Definition
The obligation of competent persons to appear before a court or tribunal and give sworn testimony when lawfully summoned. Attendance and testimony of witnesses encompasses two related duties: (1) the obligation to appear when subpoenaed, and (2) the obligation to testify truthfully once present. As a general rule, any person who is legally competent to testify may be compelled to attend proceedings and give evidence. Exceptions exist for witnesses protected by privilege, those physically unable to attend, or those beyond the court's jurisdictional reach.
Why It Matters in Research
This phrase appears as a composite heading in older legal materials, reflecting a time when the procedural right to compel witness attendance and the evidentiary rules governing testimony were treated as a unified subject rather than separate doctrines. Researchers consulting historical sources should be alert to the fact that modern legal writing has largely disaggregated these topics: issues of attendance are now typically addressed under subpoena practice, civil or criminal procedure rules, and constitutional compulsory process doctrine, while testimony rules fall under evidence codes and witness competency frameworks.
Historical sources under this heading often fold in material that today would be searched separately, including: deposition procedure for witnesses who are ill, elderly, or about to leave the jurisdiction; perpetuation of testimony statutes; and the rules governing expert witness compellability. If a search of a historical digest or treatise under "witnesses" returns thin results, try the combined phrase as it appears in older indexes.
Jurisdictional variation in this area was, and remains, significant. Bouvier notes that most states had enacted statutes addressing witnesses at inconvenient distances or those at risk of unavailability before trial. These statutes were the predecessors to modern deposition-on-notice practice and the unavailability rules embedded in hearsay exceptions. Researchers tracing the development of deposition practice or former testimony exceptions will find productive leads under this heading in pre-twentieth-century digests.
The constitutional dimension — the Sixth Amendment right of criminal defendants to compulsory process to obtain favorable witnesses — is largely absent from older dictionary treatments of this subject. Researchers working on compulsory process questions should not expect historical dictionary entries under this heading to address that doctrine.
Historical Dictionary Support
Bouvier's Law Dictionary states the foundational rule plainly: all competent persons may be compelled to attend and testify. The entry then pivots quickly to the principal practical qualifications — statutes accommodating witnesses who live at an inconvenient distance from the trial venue, witnesses who are ill, witnesses about to leave the state, and witnesses otherwise at risk of unavailability. This structure is characteristic of Bouvier's approach: establish the general rule, then immediately identify the statutory safety valves that the general rule requires.
The Bouvier entry's truncation at a critical point is notable. The surviving text breaks off mid-sentence while describing witnesses likely to be unavailable — precisely where the most practically important material would have appeared. Researchers should treat the Bouvier entry as establishing the framework and directing attention to perpetuation of testimony and commission practice, then consult supplementary period sources for the full procedural detail.
What historical dictionaries of this era typically omit: the constitutional right of defendants to compel testimony (compulsory process), the modern law of witness immunity as a tool for compelling reluctant witnesses, and any treatment of privileges beyond the most basic. The focus in historical sources is almost entirely on geographic and physical availability rather than on legal compellability as against privilege or self-incrimination concerns.
Jurisdictional Note
Statutory variation among states in the rules governing out-of-state witnesses and witnesses at risk of unavailability was significant in the nineteenth and early twentieth centuries. Uniform acts, including the Uniform Act to Secure the Attendance of Witnesses from Without a State in Criminal Proceedings, later reduced some of this variation, but researchers working across jurisdictions in historical materials should verify which statutory framework was operative in the relevant state and period.