FIFTH AMENDED AND RESTATED
                          CERTIFICATE OF INCORPORATION
                                       OF
                              WITNESS SYSTEMS, INC.
 
         WITNESS SYSTEMS, INC., a corporation organized and existing under the
laws of the State of Delaware, HEREBY CERTIFIES as follows:
 
         1.       The name of the corporation is Witness Systems, Inc. (the
"Corporation") and the name under which the corporation was originally
incorporated was "Witness Systems Delaware, Inc." The date of filing of its
original Certificate of Incorporation with the Secretary of State was March 13,
1997.
 
         2.       This Fifth Amended and Restated Certificate of Incorporation
restates and integrates and further amends the Certificate of Incorporation as
amended or supplemented heretofore to read in its entirety as follows:
 
                  FIRST:   The name of the corporation is Witness Systems, Inc.
(the "Corporation").
 
                  SECOND:  The address of the registered office of the
Corporation in the State of Delaware is 1209 Orange Street, Corporation Trust
Center, in the City of Wilmington 19801, County of New Castle. The name of the
registered agent of the Corporation at such address is The Corporation Trust
Company.
 
                  THIRD:   (a)      The nature of the business or purposes to be
conducted or promoted by the Corporation is to engage in any lawful business,
act or activity for which corporations may be organized under the General
Corporation Law of the State of Delaware.
 
                           (b)      The private property of the stockholders
shall not be subject to the payment of corporate debts to any extent whatsoever.
 
                  FOURTH:  The total number of shares of all classes of capital
stock which the Corporation shall have authority to issue is 60,000,000 shares,
which shall consist of (i) 50,000,000 shares of common stock, at a par value of
one cent ($.01) per share ("Common Stock"), and (ii) 10,000,000 shares of
preferred stock, at a par value of one cent ($.01) per share ("Preferred
Stock"). The following is a description of the limitations and relative rights
of the respective classes of authorized capital stock and a statement of the
designations, preferences, voting powers (or no voting powers), relative,
participating, optional or other special rights and privileges and the
qualifications, limitations and restrictions of the respective classes of
authorized capital stock.
 
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         A.       PREFERRED STOCK
 
                  The Board of Directors is hereby expressly authorized, by
resolution or resolutions from time to time adopted, to provide, out of the
unissued shares of Preferred Stock, for the issuance of serial Preferred Stock.
Before any shares of any such series are issued, the Board of Directors shall
fix and state, and hereby is expressly empowered to fix, by resolution or
resolutions, the designations, preferences, and relative, participating,
optional or other special rights of the shares of each such series, and the
qualifications, limitations or restrictions thereon, including but not limited
to, determination of any of the following:
 
                  (a)      the designation of such series, the number of shares
to constitute such series and the stated value thereof if different from the par
value thereof;
 
                  (b)      whether the shares of such series shall have voting
rights, in addition to any voting rights provided by law, and, if so, the terms
of such voting rights, which may be full or limited;
 
                  (c)      the dividends, if any, payable on such series and at
what rates, whether any such dividends shall be cumulative, and, if so, from
what dates, the conditions and dates upon which such dividends shall be payable,
the preference or relation which such dividends shall bear to the dividends
payable on any shares of stock of any other class or any other series of this
class;
 
                  (d)      whether the shares of such series shall be subject to
redemption by the corporation, and, if so, prices and other terms and conditions
of such redemption;
 
                  (e)      the amount or amounts payable upon shares of such
series upon, and the rights of the holders of such series in, the voluntary or
involuntary liquidation, dissolution or winding up of, or upon any distribution
of the assets of, the corporation;
 
                  (f)      whether the shares of such series shall be subject to
the operation of a retirement of sinking fund and, if so, the extent to and
manner in which any such retirement of sinking fund shall be applied to the
purchase or redemption of the shares of such series for retirement or other
corporate purposes and other terms and provisions relative to the operation
thereof;
 
                  (g)      whether the shares of such series shall be
convertible into, or exchangeable for, shares of stock of any other class or any
other series of this class or any other class or classes of securities and, if
so, the price or prices or the rate or rates of conversion or exchange and the
method, if any, of adjusting the same, and any other terms and conditions of
conversion or exchange;
 
                  (h)      the limitations and restrictions, if any, to be
effective while any shares of such series are outstanding upon the payment of
dividends or the taking of other distributions on, and upon the purchase,
redemption or other acquisition by the corporation of, the Common Stock or
shares of stock of any other class or any other series of this class;
 
                  (i)      the conditions or restrictions, if any, upon the
creation of indebtedness of the corporation or upon the issue of any additional
stock, including additional shares of such series or any other series of this
class or of any other class; and
 
 
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<PAGE>   3
                  (j)      any other powers, preferences and relative,
         participating, optional and other special rights and any
         qualifications, limitations and restrictions thereof.
 
