) signifies the deposition of a witness, who, by reason
of absence abroad, or illness (ὑπερορίου καὶ
Lex ap. Dem. c. Steph.
1131.9), was unable to attend in court. His statement was taken down in
writing, in the presence of persons expressly appointed to receive it, and
afterwards, upon their swearing to its identity, was read as evidence in the
cause. They were said μαρτυρεῖν τὴν
: the absent witness, ἐκμαρτυρεῖν
: the party who procured the evidence, ἐκμαρτυρίαν ποιεῖσθαι
It was considered as the
testimony of the deponent himself, not that of the certifying witnesses, and
therefore did not come within the description of hearsay evidence, which
(except the declaration of a deceased person) was not admissible at Athens
[AKOÈN MARTYREIN, p. 94]. The
deponent (like any other witness) was liable to an action for false
testimony if the contents of the deposition were untrue, unless he could
show that it was incorrectly taken down or forged, in which case the
certifying witnesses would be liable. Therefore (Isaeus tells us) it was
usual to select persons of good character to receive such evidence, and to
have as many of them as possible. An ἐκμαρτυρία
was allowed to a witness about to start on a
journey, if he could not conveniently wait (Isae. Or.
], § 20). The form of
or what purports to be
such, occurs Dem. c. Lacrit.
p. 929.20; 934.34. (Isae.
§ 20-27; Dem. c. Steph.
i. pp. 1130, 1131,
§ § 7, 8; Aeschin. de F. L.
Harpocrat. s. v.; Att. Process,
p. 670 = 879 Lips.)