Definition
A going witness is a witness who is about to leave the jurisdiction of the court before whom a cause is pending, making it uncertain or impossible that the witness will be available to testify at trial. The departure need not be to a foreign country — travel to another state within the same nation, or in the British context from England to Scotland, has historically sufficed to qualify a witness as "going." The practical consequence of this status is that a party may be entitled to take the witness's deposition before trial, even though discovery or pre-trial examination would not otherwise be available at that procedural stage.
The concept is procedural rather than substantive: it does not change what a witness may say or whether their testimony is admissible. It changes when and how that testimony may be captured to preserve it for use at trial.
Common Confusion
"Going witness" is sometimes loosely equated with an "absent witness" or an "unavailable witness," but these are distinct categories. An absent witness is already gone — unreachable at the time testimony is needed. A going witness is still present but about to leave. The procedural significance of the distinction is substantial: a party invoking the going-witness doctrine must act before departure to obtain the deposition, whereas rules governing absent or unavailable witnesses apply after the fact, at trial, when a party seeks to introduce prior testimony or other substitutes. Conflating the terms in historical sources can cause a researcher to misread the procedural posture of a case.
Why It Matters in Research
This term is almost exclusively a term of art in historical equity and common law procedure, and its practical significance has largely been absorbed into modern civil procedure frameworks — particularly the rules governing depositions and perpetuation of testimony. Researchers working with pre-twentieth-century case law, especially in chancery or equity courts, will encounter "going witness" as a recognized ground for obtaining emergency or early depositions. Understanding it in context is essential to reading those procedural rulings correctly.
Several traps exist for researchers:
The jurisdictional threshold was deliberately low. Both Black's and Bouvier's make clear that crossing a state line — or moving from England to Scotland — was enough. This reflects an era when courts had no reliable mechanism to compel out-of-state witnesses to appear, and no equivalent of modern interstate subpoena enforcement. Do not read "leaving the jurisdiction" in historical sources to mean only international departure.
The doctrine connects directly to deposition practice. When historical sources reference depositions taken de bene esse (conditionally, to preserve testimony), going-witness status is frequently the predicate. A researcher tracing a deposition's admissibility in an old case will often find the justification rooted in a contemporaneous showing that the witness was about to depart.
Modern civil procedure has largely replaced this doctrine without using the term. Federal Rule of Civil Procedure 27 (perpetuation of testimony before action) and Rule 30 (depositions) address the same functional concern through a general framework rather than the specific going-witness category. State practice varies. Researchers should not assume that a modern court would use the term, even when the underlying situation is identical.
The corpus connection to criminal procedure is worth flagging. In criminal cases, the right to compulsory process and the Confrontation Clause both bear on whether a deposition taken from a going witness can be used against a defendant. Historical criminal practice recognized going-witness depositions, but their modern use in criminal proceedings involves significant constitutional constraints that were not present in the nineteenth-century sources.
Historical Dictionary Support
Black's and Bouvier's definitions are in close agreement, tracking each other almost verbatim. Bouvier's citation to 2 Dick. Ch. 454 grounds the doctrine in English chancery practice, which is the primary source. Both definitions emphasize the key counterintuitive point: the witness need not be leaving national territory — crossing into a jurisdiction where the court cannot compel attendance is enough.
What the historical dictionaries do not address: neither source discusses what showing a party must make to invoke the doctrine (imminence of departure, lack of alternative, etc.), nor do they address the procedural mechanics of taking the deposition itself. Researchers needing that level of detail should consult contemporaneous treatises on equity practice and deposition procedure rather than the dictionary definitions alone.
Neither source grapples with the post-codification world or the eventual displacement of the doctrine by general deposition rules. This is a gap, not an error — the definitions are period-appropriate — but researchers must supply the modern doctrinal context themselves.
Jurisdictional Note
Modern relevance varies significantly by jurisdiction. Federal courts and most states have folded the going-witness concern into general deposition and perpetuation-of-testimony rules without preserving the specific terminology. Some older state codes and equity court rules may still reference the concept explicitly. Researchers working in states with strong equity court traditions or unreformed procedural codes should check local rules before assuming the term is purely archaic.
Encyclopedia Cross-Reference
The Law Mind Criminal Law Encyclopedia: Compulsory Process — Right to Present Defense Witnesses
The Law Mind Civil Procedure & Evidence Encyclopedia: Competency of Witnesses — Rule 601 and Dead Man's Statutes