Front Page Titles (by Subject) CHAPTER IX.: OF INTERROGATION, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY. - The Works of Jeremy Bentham, vol. 6
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CHAPTER IX.: OF INTERROGATION, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY. - Jeremy Bentham, The Works of Jeremy Bentham, vol. 6 
The Works of Jeremy Bentham, published under the Superintendence of his Executor, John Bowring (Edinburgh: William Tait, 1838-1843). 11 vols. Vol. 6.
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OF INTERROGATION, CONSIDERED AS A SECURITY FOR THE TRUSTWORTHINESS OF TESTIMONY.
Uses of interrogation, as applied to the extraction of testimony.
In the character of a security for the correctness and completeness of testimony, so obvious is the utility and importance of the faculty and practice of interrogation, that the mention of it in this view might well be deemed superfluous, were it not for the cases, to so prodigious an extent, in which, under English law, it is barred out by judicial practice.
1. The case in which its utility is most conspicuous, is that of mala fides on the part of the deponent; and this, being a state of things which in each individual instance may (for aught the legislator can know) have place, is a state of things for which, on every occasion, in the arrangements taken by him, provision ought to be made.
Completeness is the primary quality, with reference to which the demand for it is most obvious: fear of punishment and fear of shame having here less influence than as applied to secure correctness. In case of incompleteness, neither punishment nor shame apply, any further than as it is established that the omitted part came under the perception of the deponent, preserved a place in his remembrance, and presented to him, along with itself, the idea of its importance.
Importance being assumed, incompleteness may indeed become equivalent to, and a modification of incorrectness: but in general it is by interrogation, and by interrogation only, that it is rendered so.
Do you remember nothing more? did nothing further pass, relative to this or that person or thing (naming them?) By interrogations thus pointed, such a security for completeness is afforded, as can never be afforded by any general engagement which can be included in the terms of an oath or other formulary: be the engagement what it may, in the course of the deposition the memory of it may have evaporated and suppose it borne in mind—yet, without the aid of interrogation, the violation of it by suppression of the truth loses its best chance of detection.
2. Particularity, if it be not included under the notion of completeness, is no less indispensable to the purposes of testimony. But suppose a deposition delivered, and, in so essential a point, a deficiency remaining in it; by what means, it at all, shall the defect be supplied? Interrogation, it is evident, is the sole resource.
By particularity only can that repugnancy to known truths be established, by which mendacity is demonstrated.
Under what tree was the act committed? was the question put by the prophet Daniel to each of the two calumnious elders. Under a holme tree, answered the one: under a mastic tree, answered the other. But for the proof of mendacity, the question would have been irrelevant and superfluous; for, supposing the forbidden act committed, what mattered under what tree, or whether under any tree? But, for the detection of mendacity, no question that can contribute anything, can be irrelevant; and the more particular, the better its chance of being productive of so desirable an effect.
By interrogation, and not without, is the improbity of a deponent driven out of all its holds. An answer being given, is it true? It is useful in the character of direct evidence. Is it false? It stands exposed to contradiction, both from within and from without: and, being detected, it operates as an evidence of character and disposition, and thence in the way of circumstantial evidence. Is silence, pure silence, the result? Even this is evidence, circumstantial evidence. The deponent,—is he an extraneous witness? According to the nature of the question, it may afford as impressive a presumption of falsehood, antecedent or subsequent, as could have been afforded by detected falsehood. Is he a party to the cause? Besides the particular mendacity, it may afford a presumption of his own consciousness of the badness of his cause.
The testimony, is it indistinct, nugatory, unintelligible? Such indistinctness, if persevered in, and not the result of mental infirmity, is equivalent to silence.
In no case, be the sincerity of the deponent ever so unquestionable—in no case, either to completeness or correctness, can the faculty of interrogation be a matter of indifference, not even in ordinary conversation between bosom friends.
What father could be satisfied with the narrative of a long lost child,—what lover with that of his mistress,—without a possibility of perfecting his satisfaction by questions?
In no state can a deponent’s mind be, in respect to interest, but that interrogation may be necessary to the purpose as well of correctness as of completeness.
In every possible result, does he behold an event of the most consummate indifference? A fact really important may be left out of his narrative, either because not recollected at the time, or because, though recollected, its materiality, with regard to the cause, had not presented itself to his view.
Is he even desirous and eager to bring forward every circumstance that can serve the party by whom his testimony has been invoked: Still a circumstance may have been forgotten, or its materiality have escaped notice.
Supposing even a party in the cause—say a plaintiff—adducing his own testimony, deposing in support of his own demand (under English law, a state of things rarely exemplified in form, but in substance frequently:) a poor person, say, prosecuting in the hope of recovering goods lost by stealth. With all the interest and all the will that can be imagined, intellectual power may be insufficient to bring to light, in a complete body, the material circumstances, without the aid of some superior intelligence in the character of an interrogator, in the person of an advocate or a judge.
In a word,—but for interrogation, every person interested, in whatever way interested, in the manifestation of truth, is completely dependent on the deponent and on the state not only of the moral but of the intellectual part of the deponent’s mind.
Exceptions to the application of interrogation to the extraction of testimony.
Were security against deception and consequent misdecision the only object that had a claim to notice, the use of the security afforded by interrogation ought never to be foregone.
But, in this case as in all others, the mischief of that injustice which is opposite to the direct ends of justice, may find more than a counterpoise in mischief which is opposite to the collateral ends of justice,—inconvenience in the shapes of delay, vexation, and expense, jointly or even separately considered.
