Testimony, Witnessing

doi:10.1017/CBO9780511657535.019

18 - Testimony, Witnessing

Published online by Cambridge University Press: 20 January 2010

Edited by

Matthew Anderson and

Austin Sarat: Affiliation:
Amherst College, Massachusetts
Matthew Anderson: Affiliation:
University of New England, Maine
Cathrine O. Frank: Affiliation:
University of New England, Maine

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Summary

“Testimony” is a richly multivalent term. It describes the statement of a witness in court, “offered as evidence of the truth of that which is stated;” but it is also a profession of religious faith, and a story habitually narrated in the first person by those who seek to bear witness to the role of traumatic events in the formation of larger historiographical narratives. This is the essential ambiguity of the term “testimony”: That it not only encompasses narratives of personal experience, which require no immediate external verification, but that it also seeks to be regarded as a species of evidence – that it is articulated in a public forum with a view to establishing its “truth.” Indeed, jurists acknowledge that there is a sense in which testimony is the sole medium of judicial evidence: Putative distinctions between testimony and circumstantial or documentary evidence founder upon the requirement that documents and things produced in court must nevertheless be described (and their provenance accounted for) by a witness.

The centrality of testimony to the trial process has ensured the emergence of cogent rules to test its validity, which often operate simultaneously to suppress its similarities to narrative fiction and story. Current Anglo-American law is concerned to establish the competence and compellability of a potential witness to the fact at issue: Competence relates to whether or not a party may be permitted to testify, and compellability refers to whether or not that party may be forced to do so by the service of witness summons and the provision of sanctions in the event that such a summons is ignored.

Type: Chapter
Information: Law and the Humanities
An Introduction
, pp. 478 - 495

DOI: https://doi.org/10.1017/CBO9780511657535.019 [Opens in a new window]

Publisher: Cambridge University Press

Print publication year: 2009

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References

Tapper, Colin, Cross and Tapper on Evidence, 7th ed. (Oxford: Oxford University Press, 2007) 57Google Scholar

Brooks, Peter, “The Law as Narrative and Rhetoric,” Law's Stories: Narrative and Rhetoric in the Law, Brooks, Peter and Gewirtz, Paul, eds. (New Haven and London: Yale University Press, 1996) 19–20Google Scholar

Thayer, James Bradley, A Preliminary Treatise on Evidence at the Common Law (London: Sweet & Maxwell, 1898) 518–9Google Scholar

Schramm, Jan-Melissa, Testimony and Advocacy in Victorian Law, Literature, and Theology (Cambridge: Cambridge University Press, 2000) 48–56Google Scholar

Stone, Julius, Evidence: Its History and Policies, rev. by Wells, W. A. N. (Sydney: Butterworth, 1991) 1–11Google Scholar

Green, Thomas A., Verdict According to Conscience: Perspectives on the English Criminal Trial Jury 1200–1800 (Chicago: University of Chicago Press, 1985) 3–27CrossRef Google Scholar

Green, Thomas A. and Cockburn, J. S., eds., Twelve Good Men and True: The Criminal Trial Jury in England, 1200–1800 (Princeton: Princeton University Press, 1988) 358–99

Blackstone, William, Commentaries on the Laws of England, 4 vols. (Oxford: Clarendon Press, 1765–1769) vol. III, 359–60 and 374–5Google Scholar

Shapiro, Barbara, The Culture of Fact: England 1550–1720 (Chicago: University of Chicago Press, 2001)Google Scholar

Goodrich, Peter, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London and New York: Routledge, 1996)Google Scholar

Beattie, John, Crime and the Courts in England 1660–1800 (Oxford: Clarendon Press, 1986) 378Google Scholar

Beattie, , “Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth Centuries,” Law and History Review 9 (1991) 221–67CrossRef Google Scholar

Landsman, Stephan, “The Rise of the Contentious Spirit: Adversary Procedure in Eighteenth-Century England,” Cornell Law Review 75 (1990) 497–609Google Scholar

Langbein, John, The Origins of Adversary Criminal Trial (Oxford: Oxford University Press, 2003)Google Scholar

Fielding, Henry, “An Enquiry into the Late Increase in Robbers,” An Enquiry into the Late Increase in Robbers and Related Writings, Zirker, Malvin R., ed. (Oxford: Clarendon Press, 1988) 158Google Scholar

Allen, Christopher, The Law of Evidence in Victorian England (Cambridge: Cambridge University Press, 1997) 1Google Scholar

Cairns, David J. A., Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Oxford: Oxford University Press)CrossRef

Joy, Henry, On the Admissibility of Confessions and Challenge of Jurors in Criminal Cases in England and Ireland (Dublin: Milliken, 1842)Google Scholar

Bentham, Jeremy, A Rationale of Judicial Evidence, Specially Applied to English Practice, 5 vols. (London: Hunt & Clarke, 1827) vol. IV, 490–2Google Scholar

Langbein, John H., Torture and the Law of Proof: Europe and England in the Ancien Régime (Chicago: University of Chicago Press, 1976; repr. 2006) ch. 1Google Scholar

Rousseau, Jean-Jacques, Les Confessions [1782–88] (Gallimard, 1959) 33–4Google Scholar

Brooks, Peter, Troubling Confessions: Speaking Guilt in Law and Literature (Chicago: University of Chicago Press, 2000)Google Scholar

Dart, Gregory, Rousseau, Robespierre, and English Romanticism (Cambridge: Cambridge University Press, 1999) 9CrossRef Google Scholar

Godwin, William, Enquiry Concerning Political Justice, and its Influence on General Virtue and Happiness, 2 vols. (London: Robinson, 1793) vol. I, 275Google Scholar

