witness relocation or secure accommodation to those at risk of retaliation.
The right to legal counsel
While witnesses are not parties to the proceedings, they may have the right to seek legal advice from a solicitor before giving testimony, particularly if their evidence could incriminate them.
In certain jurisdictions, witnesses can invoke their right to remain silent under privilege against self-incrimination, meaning they cannot be forced to answer questions that may implicate them in a crime.
The right to reasonable expenses
Witnesses are often entitled to reimbursement for reasonable expenses incurred as a result of their participation in court proceedings. This can include travel costs, lost wages, and accommodation if they are required to testify in a location far from their home.
Some jurisdictions also provide witnesses with a small allowance for attending court.
What are the legal obligations of witnesses?
Along with their rights, witnesses have important legal duties that they must observe. These obligations ensure that their testimony contributes truthfully and impartially to the case, maintaining the integrity of the judicial process.
The duty to testify truthfully
The most fundamental obligation of any witness is to provide truthful evidence and testimony under oath (or affirmation) – a witness must “tell the truth, the whole truth and nothing but the truth”. Lying in court, under oath, known as perjury, is a criminal offence that can lead to serious legal consequences, including fines or imprisonment.
Witnesses must give honest accounts of what they know or have experienced and must not intentionally mislead the court.
The obligation to attend court
Once a witness has been subpoenaed or summoned to testify, they are legally obliged to appear in court on the date specified. Failure to comply with a subpoena without a valid reason can result in penalties, such as fines or even arrest.
If a witness is unable to attend due to illness or another serious reason, they must notify the court and provide evidence to support their claim.
The duty to remain impartial
Factual witnesses are expected to provide an unbiased account of events, regardless of which party called them to testify. Their evidence and testimony should be based solely on their knowledge of the facts, and they must not show partiality or try to favour one side over the other.
Expert witnesses are also required to remain impartial – they owe a primary duty to the court, and not to the party calling them as witness.
If a witness is found to be deliberately distorting the truth to benefit a particular party, they risk losing credibility, adversely affecting their case and legal sanctions.
Expert witnesses – the expert witness code of conduct or rules
Expert witnesses are governed by duties over and above factual witnesses. While all witnesses (both expert and lay) have the duty to tell the truth, experts are also governed by the relevant rules or code of conduct (or both) applicable to the jurisdiction in which they are providing evidence.
To assist witnesses in determining which rules or codes of conduct apply to you as an expert please refer to this helpful guide we have prepared for expert witnesses on the relevant rules and codes of conduct.
The obligation to maintain confidentiality
In some cases, witnesses may be privy to sensitive information that should not be disclosed outside the court proceedings. Witnesses, particularly expert witnesses or those involved in professional settings, may be subject to confidentiality obligations regarding what they can discuss publicly.
Breaching these obligations can lead to legal consequences, especially in cases involving classified or private information.
The duty to submit to cross-examination
Witnesses are not only required to give their evidence but must also be available for cross-examination by the opposing party. This process allows the court to assess the credibility and reliability of the witness’s testimony.
While witnesses have the right to be treated respectfully, they must answer relevant questions posed by the opposing side during cross-examination, except when invoking specific legal privileges, such as self-incrimination or professional confidentiality.
What are the common challenges for witnesses?
Testifying in court can be a daunting experience, and many witnesses face significant challenges that can affect their ability to provide clear and reliable evidence. These challenges range from personal fears to procedural complexities to deliberate strategies and tactics used by barristers and cross examining counsel to challenge the witness.
Understanding these hurdles can help witnesses prepare and courts to provide appropriate support.
| Challenge | Description |
| Emotional and psychological stress | Courts are intimidating, formal places. They are unfamiliar to most people and they are designed to invoke deference and awe. This puts witnesses under considerable emotional and psychological strain.
