Definition
In initialibus (Latin: "in the preliminaries") is a term from Scots law describing the preliminary examination of a witness conducted before substantive testimony is taken. The examination probes the witness's competency and credibility by testing for bias, interest, and corruption. Specifically, the examination asks whether the witness: (1) knows the parties to the cause; (2) bears ill will toward either party; (3) has received, or has been promised, any reward in connection with what the witness may say; (4) stands to gain or lose by the outcome of the cause; or (5) has been instructed by any person what to say. A witness who answers these questions satisfactorily is deemed qualified to proceed to substantive testimony.
The examination in initialibus is functionally analogous to the voir dire of a witness in common law practice — a threshold competency inquiry that precedes, and is legally distinct from, examination on the merits.
Common Confusion
In initialibus is sometimes loosely equated with voir dire, but the two procedures are not identical. Voir dire in common law systems covers a broader range of competency challenges and is applied to jurors as well as witnesses. In initialibus was specific to Scots civil and criminal procedure and was framed around a defined, standardized set of questions focused on partiality, interest, and external influence. The term should not be imported into common law analysis as a synonym.
Why It Matters in Research
This term appears almost exclusively in historical materials connected to Scots law, Scots-influenced civil procedure, and comparative treatments of witness examination. Researchers working with Scottish legal records, pre-codification treatises on evidence, or comparative law materials from the seventeenth through nineteenth centuries are most likely to encounter it.
Several navigational points are worth noting:
First, the term drops out of modern legal usage almost entirely. It will not appear in contemporary statutes, rules of civil procedure, or modern case law. When it surfaces, the surrounding material is almost certainly historical, ecclesiastical, or comparative in character.
Second, researchers should be alert to the relationship between in initialibus examination and the broader Scots law treatment of witness credibility. Scots procedure historically drew a sharper formal line between the threshold competency inquiry and substantive examination than English common law did. The in initialibus examination was a procedural gate, not merely a rhetorical strategy of cross-examination.
Third, the phrase can appear in slightly varied Latin forms or in anglicized paraphrase ("preliminary examination," "examination in the preliminaries") in historical sources that discuss Scots practice without using the technical term. Cross-referencing both the Latin and the English gloss will improve corpus search results.
Fourth, researchers working on the history of evidence law more broadly will find in initialibus useful as a point of comparison when tracing how different legal traditions handled the problem of witness bias and interest — a problem that produced the witness competency rules and the modern prohibition on interested-witness disqualification in common law systems.
Historical Dictionary Support
Black's Law Dictionary (both the first and second editions) and Burrill's Law Dictionary are in close agreement on this term. All three sources define it as a term of Scots practice, provide the same Latin gloss ("in the preliminaries"), and enumerate substantially identical categories of preliminary inquiry: knowledge of the parties, ill will, reward or promise of reward, personal gain or loss in the cause, and prior instruction on what to say. The uniformity across sources suggests these dictionaries drew from a common tradition in Scots legal writing rather than from independent analysis.
What the historical dictionaries do not supply: none of the three sources discusses how the examination was conducted in practice — whether it was administered orally by the judge, by counsel, or by a clerk; how the witness's answers were recorded; or what procedural consequence followed an unsatisfactory answer beyond the implied disqualification. Researchers seeking procedural detail will need to go beyond these dictionary entries to primary Scots legal treatises.
Jurisdictional Note
In initialibus is a term of Scots law and has no direct counterpart in English common law or American procedure. It should not be assumed to reflect practice in any common law jurisdiction. Researchers working in mixed legal systems (such as South African or Louisiana law) that have Scots or Roman-Dutch influences may occasionally encounter the concept in analogous form, but the specific terminology is characteristically Scottish.