McKeon, Michael, The Origins of the English Novel, 1600–1740 (Baltimore: Johns Hopkins University Press, 1987) 104–5 and 109Google Scholar

Shapin, Steven, A Social History of Truth: Civility and Science in Seventeenth-Century England (Chicago: University of Chicago Press, 1994)Google Scholar

Richardson, Samuel, Clarissa [1748] (Harmondsworth: Penguin, 1985) 240Google Scholar

Castle, Terry, Clarissa's Ciphers: Meaning and Disruption in Richardson's Clarissa (Ithaca: Cornell University Press, 1982) 67Google Scholar

Cornett, Judy, “The Treachery of Perception: Evidence and Experience in Clarissa,” University of Cincinnati Law Review 63 (1994), no. 1, 165–93 at 190–2Google Scholar

Bakhtin, Mikhail, The Dialogic Imagination: Four Essays, Emerson, Caryl and Holquist, Michael, trans. (Austin: University of Texas Press, 1981; repr. 1998) 48Google Scholar

Brantlinger, Patrick, The Reading Lesson: The Threat of Mass Literacy in Nineteenth-Century British Fiction (Bloomington: Indiana University Press, 1998) 77–83Google Scholar

Miller, D. A., The Novel and the Police (Berkeley: University of California Press, 1988)Google Scholar

Watt, Ian, The Rise of the Novel (London: Chatto & Windus, 1957) 31Google Scholar

Doody, Margaret Anne, The True Story of the Novel (London: Fontana, 1996; repr. 1998) 1–2Google Scholar

Welsh, Alexander, Strong Representations: Narrative and Circumstantial Evidence in England (Baltimore: Johns Hopkins University Press, 1992) 49Google Scholar

Bender, John, “Novel Knowledge: Judgment, Experience, Experiment,” in Siskin, Clifford and Warner, William, eds., This Is Enlightenment, forthcoming from University of Chicago Press, 2010Google Scholar

Grossman, Jonathan H., The Art of Alibi: English Law Courts and the Novel (Baltimore: Johns Hopkins Press, 2002)Google Scholar

Bell, Ian, Literature and Crime in Augustan England (London: Routledge, 1991) 204Google Scholar

Collins, Wilkie, The Woman in White [1860] (Oxford: Oxford University Press, 1996) 5Google Scholar

Thomas, Ronald, Detective Fiction and the Rise of Forensic Science (Cambridge: Cambridge University Press, 1999) ch. 1Google Scholar

Sennett, Richard, The Fall of Public Man (Cambridge: Cambridge University Press, 1977)Google Scholar

Rodensky, Lisa in The Crime in Mind: Criminal Responsibility and the Victorian Novel (Oxford: Oxford University Press, 2004)Google Scholar

“‘The Anatomy of a Barrister's Tongue’: Rhetoric, Satire, and the Victorian Bar in England,” Victorian Literature and Culture (2004) 287–305

Dimock, Wai Chee, Residues of Justice: Literature, Law, Philosophy (Berkeley: University of California Press, 1996)Google Scholar

Goodrich, Peter, Law in the Courts of Love: Literature and Other Minor Jurisprudences (London: Routledge, 1996)Google Scholar

Polloczek, Dieter Paul, Literature and Legal Discourse: Equity and Ethics from Sterne to Conrad (Cambridge: Cambridge University Press, 1999)CrossRef Google Scholar

Trollope, Anthony, Orley Farm [1862] (London: Folio, 1993) 86Google Scholar

May, Allyson, The Bar and the Old Bailey, 1750–1850 (Chapel Hill: University of North Carolina Press, 2003) ch. 4Google Scholar

Dickens, Charles, Bleak House [1852–3] (Oxford: Oxford University Press, 1948; repr. 1978) ch. Lii, 706–7Google Scholar

Krielkamp, Ivan, Voice and the Victorian Storyteller (Cambridge: Cambridge University Press, 2006) 1–7Google Scholar

Brooks, Peter, The Melodramatic Imagination: Balzac, Henry James, Melodrama, and the Mode of Excess (New Haven: Yale University Press, 1976; repr. 1995) 27Google Scholar

John, Juliet, Dickens' Villains: Melodrama, Character, Popular Culture (Oxford: Oxford University Press, 2001) 3, 9CrossRef Google Scholar

Pattison, Mark, “Tendencies of Religious Thought in England 1688–1750,” in Essays and Reviews (London: Parker, 1860) 259Google Scholar

Bakhtin, Mikhail, Problems of Dostoevsky's Poetics, Emerson, Caryl, ed. and trans. (Minneapolis: Minnesota University Press, 1984) 58CrossRef Google Scholar

Kucich, John, The Power of Lies: Transgression in Victorian Fiction (Ithaca: Cornell University Press, 1994) 18Google Scholar

Felman, Shoshana and Laub, Dori, Testimony: Crises of Witnessing in Literature, Psychoanalysis, and History (New York: Routledge, 1992) 5Google Scholar

Wiesel, Elie, ed., Dimensions of the Holocaust (Evanston: Northwestern University Press, 1977) 9

Weisberg, Richard, “Editor's Preface,” Cardozo Studies in Law and Literature 3 (1991) no. 2, i–iiiGoogle Scholar

Bingham, Tom, “Assessing Contentious Eyewitness Evidence: A Judicial View,” Witness Testimony: Psychological, Investigative, and Evidential Perspectives, Heaton-Armstrong, Anthony et al., eds. (Oxford: Oxford University Press, 2006) 327–43Google Scholar