Additionally, for some witnesses, recalling traumatic or sensitive experiences can cause emotional distress. Vulnerable witnesses may face anxiety or overwhelm when testifying. |
| Lack of legal knowledge | Unfamiliarity with and the law and legal jargon can make testifying intimidating and confusing, leading to hesitation or uncertainty in the courtroom. |
| Lack of procedural knowledge | A lack of experience and understanding about how court works, its procedures, nuances and steps will put witnesses at a disadvantage. This is particularly acute when considering that the cross examining counsel is someone who is not only well trained in these procedures, but deals with them on a daily basis |
| Public speaking | Many people don’t like to speak in public. Giving testimony in court involves public speaking in front of judge, a group of lawyers and often members of the public and media and a jury. This compounds the pressure faced by the person giving evidence. |
| Barrister strategies and tactics | Cross examining counsel have an arsenal of tricks, strategies and tactics designed to test your evidence, confuse you, trip you up and discredit your evidence. They are taught this and practice it for many years on many witnesses, leaving you as a witness at a distinct disadvantage when giving evidence. |
| Lack of experience | Most witnesses will never have testified before (and will likely never testify again). It is a one-off occurrence for which they have limited preparation and training.
Conversely the cross examining barrister has been specifically taught how to cross examine witnesses. They have practised this art many times with many witnesses, and routinely do so on a weekly and sometimes daily basis. |
| Intense cross-examination | Cross-examination can involve aggressive or repeated questioning aimed at challenging credibility. This can lead to confusion or mistakes in testimony. |
| Memory recall issues | Witnesses often struggle to accurately recall events, especially if they occurred long ago, causing inconsistencies or memory-related difficulties. |
| Conflicting obligations | Witnesses may face conflicting professional or personal loyalties, such as experts maintaining neutrality or insiders revealing sensitive information. |
| Logistical and financial strain | Testifying can impose logistical or financial burdens, including travel costs or time missed from work, adding strain to the witness’ participation. |
| Fear of retaliation or intimidation | In some limited cases witnesses may fear threats or harm, especially in cases involving violent individuals or organised crime. Courts offer protective measures to address this. |
Given these challenges, how can witnesses ensure they fulfil their role effectively? Here are some practical tips for being a good witness in court.
How to be a good witness in court?
Being a witness in court is a serious responsibility, and how you present yourself can significantly influence the case’s outcome. While it can be a challenging experience, there are several key steps you can take to ensure that you are an effective and reliable witness.
Here are some practical tips on how to be a good witness in court:
- Tell the truth: Always be honest. If you don’t know or can’t remember something, say so. Saying “I don’t know” or “I can’t recall” is a legitimate response to any question. You cannot be expected to know or recall everything. Never guess or exaggerate.
- Stay calm and focused: Listen carefully to questions, take your time answering, and avoid getting emotional or argumentative—especially during cross-examination.
- Be clear and direct: Speak clearly, and answer only what’s asked. Keep your answers short and stick to the facts. Avoid unnecessary details and long-winded responses. A simple “yes” or “no” without any explanation can be a very satisfactory answer.
- Be prepared: Review relevant facts or documents before testifying. Refresh your memory. Don’t memorise your testimony word-for-word – you can’t and you will appear non-genuine and forced.
- Be professional: Dress appropriately and show respect to the court. Listen to the judge’s instructions, and don’t discuss your testimony outside the courtroom.
While these tips are crucial, the best way to feel fully prepared for court is through professional training. Loquitur offers specialist courses designed to help witnesses confidently navigate the challenges of giving evidence.
Whether you’re an expert witness, a lay witness, subpoenaed health practitioner, a public servant, or someone urgently called to testify in court, Loquitur’s witness familiarisation, expert witness training, and self-paced online courses can help you be at your best when it matters most.
Our training is available throughout Australia and internationally, ensuring you’re well-equipped for any legal forum, from courtrooms to inquiries and investigations.
Ready to prepare for your day in court?
Get in touch with Loquitur today to learn more about our witness training programmes.