Take for examples the following cases, in which for avoidance of preponderant collateral injustice, it may happen that the security afforded by interrogation ought to be foregone; that is, in which it will generally or frequently happen, that the mischief resulting from the application of the security, will be greater in value (probability taken into the account) than any mischief that can take place for want of it.
I. Cases where the delay necessary to interrogation may be productive of irreparable damage: where, for example, the use of the evidence is to ground an application for stopping, 1. expatriation of the defendant, for avoidance of justiciability;* 2. exportation of property in his hands, for the like purpose; 3. deportation for the purpose of slavery; 4. deportation (the person a female) for the purpose of wrongful marriage or defilement; or, 5. wrongful destruction or deterioration of another’s property, by operations clandestine or forcible. To form a ground for arrestation, seizure, sequestration, and so forth, on any of these accounts, testimony is requisite. If time admit of the subjecting this testimony to the scrutiny of judicial interrogation, so much the better; but if not, better that it be received and acted upon without the interrogation, than that any such irreparable mischief should be done.†
2. Cases where the benefit of the security afforded by interrogation may be outweighed by the expense unavoidably attached to the application of it: as, if the seat of the judicatory in which the decision is to be pronounced, be in London or Paris, and the evidence of the deponent in the East Indies.
To determine the preponderance, as between the mischief on the score of direct injustice, and the mischief on the score of collateral inconvenience in this shape, will be matter of detail for the legislator, and under him for the judge.
Interrogation in the epistolary mode, or by judges for the occasion, on the spot, affords, for the giving the evidence the benefit of this security, two other resources: either of which, where practicable, will be preferable to the receipt of the testimony in an uninterrogated state.
As to the case of vexation, independent of expense; examples of it will be seen to more advantage in another place; when the cases, where it is proper to put on that ground an absolute exclusion upon evidence, come to be considered.
Where, for the avoidance of collateral inconvenience in the shape of delay, vexation, and expense, the application of this security is dispensed with, the following rules are expressive of the conditions which seem proper to be annexed to the dispensation:—1. The exemption ought not to be absolute and definitive. The inconvenience being removed, either in toto, or to such a degree as to be no longer preponderant, interrogation ought to take place; either of course, or at the instance, of a party interested, or of the judge. 2. In a case where the deponent (he who has been deposing in the uninterrogated form) is liable as above to interrogation,—if his deposition was either delivered in the ready-written form, or, being delivered in the oral form, was committed thereupon to writing, for which purpose appropriate paper is employed; notice of the eventual interrogation ought to be inserted (as for example it is when ready printed) on the margin.
For, to the purpose of preventing incorrectness and incompleteness (preventing, in a word, the testimony from being rendered deceptitious) it is material that the deponent should be pre-apprized of the scrutiny which it may continually have to undergo: and, for making sure of his being thus pre-apprized, no other expedient can be more effectual than this simple and unexpensive one.
On whom ought interrogation to be per-formable?
On whom? Answer: On every individual from whom, in the character of a deponent, testimony is received: saving the case of preponderant collateral inconventence, as above.
If, at his own instance, at the instance of a co-party on the same side, or at the instance of his adversary, the testimony of a party (plaintiff or defendant) be received, it should or course, and for reasons not less cogent than in the case of an extraneous witness, be subjected to this scrutiny: and it will be shown elsewhere,* that, in no instance, in any of the above cases, should the testimony of a party stand excluded, of the measures proper and necessary for the extraction of it, if called for by an adverse party, be omitted: any more than in the case of an extraneous witness.
Official evidence presents a case in which the demand for interrogation on the score of security against mendacity, and thence against deception and misdecision, will, generally speaking, be at its minimum: while on the other hand, the inconvenience, in respect of vexation, may be at its maximum, comparison being made with individuals whose residence is at no greater distance: inconvenience, of which part will be to be placed to the account of the individual (the officer,) part to that of the public service.
But unless, by being placed in the office in question, a man is purified from all the infirmities (intellectual as well as moral) incident to human nature; in the instance of no such office can the exemption from this security be with propriety regarded as unconditional and definitive.
Applied to official testimony, the objection bears with considerably greater force on oral interrogation than on scriptitious: the oral being the only mode of the two, to which the vexation and expense incident to attendance (at the judicatory,) with journeys to and fro, and demurrage, is liable to be attached.
If the above observations be just, the practice of English law under the technical system must, in cases in great abundance and to a great extent, be radically vicious,—favourable to incorrectness, to incompleteness, to mendacity, to consequent deception and misdecision:—affidavit evidence (i. e. uninterrogated testimony) being received, and to the exclusion of interrogated testimony from the same individual,—on the main question, in a class of causes in great abundance and to a great extent,—and in causes of all classes, on those incidental questions by the determination of which the fate of the cause is liable to be, and frequently is, determined:—official evidence received without the security afforded by interrogation, as well as without the security afforded by the eventual subjection to that punishment, which, by the penal consequences attached to a violation of the ceremony of an oath, is hung over the head of mendacity at large:—and these securities against mendacity removed with particular care, in the instance of that class of official evidence (I speak of the sort of judicial evidence called a record,) each article of which is by no other circumstance so remarkably and incontestably distinguished from every other species of official evidence, as by its being replete with pernicious falsehoods: some with facility enough, others with more or less difficulty, capable of being distinguished from the small proportion of useful truths that are to be found in it.
By whom ought interrogation to be performable?
To whom ought the power of interrogation to be imparted? Answer: To every person by whom it promises to be exercised with good effect: subject always to the controul of the judge, but for which, any power of command might, on this as well as on any other occasion, run into the wildest despotism.
