The Concept of a Witness: Comparative Law Observations

Being a witness in a case that is the subject of court or administrative proceedings entails significant procedural consequences for such a person, especially related to the prohibition of combining specific procedural roles and the obligation to appear when summoned. For this reason, it is extremely important to precisely determine what features or events determine whether a given entity has the status of a witness. However, the term “witness” does not have one, universal meaning in Polish. First of all, there is the concept of a witness in the factual sense and the concept of a witness in the legal sense. Furthermore, a witness in the legal sense is not a uniform institution, because legal regulations allow us to distinguish between an active witness and a passive witness, whose procedural functions are completely different. Even the referents of the name “active witness” have different constitutive features depending on the branch of procedural law. Regardless of this, within the criminal procedure itself, there are special categories of active witnesses, with specific rights and obligations or modes of examining: incognito witness, state’s evidence and injured party.