                  The powers, preferences and relative, participating, optional
         and other special rights of each series of Preferred Stock, and the
         qualifications, limitations or restrictions thereof, if any, may differ
         from those of any and all other series at any time outstanding. All
         shares of any one series of Preferred Stock shall be identical in all
         respects with all other shares of such series, except that shares of
         any one series issued at different times may differ as to the date from
         which dividends thereof shall be cumulative. The Board of Directors may
         increase the number of shares of the Preferred Stock designated for any
         existing series by a resolution adding to such series authorized and
         unissued shares of the Preferred Stock not designated for any other
         series. The Board of Directors may decrease the number of shares of
         Preferred Stock designated for any existing series by a resolution,
         subtracting from such series unissued shares of the Preferred Stock
         designated for such series, and the shares so subtracted shall become
         authorized, unissued and undesignated shares of the Preferred Stock.
 
         B.       COMMON STOCK
 
         B1.      Priority. All preferences, voting powers, relative,
participating, optional or other special rights and privileges, and
qualifications, limitations, or restrictions of the Common Stock are expressly
made subject and subordinate to those that may be fixed with respect to any
shares of the Preferred Stock.
 
         B2.      Voting Rights. Except as otherwise required by law or this
Certificate of Incorporation, each holder of Common Stock shall have one vote in
respect of each share of stock held by such stockholder of record on the books
of the Corporation for the election of directors and on all matters submitted to
a vote of stockholders of the Corporation. Except as may be otherwise provided
in this Certificate of Incorporation or by law, the Common Stock shall vote
together with all other classes and series of stock of the Corporation as a
single class on all actions to be taken by the stockholders of the Corporation.
The number of authorized shares of Common Stock may be increased or decreased
(but not below the number of shares thereof then outstanding or reserved for the
exercise of options or warrants or conversion of the Preferred Stock) by the
affirmative vote of the holders of a majority of the stock of the Corporation
entitled to vote, voting together as a single class, irrespective of the
provisions of Section 242(b)(2) of the Delaware General Corporation Law.
 
         B3.      Dividends. Subject to the preferential rights of the Preferred
Stock, the holders of shares of Common Stock shall be entitled to receive, when,
as and if declared by the Board of Directors of the Corporation, out of the
assets of the Corporation which are by law available therefor, dividends payable
either in cash, in property or in shares of capital stock.
 
                  FIFTH:   No holder of shares of stock of the Corporation shall
have any preemptive or other right to receive any securities of the Corporation.
 
                  SIXTH:   The business and affairs of the Corporation shall be
managed by and under the direction of the Board of Directors. The exact number
of directors of the Corporation shall be determined from time to time by a Bylaw
or amendment thereto provided that the number of directors shall not be reduced
to less than three (3), except that there need be only as many directors as
there are stockholders in the event that the outstanding shares are held of
record by fewer than three (3) stockholders. Elections of directors need not be
by written ballot unless the Bylaws of the Corporation shall so provide. The
Board of Directors shall be divided into three classes to be known as Class I,
Class
 
 
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<PAGE>   4
 
II and Class III. The Board shall, by resolution, determine who, among the
members of the Board shall initially serve in each class. Except in the case of
death, resignation, disqualification or removal, each Director shall serve for a
term ending on the date of the third annual meeting of shareholder following the
annual meeting at which the Director was elected; provided, however, that each
initial Director in Class I shall hold office until the 2000 annual meeting of
shareholders, each initial Director in Class II shall hold office until the 2001
annual meeting of shareholders, and each initial Director in Class III shall
hold office until the 2002 annual meeting of shareholders. In the event of any
increase or decrease in the authorized number of Directors, the newly created or
eliminated directorships resulting from such an increase or decrease shall be
apportioned among the three classes of Directors; provided, however, that there
shall be no classification of additional Directors elected by the Board of
Directors until the next meeting of shareholders called for the purposes of
electing Directors, at which meeting the terms of all such additional Directors
shall expire, and such additional Director positions, if they are to be
continued, shall be apportioned amount the classes of Directors, and nominees
therefor shall be submitted to the shareholders for their vote.
 