And by whom is it likely to be exercised with good effect? Answer: By every person in whom suitable will and power are likely to be found conjoined. Will, the product of adequare interest, in the most extensive sense of the word,—power, consisting, in the present case, of appropriate information, accompanied with adequate ability of the intellectual kind.
Of the extent thus proposed to be given to the power of interrogation, the propriety stands expressed in the following aphorisms, which seem to claim a title to the appellation of axioms:—
1. For every interrogator, in whose person adequate interest and natural power unite, an additional sceurity is afforded for correctness and completeness, and thence against mendacity and temerity on the one part and deception and misdecision on the other.
2. Against the admission of any proposed interrogator, no objection consistent with the ends of justice can be raised, on any other ground than that of mendacity-serving suggestion, or that of preponderant collateral inconvenience in the shape of delay, vexation, and expense: placing to the account of useless delay and vexation every proposed interrogation, that, in the judgment of the competent judge, is either irrelevant or superfluous.
The individuals in whose persons these requisites may be expected are,—1. The judge (including, in English jury-trial procedure, the jurymen, as well as the directing judge or judges;) 2. The plaintiff or plaintiffs; 3. The defendant or defendants; 4. The advocate or advocates of the plaintiff or plaintiffs; 5. The advocate or advocates of the defendant or defendants; 6. In some cases even extraneous witnesses.
There is a species of procedure in which there is no party on the plaintiff’s side: in causes tried under this species of procedure, the function of the plaintiff is really exercised by the judge.
There is another species of procedure, in which there is no party on the defendant’s side: in causes thus tried, the function of the defendant is exercised by the judge.
In causes of the above several descriptions, the number of possible interrogators suffers a correspondent reduction.*
When the list of characters capable of bearing a part on the theatre of justice is complete, there are, of proposed deponents, four descriptions; a plaintiff; a defendant; a witness (viz. an extraneous witness) called on the plaintiff’s side; a witness called on the defendant’s side.
Proposed interrogators, to each proposed deponent, seven. When the proposed deponent is the plaintiff; 1. the judge (including, in the case of jury trial, the several jurymen;) 2. this same plaintiff’s own advocate; 3. any defendant or his advocate; 4. any co-plaintiff or his advocate; 5. any witness called by this same plaintiff; 6. any witness called by any defendant; 7. any witness called by a co-plaintiff.
From hence, mutatis mutandis, may be determined the correspondent proposable interrogators in the respective cases of the three other descriptions of proposed deponents. Proposed deponents, 4: to each one of them, proposed interrogators, 7: by multiplication, total number of cases for consideration, 28.*
If the principle above laid down be correct (viz., that, except as excepted, every interest ought to have its representative in the person of an interrogator,) a consequence which follows is—that, of the above eight and twenty cases of interrogation, in so many as under any system of procedure are peremptorily excluded from having place, so many cases of incongruity stand exemplified.
English common-law procedure exhibits a multitude of different modes of receiving and collecting testimony: Roman and Rome-bred procedure: including English equity, English ecclesiastical court, and English admiralty court procedure) another multitude: in many, or most of them, the list of proposed deponents and interrogators is more or less different, and the difference not governed by any consistent regard (if by any regard at all) to the grounds of exception above brought to view. Of these established modes of practice, that all are wrong, will, it the above principle be correct, be found more than probable; that all are right, will be found absolutely impossible.
All the parties, and on both sides of the cause, have been placed upon the above list of persons, on whom, in the character of witnesses (each of them as well at his own instance and at the instance of a party on the same side of the cause, as at the instance of any party on the opposite side of the cause,) the process of interrogation may with propriety be performed. Under the established forms of procedure, under the general rule (so far as, in the midst of such diversity and inconsistency, anything under the name of a general rule can with propriety be spoken of,) both these classes of proposed deponents stand excluded: excluded, it proposed at their own instance or that of a party on the same side, on the score of interest; if proposed at the instance of the opposite side, excluded (principally in the case of a defendant) on the ground of vexation.
But on the ground of interest, so futile is the pretence, that, in cases where to any amount the impulse of sinister interest is mere forcible, the exclusionary rule is itself excluded: and on the ground of vexation, when the vexation is not less galling, and (by reason of the inferiority of the species of evidence) attended with a much greater probability of deception and misdecision, the exclusion on this ground has no place: and moreover, at his own instance, the same party, who is not admitted in the guise of a party, is admitted with the sinister interest acting in full strength in his bosom, under a variety of disguises.*
In so great a multitude of proposed cases for interrogation, two clusters shall be here selected for special explanation: the case of the advocate under all its diversifications, and the case of the extraneous witness under all its diversifications. The other cases are sufficiently simple to require no special notice.
In case the second of the twenty-eight, it is assumed, that a plaintiff ought to be capable of being interrogated by his own advocate. To an English lawyer on one side of the great hall, the necessity of the admission will be apt to appear so palpable, that every word employed in proof of it would be so much thrown away. But on the other side of the same hall, the door of the evidence-collecting judicatory is inexorably shut against the interrogating advocate, as well as against every other interrogator but the underling, who to this purpose stands in the place of judge.
In the cases of interrogation here proposed, are included two assumptions: the propriety of admitting as the representative and assistant of a party, a person who is not a party; and the propriety of his being a professional advocate: the professional advocate being of course understood to be included under the appellation of advocate.
Of the occasional admission of a person in the character of an assistant to the party (supposing it a case in which admission may with propriety be given to the party himself,) the necessity stands demonstrated by the following causes of infirmity and relative incapacity, under which a party is liable to labour: 1. Infirmity from immaturity of age, or superannuation; 2. Bodily indisposition; 3. Mental imbecility; 4. Inexperience; 5. Natural timidity; 6. Female bashfulness; 7. Lowness of station, in either sex.
