§ SECTION 125 · BSA 2023 · CHAPTER IX — OF WITNESSES

Witness unable to communicate verbally

A witness who cannot speak is not shut out. He may give evidence in any manner he can make intelligible — by writing or signs, made in open court — and it counts as oral evidence. The BSA adds a mandatory safeguard: an interpreter or special educator, and the statement is videographed.

How to read Section 125

A witness who cannot speak testifies by writing or signs in open court — it is oral evidence; and the BSA requires an interpreter/special educator and videography.

Still a witness

One who cannot speak may give evidence by writing or signs — any way he can make it intelligible.

In open court, as oral

The writing must be written, and the signs made, in open court; such evidence is deemed to be oral evidence.

The BSA safeguard

If the witness cannot communicate verbally, the court shall take an interpreter or special educator, and the statement shall be videographed.

The bare Act

The section in its own words — the mode of testifying, and a mandatory proviso.

Section 125 · verbatim

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs; but such writing must be written and the signs made in open Court and evidence so given shall be deemed to be oral evidence:

Proviso.—Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.

In short: being unable to speak is no bar to being a witness — it only changes the mode of testifying. Such a witness may give evidence in any manner that makes it intelligible, typically by writing or by signs. Two conditions keep it fair and public: the writing must be written, and the signs made, in open court; and evidence so given is deemed to be oral evidence — so it is tested like any oral testimony, including by cross-examination. The BSA then adds a mandatory modern safeguard by proviso: where the witness cannot communicate verbally, the court shall (not may) take the assistance of an interpreter or a special educator in recording the statement, and that statement shall be videographed — protecting both the accuracy of the record and the witness’s access to justice.

→ This carries forward IEA 1872 § 119 — now with the interpreter / special-educator and videography safeguard.

Glossary

unable to speak

A witness who cannot give testimony by voice.

make it intelligible

Convey the evidence so it can be understood by the court.

by writing or by signs

The permitted alternative modes of giving evidence.

in open Court

Done publicly before the court — the writing written, the signs made, in the courtroom.

deemed to be oral evidence

Treated in law as oral evidence — so open to cross-examination like any oral testimony.

interpreter / special educator · videographed

A helper who conveys the witness’s evidence accurately; and the statement is video-recorded (BSA safeguard).

The picture

Inability to speak changes only the mode — the evidence is given openly, treated as oral, and recorded with expert help.

The section, part by part

Tap a part — the picture-story tells it first; the word-by-word text and example follow.

The modeThe BSA safeguard

the modeWriting or signs, in open court — and it counts as oral evidence

In one lineA witness who cannot speak may testify by writing or signs made in open court, in any way he can make intelligible — and it is deemed to be oral evidence.

A witness who is unable to speak may give his evidence in any other manner in which he can make it intelligible, as by writing or by signs;he may testify in any intelligible manner…writing or signs are examples — the test is only that the court can understand it.

but such writing must be written and the signs made in open Court and evidence so given shall be deemed to be oral evidence:→ but in open court, and it is oral evidencethe writing/signs must be done in open court, and the evidence is deemed oral — tested like any oral testimony.

ExampleA witness who cannot speak writes his answers on paper in the witness box, or gives them by signs. The court reads/records them; they are treated as oral evidence and the other side may cross-examine in the same way.

✗ Not thisThis is not a private or written-affidavit route. The writing must be written, and the signs made, in open court — and the evidence is oral, not documentary, so it is fully open to cross-examination.

the safeguardThe BSA proviso: interpreter / special educator, and videography — mandatory

In one lineWhere the witness cannot communicate verbally, the court shall take the help of an interpreter or special educator to record the statement, and that statement shall be videographed.

Provided that if the witness is unable to communicate verbally, the Court shall take the assistance of an interpreter or a special educator in recording the statement, and such statement shall be videographed.mandatory: expert help + video recordthe BSA adds a duty on the court — use an interpreter/special educator, and videograph the statement.

ExampleA witness with a speech-and-hearing disability testifies with a special educator who conveys the questions and records the answers; the whole statement is video-recorded, giving an accurate, reviewable record.

✗ Not thisThe interpreter/special educator and the videography are not optional. The section says the court shall do both — a modern, mandatory safeguard the old IEA § 119 did not contain.

Connected provisions

§ 124 · back

IEA 1872, § 119

Carried forward — now with the interpreter / special-educator and videography safeguard.

BSA 2023 § 125 — Witness unable to communicate verbally