                  SEVENTH: Except as may otherwise be set forth in Article Sixth
above, each director shall serve until his successor is elected and qualified or
until his death, resignation or removal; no decrease in the authorized number of
directors shall shorten the term of any incumbent director; and additional
directors shall not be included in any class, but shall serve for such term or
terms and pursuant to such other provisions as are specified in the resolution
of the Board of Directors establishing such series. Any stockholder proposals
and nominations for the election of a director by a stockholder shall be
delivered to the Corporate Secretary of the Corporation no less than ninety (90)
days nor more than one hundred twenty (120) days in advance of the first
anniversary of the Company's annual meeting held in the prior year; provided,
however, that in the event the Company shall not have had an annual meeting in
the prior year, such notice shall be delivered no less than ninety (90) days nor
more than one hundred twenty (120) days in advance of May 15 of the current
year. Such stockholder nominations must contain (a) as to each person whom the
stockholder proposes to nominate for election or re-election as a director at
the annual meeting: (w) the name, age, business address and residence address of
the proposed nominee, (x) the principal occupation or employment or the proposed
nominee, (y) the class and number of shares of capital stock of the Corporation
which are beneficially owned by the proposed nominee, and (z) any other
information relating to the proposed nominee that is required to be disclosed in
solicitations for proxies for election of directors pursuant to Rule 14a under
the Securities Exchange Act of 1934, as amended; and (b) as to the stockholder
giving notice of nominees for election at the annual meeting, (x) the name and
record address of the stockholder, and (y) the class and number of shares of
capital stock of the Corporation which are beneficially owned by the
stockholder.
 
                  EIGHTH:  Newly created directorships resulting from any
increase in the number of directors, or any vacancies on the Board of Directors
resulting from death, resignation, removal or other causes, shall be filled
solely by the affirmative vote of a majority of the remaining directors then in
office, even though less than a quorum of the Board of Directors. Any director
elected in accordance with the preceding sentence shall hold office for the
remainder of the full term of the class of directors in which the new
directorship was created or the vacancy occurred and until such director's
successor shall have been elected and qualified or until such director's death,
resignation or removal, whichever first occurs.
 
                  NINTH:   Any director may be removed from office by the
affirmative vote of the holders of sixty-six and two-thirds percent (66 2/3%) of
the outstanding shares of voting stock of the Corporation entitled to vote at an
election of directors, provided that such removal is for cause.
 
 
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<PAGE>   5
 
                  TENTH: In furtherance of, and not in limitation of, the
powers conferred by statute, the Board of Directors is expressly authorized to
adopt, amend or repeal the Bylaws of the Corporation or adopt new Bylaws,
without any action on the part of the stockholders. Notwithstanding the
foregoing, the Bylaws may be adopted, rescinded, altered or amended in any
respect by the stockholders of the Corporation, but only by the affirmative vote
of the holders of not less than a 66 2/3% majority of the voting power of all
outstanding shares of voting stock of the Corporation entitled to vote at an
election of directors.
 
                  ELEVENTH: The Corporation is to have perpetual existence.
 
                  TWELFTH: Meetings of stockholders of the Corporation may be
held within or without the State of Delaware, as the Bylaws may provide;
stockholders shall only take action by meetings held pursuant to this
Certificate of Incorporation and the Bylaws and shall have no right to take any
action by written consent without a meeting. The books of the Corporation may be
kept (subject to any provision of applicable law) outside the State of Delaware
at such place or places as may be designated from time to time by the Board of
Directors or in the Bylaws.
 
                  THIRTEENTH: For the purposes of this Certificate of
Incorporation, the terms "affiliate," "associate," "control," "interested
stockholder," "owner," "person" and "voting stock" shall have the meanings set
forth in Section 203(c) of the Delaware General Corporation Law.
 