True it is that there sits a judge, whose duty (it may be said) is, on this occasion as on others, to act as an advocate—not indeed on either side, but on both.
But on the part of an advocate, to enable him to fulfil his duty in an adequate manner, two endowments are necessary: appropriate information in all its plenitude, and the zeal that is necessary to turn it to full account. On the part of a judge, neither requisite (in a measure sufficient for all causes, or even for the general run of causes,) can on any sufficient ground be expected: much less both.
In the particular case here supposed, the party is by the supposition, present: but he may be absent, and that unavoidably.
Of a substitute to the party, the necessity is co-extensive with the cases where the attendance of the party is either in the physical or the prudential sense impracticable.
On the occasion here in question, as on other judicial occasions, the necessity of giving admission to a professional advocate is indicated by the following considerations:—
1. An adequately qualified non-professional and gratuitous assistant or substitute would not always be to be had.
2. In so far as appropriate learning is necessary (and all the art, as well as all the power, of the profession has been employed for ages in rendering that necessity as universal and cogent as possible,) a non-professional assistant or substitute would very seldom be adequately qualified.
True it is that (so far as matter of fact only is in question) neither in point of appropriate information nor in point of zeal, can the professional advocate be naturally expected to be so much as upon a par with the friendly and unpaid substitute of assistant. Though in practice Judge and Co. have taken too good care of themselves and one another not to exclude all such odious interlopers; yet the exclusion is the result of positive and abusive institution, not of the nature of the case.
Besides those which, as above, are the result of artifice,—two other advantages are, on the occasion in question, naturally enough attendant on the intervention of the professional, in contradistinction to the non-professional, advocate: advantages which may be reckoned as such, even with reference to the cause of justice.
But for this resource, a wrongdoer may, to the prejudice of the party wronged, possess on this occasion two advantages of a very oppressive nature: the advantage of the strong over the weak in mind; and the advantage of the high over the low in station. In a cause of a doubtful or intricate nature, nothing but such a union of talent and zealous probity, as would be too great to expect with reason on the part of an ordinary judge, more especially of a juryman, can prevent these advantages (even in a separate state, much more when united) from operating in a degree highly dangerous to justice. But, unless in case of a species of corruption, which is not of the number of those over which fashion throws its veil, the advocate is the same to all,—to low as well as high.
Unfortunately, however, in this supposition is included the being in a condition to purchase such high-priced assistance: and the great majority of those who have need for justice, are far from being in that condition.
But though the advocate (whatsoever may be the ascendant attached to his rank in the profession,) being the same to all, will not be more apt to make an abusive application of it, to the advantage of the high and opulent (as such,) in their warfare with the low and indigent; this sort of impartiality will not hinder him, it may be said, from employing it in another manner, more directly and certainly prejudicial to the cause of justice.
Under the name of brow-beating (a mode of oppression of which witnesses in the station of respondents are the more immediate objects,) a practice is designated, which has been the subject of a complaint too general to be likely to be altogether groundless. Oppression in this form has a particular propensity to alight upon those witnesses who have been called on that side of the cause (whichever it be) that has the right on its side; because the more clearly a side is in the right, the less need has it for any such assistance as it is in the nature of any such dishonest arts to administer to it.
But, of the assistance of a professional advocate to the cause of justice, where such asistance is to be had, the utility is grounded in the nature of things: whereas the abuse thus characterized by the name of brow-breating, is not, as will be seen, altogether without remedy.* Brow-beating is that sort of offence which never can be committed by any advocate who has not the judge for his accomplice.
In respect of appropriate information (with relation to the purpose in question,) under the technical system the advocate is but too apt to be deplorably deficient: the advocate seeing nothing of the facts but through the medium of another professional man, rich in opportunity, and prompted by interest in a variety of shapes, to misrepresent or intercept them. But the sinister advantage which the technical system has contrived to give itself in this respect, depends upon the fundamental arrangement by which it excludes the parties, on all possible occasions, from the converse and presence of the judge. On the occasion here in question, the presence of the party in question is supposed.
In the particular case here in question, that of a party (the plaintiff) in the cause, proposed to be interrogated by his own advocate, an objection, obvious enough in theory, grounds itself on the danger of prompting or suggestive questions,—in a word of mendacity-serving information. But on a closer examination this danger will be seen to lose much of its magnitude:† meantime it may not be amiss briefly to observe, that in the shape of actual mischief it does not appear to have been felt in English practice.
Compared with this second case, case ninth (in which, the deponent’s own advocate being still the proposed interrogator, the party proposed to be interrogated by him, instead of being as in the former case the plaintiff, is the defendant,) presents some slight difference:—in a criminal case, especially in a case where the punishment is raised to the highest pitch of severity, the incitement to afford mendacity-serving information in the shape of a question is in itself much greater; at the same time that the topic of humanity presents an excuse, beyond any that applies in the other case. But, that even in this case, the objection is not weighty enough to be preponderant, will be seen in the place referred to as above.
Be this as it may: whether for this or for any other reason, or (what is on all occasions at least equally probable) without any consideration on the ground of reason, in English criminal law,—though the plaintiff, under the name of prosecutor, is allowed to be interrogated by his own advocate,—that allowance is not extended to the defendant. But an observation to be made at the same time is,—neither is he allowed to be interrogated by anybody else: he tells his own story if he pleases; but, however deficient it may be, either in point of correctness or completeness, effectual and anxious care is taken that (in this way at least) the deficiency shall not from any quarter be supplied.
In twelve, out of the eight and twenty cases, it is assumed that a witness ought to be considered as capable of being admitted to act in the character of an interrogator, i. e. to put questions, as well to a party as to a witness, on either side of the cause.
To an English lawyer, on either side of the great hall, the idea will be apt to appear too strange and visionary to have ever been exemplified in practice. It was, however, in common practice, at any rate in the French modification of the Roman system of procedure, in criminal causes of the most highly penal class. Confrontation was the name of a meeting which the judge was in most instances bound to bring about between the prisoner and the several witnesses on the other side—the witnesses by whom he was charged: and, on the occasion of such meeting, each was allowed to put questions to the other: the judge present, and (except a clerk for minuting down what passed) no one else.
If so it be that cases may happen, in which, in the most highly penal class of criminal cases, questions put by an interrogator of this description may be conducive to the ends of justice,—so may it in all other classes of criminal cases: and if in criminal cases, so also in non-criminal. Whatever may be the demand for the use of it, the propriety of that demand will not be varied, either by the distinction between most highly penal and least highly penal cases, or by that between criminal on the one part, and non-criminal on the other.
Cases are not wanting in which, on the score of the direct ends of justice (in other words, in respect of the merits of the cause,) interrogation, if performed by the sort of interrogator here in question, promises to be more efficient than if originating from any other source.
A contradiction, real or apparent, takes place (suppose) between the testimony delivered by an extraneous witness, and that delivered by a defendant in the character of a witness, a plaintiff in the character of a witness, or another extraneous witness, called, whether on the same side, or (what is more apt to be the case) on the side opposite to that on which the first was called. By reciprocal interrogation, in which (on one side or on both) an extraneous witness takes a part, truth will acquire a better chance for being brought to light than it could have without this assistance: the seeming contradiction may be cleared up, or the incorrect testimony shown to be so.
True it is, that the same end might be arrived at, without admitting any extraneous witness to perform the function of an interregator; viz. by the instrumentality of the party, or his advocate.
But in the case in question, it is only by means of the witness that the party can be apprized of the facts, or supposed facts, on which the questions are to be grounded. By interposing, between two individuals to whom (if to anybody) the facts of the case are known, another individual to whom they are unknown (besides the useless consumption of time), no help to truth can be gained, and much help may be lost.
Both were present (suppose) at the same transaction: how prompt and lively in such a case is the interchange of questions and replies on both sides! How instantaneously the points of agreement and disagreement are brought to view! How instructive is the department exhibited on both sides on the occasion of such a conference! Of the advantage possessed by the oral mode of extraction in comparison with the epistolary, much (as will be seen* ) depends on the promptitude of the response—on the exclusion thereby put upon mendacity-serving reflection and invention. Interpose between the two individuals (both privy to the transaction) another who is a stranger,—both the advantages in question (viz. the promptitude of succession as between question and answer, and the real evidence furnished by deportment) are in great measure lost.
Other cases there are, in which the regard due to the interest of the witness himself (the proposed interrogator) calls for the admitting him to the exercise of that function.
1. The witness happens to have a collateral interest in the matter of dispute. In the testimony delivered by another deponent (plaintiff, defendant, or extraneous witness on either side,) incorrectness has taken place to the prejudice of such collateral interest. The testimony (suppose) will be, or is liable to be, divulgated and recorded.—It seems unreasonable, that, from a dispute having place between two parties, a third should suffer an irremediable prejudice. Here we see the case of a special interest: and an interest susceptible of almost as many diversifications as any which can be at stake in the principal cause.
2. His reputation for veracity is, by the proposed interrogator, seen to be put in jeopardy by the incorrect statement delivered by another witness as above. Why for this, any more than any other injury, should a man stand precluded from the means of self-defence?
Attacked in his person, the law would not refuse him permission to defend himself on the spot: the protection which it grants to his person, why should it refust to his reputation? Here we see the case of a sort of general interest, the interest of reputation: or (to employ the denomination more in use in the language of evidence) of character.
Causes (says an objection) would at this rate grow out of one another, and thence litigation without end.
Nay (says the answer) it is not the demand for litigation, it is not injury, that would in this way be increased: it is only the means of redress for injury, that would in this way be afforded: redress rendered incompatably more easy and effectual than at present.
It is not by the fear of an excess, but by the fear of a deficiency, of litigation, that, under the fee-gathering system, this undilatory, unexpensive, and comparatively unvexatious, mode of redress, has been shut out. To open the door to such explanations would be to rip open the belly of the hen with the golden eggs.*
All three cases being accidental, and comparatively extraordinary; no doubt but that the admission of a witness to the faculty of interrogation must be committed to the discretion of the judge: grantable either of his own motion, at the instance of the party, or at that of the witness himself, according to the nature of the case, as above.
In the case of the party, liberty of interrogation is a matter of right: since a case cannot be figured in which it ought not to be allowed. Of the several distinguishable descriptions of witnesses, if to any one it were matter of right, so would it be to all: the consequence might be the most intolerable confusion. A malâ fide plaintiff or detendant, by calling in adherents and confederates of his own in unlimited numbers, might swell the amount of delay, vexation, and expense, to any height.
One case, that of a party (say the plaintiff,) made subjectable, on the occasion of delivering his testimony, to interrogation by a person whom he is about to call in the character of an extraneous witness, affords a particular objection on the ground of the danger of mendacity-serving information. By the supposition, the witness—the extraneous witness—has no interest, no avowable and rightful interest, in the cause. If then he be to be admitted to interrogate, it can only be in the character of an advocate; an agent of the party whom it is proposed he should interrogate. But, between the character of an agent and the character of a witness, there is a sort of incompatibility: on the part of an agent, partiality ought to be supposed; on the part of a witness, impartiality is a quality that ought to be cultivated and guarded with all imaginable care. To admit interrogation from such a quarter, is to incur a needless danger of bias or of mendacity on the part of the extraneous witness, and thus of mendacity-serving information from him to the plaintiff-deponent.