                  FOURTEENTH: The provisions set forth in this Article
Fourteenth and in Articles Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth,
Eleventh, Fifteenth and Sixteenth hereof may not be repealed, rescinded, altered
or amended in any respect, and no other provision or provisions may be adopted
which impair(s) in any respect the operation or effect of any such provision,
except by the affirmative vote of the holders of a sixty-six and two-thirds
percent (66 2/3%) majority of the voting power of all outstanding shares of
voting stock of the Corporation entitled to vote at an election of directors.
 
                  FIFTEENTH: The Corporation reserves the right to adopt,
repeal, rescind, alter or amend in any respect any provision contained in this
Certificate in the manner now or hereafter prescribed by applicable law, and all
rights conferred on stockholders herein are granted subject to this reservation.
Notwithstanding the preceding sentence, the provisions set forth in Articles
Fourth, Fifth, Sixth, Seventh, Eighth, Ninth, Tenth, Eleventh, Twelfth,
Fifteenth and Sixteenth may not be repealed, rescinded, altered or amended in
any respect, and no other provision or provisions may be adopted which impair(s)
in any respect the operation or effect of any such provision, unless such action
is approved as specified in Article Fourteenth hereof.
 
                  SIXTEENTH: To the fullest extent permitted by applicable law,
this Corporation is authorized to provide indemnification of (and advancement of
expenses to) directors, officers, employees and agents (and any other persons to
which Delaware law permits this Corporation to provide indemnification) through
Bylaw provisions, agreements with such agents or other persons, vote of
stockholders or disinterested directors or otherwise, in excess of the
indemnification and advancement otherwise permitted by Section 145 of the
Delaware General Corporation Law, subject only to limits created by applicable
Delaware law (statutory or non-statutory), with respect to action for breach of
duty to the Corporation, its stockholders, and others.
 
                  No director of the Corporation shall be personally liable to
the Corporation or any stockholder for monetary damages for breach of fiduciary
duty as a director, except for any matter in respect of which such director
shall be liable under Section 174 of the Delaware General Corporation
 
 
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<PAGE>   6
 
Law or any amendment thereto or shall be liable by reason that, in addition to
any and all other requirements for such liability, such director (1) shall have
breached the director's duty of loyalty to the Corporation or its stockholders,
(2) shall have acted in a manner involving intentional misconduct or a knowing
violation of law or, in failing to act, shall have acted in a manner involving
intentional misconduct or a knowing violation of law, or (3) shall have derived
an improper personal benefit. If the Delaware General Corporation Law hereafter
is amended to authorize the further elimination or limitation of the liability
of a director, the liability of a director of the Corporation shall be
eliminated or limited to the fullest extent permitted by the Delaware General
Corporation Law, as so amended.
 
                  Each person who was or is made a party or is threatened to be
made a party to or is in any way involved in any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative or
investigative (hereinafter a "proceeding"), including any appeal therefrom, by
reason of the fact that he or she, or a person of whom he or she is the legal
representative, is or was a director or officer of the Corporation or a direct
or indirect subsidiary of the Corporation, or is or was serving at the request
of the Corporation as a director or officer of another entity or enterprise, or
was a director or officer of a foreign or domestic corporation which was a
predecessor corporation of the Corporation or of another entity or enterprise at
the request of such predecessor corporation, shall be indemnified and held
harmless by the Corporation, and the Corporation shall advance all expenses
incurred by any such person in defense of any such proceeding prior to its final
determination, to the fullest extent authorized by the Delaware General
Corporation Law. In any proceeding against the Corporation to enforce these
rights, such person shall be presumed to be entitled to indemnification and the
Corporation shall have the burden of proving that such person has not met the
standards of conduct for permissible indemnification set forth in the Delaware
General Corporation Law. The rights to indemnification and advancement of
expenses conferred by this Article Sixteenth shall be presumed to have been
relied upon by the directors and officers of the Corporation in serving or
continuing to serve the Corporation and shall be enforceable as contract rights.
Such rights shall not be exclusive of any other rights to which those seeking
indemnification may otherwise be entitled. The Corporation may, upon written
demand presented by a director or office of the Corporation or of a direct or
indirect subsidiary of the Corporation, or by a person serving at the request of
the Corporation as a director or officer of another entity or enterprise, enter
into contracts to provide such persons with specified rights to indemnification,
which contracts may confer rights and protections to the maximum extent
permitted by the Delaware General Corporation Law, as amended and in effect from
time to time.
 