Answer: 1. From a man’s being disposed to afford that assistance, the affording of which is consistent with the laws of probity (viz. affording information in a direct way by his own testimony, and in a less direct way by questions tending to extract information from another person,) it follows not that he will be effectually disposed, or so much as at all disposed, to afford mendacity-serving information.
2. Between the character of a witness for one of the parties, and the character of an agent for the same party, there neither ought to be any such incompatibility, nor is in general in established practice; at any rate not in English practice. A man known to be an agent of the party, is admitted to depose at his instance, and in that respect on his behalf, without difficulty.
3. If the danger on this score were serious enough to be conclusive, excluding the witness from acting in this case in the character of an interrogator would not suffice to obviate it: for so long as any other person alike partial to the interest of the plaintiff (say the plaintiff-deponent’s own advocate, say a fellow-plaintiff or his advocate) were permitted to interrogate, the same sinister end might be compassed, as well by the witness’s communicating the proposed question to these allowed confederates, as by his propounding it himself.
Thus stands the matter on the footing of sinister interest; interest prompting the individual in question to promote the departure of the deponent from the line of truth. But in the case of an extraneous witness (considered with a view to his appearance in the character of an interrogator) there exists a naturally-operating tutelary interest, tending to engage him to employ the information he is master of in framing questions, the tendency of which will be to confine the testimony of the deponent within the pale of truth. The deponent has been delivering his testimony—the extraneous witness has had communication of it, or heard or read the minutes taken of it: a passage that he has remarked in it strikes him as deficient (no matter from what cause) in correctness or completeness—in those respects, one or both, it disagrees with the testimony which he himself has delivered. Independently of all personal interest (honest or dishonest) in the cause; what desire can be more natural, what more general, than, by questions, or any such other means as are allowed, to interpose in the view of supplying the deficiency? Let the permission of satisfying this desire be allowed, a sort of contest springs up, a sort of combat takes place, between the deponent and the interposing witness: a clashing of counter-assertions and counter-interrogatories,—a collision from which truth and justice have nothing to fear, everything to hope.
Instead of this immediate collision between the deponent and the proposed interrogating witness, substitute an examination performed by the party interested or his advocate, without other assistance than that of the proposed interrogating witness: who does not see that this operation will be, comparatively speaking, languid and ineffective? When two persons, each a percipient witness of the transaction of which they both speak, stand up in contradiction to each other, the guard of artifice is beat down: mendacious invention, unable to find apt matter at such instantaneous warning, is confounded, and driven into self-contradiction, or self-condemning silence.*
For the deponent, instead of the plaintiff (as above,) put the defendant; making at the same time, in the description of the interrogator, the correspondent changes: you will mid the arrangement subjecting him to be interrogated by the three other sort of persons proposed in that quality, recommended by the same reasons.
Such and so various are the descriptions of persons by whom it may be of advantage to the interests of truth and justice that the process of interrogation should be performed. Performed and to what purpose? To the purpose so often mentioned, viz. that of making what provision can be made for the completeness, as well as correctness, of the aggregate mass of evidence.
And in what view and intention were these several classes of persons looked out for?—In the view of collecting the requisite stock of appropriate skill and appropriate information: whatever skill (derived from experience) might reasonably be looked for as requisite and sufficient for the purpose, applied to whatever information the particular circumstances of the individual case might happen to afford.
But without the requisite share of zeal to put those means into action, and give them a suitable character, all the skill and all the information imaginable would still be of no use. It was for this purpose that all the distinguishable interests, which, in each individual case, the nature of the case might happen to afford, were carefully looked out for; for, supposing any one such interest left out, and the case so circumstanced as to afford a fact which no other but that interest would prompt an interrogator possessing the requisite share of skill and information to call for,—the necessary consequence is that pro tanto the mass of evidence remains incorrect or incomplete: and howsoever it may fare with other persons having other interests, misdecision and injustice to the prejudice of the possessor of that interest will be the probable consequence.†
Thus much then is, I flatter myself, pretty clearly understood; viz. that when all the interests at stake in a cause are comprehended, and the faculty of interrogation allowed to the possessors of those several interests without exception, over and above the faculty of adducing such testimony as they themselves may happen to have it in their power to adduce; the best provision is made that can be made for correctness and completeness (so far as information and zeal at least are concerned:) and that, on the other hand, while there be any one such interest to which that faculty is denied, the provision made is imperfect, and pregnant with deception, misdecision, and injustice.
But what (I think I hear an English lawyer crying out and saying)—what is all this but a round-about way of observing, that in every cause cross-examination ought to be allowed?
In answer, what may be admitted is, that, towards conveying the conception above meant to be conveyed, this word (to which no equivalent seems to be afforded by any other language than the English) does more than can be done by any other single word in actual use.
What on the other hand requires to be observed, is, that, had this word and no other been employed, the conception conveyed by it would, as well in point of correctness as in point of completeness, have been in no slight degree discordant with the truth of things, for,—
In the first place, the salutary effect in question will be seen to be obtained in a variety of cases in which no such operation as that denoted in English practice by the word cross-examination is performed.
In the second place, cases will be seen in which an operation called by the name of cross-examination is performed, and the salutary effect in question is either not promoted at all, or promoted in a mode and degree very imperfect in comparison with that which is generally understood as attached to the performance of the operation so denominated.
There is another and a perfectly sufficient reason, for not being contented with saying that cross-examination should be allowed. This work, if it be of any use to any one nation, may be of no less use to any other: if it be of any use to-day, its use will not be obliterated by cycles of years succeeding each other in any number. It to the substance of the practice denoted in the English language by the word cross-examination, there be attached (as it appears to me there is attached) a virtue in a peculiar degree salutary to justice; it would be too much to say or to suppose that an acquaintance with the language of this small part of the globe is indispensable to it; that it is only by understanding English that a man can understand what is necessary to justice.
Thus extensive, and in themselves occasionally almost unbounded, are the demands presented by the direct ends of justice,—the latitude demanded in respect of the number of persons to be admitted to the faculty of interrogation, to make it absolutely sure, that of the persons (whatsoever may be their number) having each a separate interest in the cause, no one shall be exposed in any degree to suffer for want of it.
But on this, as on every other occasion, the operations prescribed by the direct and ultimate ends, find their necessary limit in the regard due to the collateral end, of justice. On this as on every other occasion, care must be taken—taken by the legislator, and discretionary power in corresponding amplitude allowed by him to the judge,—that, for the avoidance of a possible mischief in the shape of a misdecision, a certain and immediate mischief be not admitted to a preponderant amount in the shape of delay, vexation, and expense. But for this, the number of persons standing together on the defendant’s side of the cause, and possessing each a distinguishable interest, might, by the nature of the cause, be every now and then swelled to such a pitch, that, by conjunct operation (with or without concert and conspiracy,) the value of the service demanded (how considerable soever,) might eventually, or even to a certainty, be overborne by the weight of the delay, vexation, and expense thus attached to the prosecution of it; and thus, sooner or later (over and above all the collateral inconvenience,) direct and certain injustice to the prejudice of the plaintiff’s side would be the necessary result.
On the part of the judge exists the requisite allotment of skill: this, provisionally at least, must all along be supposed. At the command of the judge lies the whole stock of information which, in each individual case, the nature of the case affords: for this may all be supposed,—understand always, in so far as the information possessed by one man can, to this purpose, be deemed with propriety to be in possession of another.
In the exercise of judicature in every country, among the occupations of the judge—among the obligations which the judge is expected to fulfil, is that, of applying that skill and that information to the discovery of the truth through the medium of evidence. If, then, interrogation be indeed, as it was not denied to be, an apt instrument for that purpose, why, it may be asked, look out for any other hands to lodge it in? What is there in his station to hinder him from employing it? and employing it to the utmost advantage to which it is capable of being employed?
What should hinder him? Two deficiencies:—deficiency in respect of two out of three endowments (not to speak here of probity,)* the union of which is necessary to the discharge of this function to the best advantage: appropriate information, and zeal.
1. Appropriate information: for the faculty of obtaining possession is not itself possession: to have a chance, and but a chance, of possessing a thing some days hence, is not the same thing as the actual possession of it at this very instant: information at second hand is not the same thing as information at first hand. These considerations have already been mentioned among the reasons for allowing the judge to admit a witness to the exercise of this function, as well as a party or his advocate.
2. In the article of zeal, the inferiority of the judge as compared with the party, is not less obvious or undeniable. Equality in this respect is an endowment which seems hardly to be wished for, were it even attainable: as being incompatible with that characteristic calmness and impartiality, for the want of which no other endowments can atone.*
In this general point of view, the deficiency natural to the station of the judge is, indeed, sufficiently obvious: although in Roman practice the recognition of it has not had any such effect as to have produced (except in a comparatively narrow case) the communication of any share of it to any other of the stations in the cause; that of a party or that of an extraneous witness.
But what is not quite so obvious, nor is yet altogether unworthy of remark, is the different degrees of zeal which, in causes or inquiries differently circumstanced, will naturally be apt to infuse itself into the station of the judge.
1. In one class of causes, and that more numerous than all the others put together, his zeal may be set down as being naturally at its minimum. This is the class of causes between man and man; the class composed of non-criminal causes.
Not but that, even here, the indifference so natural, and frequently so observable, in the situation of the judge, may be referable, in no inconsiderable degree, to a collateral and not altogether inseparable cause: viz. the natural state of procedure under the technical system; which, in these cases, never fails to afford, on some terms or other, to each of the persons an advocate, or advocates: one sure way of realizing which state of things, is the refusal to listen to the party unless he employs an advocate.
In this state of things, by one sort of interest, to the action of which the judge, like every other man, is continually exposed (viz. the interest corresponding to the love of ease,) he is continually urged to get through the business with as little trouble to himself as possible. Here then we have a sinister interest, which (supposing it to stand alone, or without being encountered by any interest, acting in a tutelary direction, of sufficient force to overcome it) will be sufficient to render the faculty of interrogation, as far as he is concerned, altogether nugatory.
In the view that will come presently to be taken of the existing modifications of technical procedure, we shall see this sinister interest acting with very little opposition from any tutelary one: but of this in its place.
In the employment of this instrument to the best advantage, the advocate, in so far as he is admitted to wield it, has an obvious, and in a considerable degree efficacious, interest: his bread, in many cases, depending on his professional reputation; and the reputation of the advocate having a natural and intimate connexion with the success of the client.