                  If a claim under this Article Sixteenth is not paid in full by
the Corporation within sixty (60) days after a written claim has been received
by the Corporation, the claimant may at any time thereafter bring suit against
the Corporation to recover the unpaid amount of the claim and, if successful in
whole or in part, the claimant shall be entitled to be paid also the expenses of
prosecuting such claim. It shall be a defense to any such action (other than an
action brought to enforce the right to be advanced expenses incurred in
defending any proceeding prior to it final disposition where the required
undertaking, if any, has been tendered to the Corporation) that the claimant has
not met the standards of conduct which make it permissible under the Delaware
General Corporation Law for the Corporation to indemnify the claimant for the
amount claimed, but the claimant shall be presumed to be entitled to
indemnification and the Corporation shall have the burden of proving that the
claimant has not met the standards of conduct for permissible indemnification
set forth in the Delaware General Corporation Law.
 
                  If the Delaware General Corporation Law hereafter is amended
to permit the Corporation to provide broader indemnification rights than such
law permitted the Corporation to provide prior to such amendment, the
indemnification rights conferred by this Article Sixteenth shall be broadened to
the fullest extent permitted by the Delaware General Corporation Law, as so
amended.
 
 
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<PAGE>   7
 
                  The Corporation shall have the power to purchase and maintain
insurance on behalf of any person who is or was a director, officer, employee or
agent of the Corporation, or is or was serving at the request of the Corporation
as a director, officer, employee or agent of another corporation, partnership,
joint venture, trust or other enterprise, against any liability asserted against
him and incurred by him in any such capacity, or arising out of his status as
such, whether or not the Corporation would have the power to indemnify him
against such liability.
 
                  SEVENTEENTH: No contract or other transaction of the
Corporation with any other person, firm or corporation, or in which this
corporation is interested, shall be affected or invalidated by: (a) the fact
that any one or more of the directors or officers of the Corporation is
interested in or is a director or officer of such other firm or corporation; or,
(b) the fact that any director or officer of the Corporation, individually or
jointly with others, may be a party to or may be interested in any such contract
or transaction, so long as the contract or transaction is authorized, approved
or ratified at a meeting of the Board of Directors by sufficient vote thereon by
directors not interested therein, to which such fact of relationship or interest
has been disclosed, or the contract or transaction has been approved or ratified
by vote or written consent of the stockholders entitled to vote, to whom such
fact of relationship or interest has been disclosed, or so long as the contract
or transaction is fair and reasonable to the Corporation. Each person who may
become a director or officer of the Corporation is hereby relieved from any
liability that might otherwise arise by reason of his contracting with the
Corporation for the benefit of himself or any firm or corporation in which he
may in any way be interested.
 
                  EIGHTEENTH: The Corporation shall have the right, subject to
any express provisions or restrictions contained in the Certificate of
Incorporation or Bylaws of the Corporation, from time to time, to amend this
Certificate of Incorporation or any provision thereof in any manner now or
hereafter provided by law, and all rights and powers of any kind conferred upon
a director or stockholder of the Corporation by the Certificate of Incorporation
or any amendment thereof are conferred subject to such right.
 
                  NINETEENTH: This Fifth Amended and Restated Certificate of
Incorporation was duly adopted in accordance with the provisions of Sections 242
and 245 of the General Corporate Law of the State of Delaware.
 
 
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<PAGE>   8
 
         IN WITNESS WHEREOF, said Witness Systems, Inc. has caused this Fifth
Amended and Restated Certificate of Incorporation to be signed by David B.
Gould, its Chief Executive Officer, this 29th day of May, 2001.
 
 
 
                                       WITNESS SYSTEMS, INC.
 
 
 
                                       /s/ David B. Gould
                                       ---------------------------------------
                                       David B. Gould, Chief Executive Officer
 
 
ATTEST:
 
 
 
/s/ Loren Wimpfheimer
----------------------------
Loren Wimpfheimer, Secretary
 
 
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