In this interest, the judge, it is evident, has not the smallest share. His reputation is, indeed, in a certain degree, dependant on the apparent justice and propriety of his decisions; and on their actual, in so far as their apparent depends upon their actual, justice. But the apparent justice of a decision grounded on a body of evidence depends upon that evidence: depends upon the evidence, not as it might have been, but as it is. In this state of things,—so long as the evidence, as collected by him, does not appear to be either incorrect or incomplete,—in what degree it really is so, is to the interest of his reputation a matter of indifference. Moreover, so far as appearances are concerned, everything depends upon publicity: insomuch that, supposing perfect secresy, it is with this part of the business as with every other,—let it be done as well as possible, or as ill as possible, his reputation is exactly in the same state.
2. The case in which the zeal of the judge on this occasion may be expected to be found at its maximum, is that of the species of procedure already described under the name of inquisitorial procedure: a case which comprehends the whole of the criminal branch,—in so far as the business of receiving, collecting, and investigating the evidence against the defendant, rests (especially if it rests exclusively) in the hands of the judge,—without any co-operation, (or at least without the necessity of any co-operation) on the part of any other person in the character of prosecutor (the name, in this branch, given to those who act on the plaintiff’s side of the cause.)
In this case, that in the article of zeal there should be any considerable deficiency on the part of the judge, will not, on a general view, be found natural to the case.
To repress his activity, the same vis inertiæ the love of ease, is operating, in this as in the other case: but in this case it is natural to it to find counter-forces (and these adequate to the surmounting of it) such as do not apply to that former case.
Here is an end to be accomplished; an end which (setting aside particular and casual interests and affections) men in general have an interest in seeing accomplished, and an interest which, in some degree or other, is pretty generally felt by the judge himself, along with the rest: and his is precisely that particular situation from which the general interest will naturally be viewed in one of its strongest lights. To accomplish this end, is a task committed, and universally known to have been committed, to his charge—a task not forced upon him, but voluntarily accepted by him, along with the other functions attached to his office; his reputation for professional skill, as well as industry, is attached to the due execution of this power, and, in the case of real delinquenry, to the successful execution of it.
Under these circumstances,—to produce a considerable, and in general an adequate, degree of zeal and exertion on his part—neither to excite it in the first instance, nor, à fortiori, to keep it up, is any such interest as pecuniary interest, in the shape of a mass of fees depending in any way upon success, necessary. Of the hunter who toils the whole day to catch a stag or a fox, whom he lets go as soon as caught, the zeal is neither awakened nor kept up by any such prospect as that of fees.
In so wide a field, general principles of action are liable, in certain cases, to be overborne by particular ones. But upon the whole, that in this case the situation itself is literally adequate to the production of the quantum of zeal requisite for the effectual discharge of the function, directly and principally attached to it (viz. the receiving, collecting, and investigating evidence, and, by means of the instrument of interrogation, giving correctness and completeness to it,) at least in so far as the operation of the evidence tends to bring about the conviction of the real delinquent, seems pretty generally testified by experience.
In this view may be cited—1. Under the Roman system, the conduct of the business, from beginning to end, in the case of those crimes of high degree, which, affording no individual prompted by peculiar interest to take upon himself the vexation and expense attached to the station of private prosecutor, are left to be prosecuted for, as well as decided upon, by the judge. 2. Under the English system, the preparatory inquiry conducted by a justice of the peace, in the case of a crime of the rank of felony. 3. Under the same English system, the inquiries conducted by tribunals organized on special occasions, for special purposes—whether by the authority of either house of parliament, under the name of a committee—or under the authority of the whole legislature, under the name of a commission of inquiry.
Excess rather than defect of zeal has in these cases been the more frequent topic of complaint. In the case of that tribunal (the inquisition) to which the denomination of this species of procedure has become attached,—as if it were the only tribunal in which the two functions of prosecutor and judge had ever been united,—the complaint has risen long ago to a height become proverbial.
It is from the abuse made of the faculty of interrogation, on the occasion of its being applied to the disastrous purpose there in view, that criminals of all sorts, co-operating in this way without the need of concert—criminals of all sorts, with their accomplices after the fact, and abettors of all sorts—have taken occasion to labour, and with but too much success, in deluding the public mind, and setting it against the application of the same instrument to the most necessary purposes—laboured, and with as much reason, and even appearance of reason, as if their enendeavour had been to stamp the like infamy upon the power of judicature itself, or upon the use of the interrogative mood as applied to any of the other common purposes of social intercourse.
Though interrogation by the parties is of itself, in general, a more effectual security than interrogation by the judge, the former, nevertheless, does not supersede the latter.
Though, in respect of special information applying exclusively to the facts appertaining to the individual cause in hand, the parties will (one or other, or both of them) be better qualified for the task than the judge,—yet, in many instances, the superiority of general information, discernment, and promptitude, naturally resulting from the superiority of experience, will enable him to bring to light facts, for want of which the testimony would have been incomplete, or meudacity, if employed by the witness, would have escaped detection. In no case, it is evident, can such assistance be deemed superfluous; but there are various circumstances by which the demand for it may be increased: it there be any deficiency in point of intelligence or exertion on the part of the advocate on either side; if on either side there be no advocate,—and the party (by mental weakness, the result of sex, age, bodily indisposition, want of education, natural dulness, and so forth) be in any particular degree disqualified from conducting his own cause with due advantage.
As to zeal: though in this point the judge cannot reasonably be expected to be upon a par with the party interested; yet, with the advantage of professional education and experience, a much inferior degree of exertion will frequently enable him to render much more effectual service;—so that, upon the whole, in the character of an interrogator, the judge, though but an inadequate substitute, may, with reference to the party, be deemed an indispensable assistant.
Affections of the several proposed interrogators and respondents towards each other, how far presumable.
Such or such a person in the character of an interrogator,—shall it be permitted to him to interrogate such or such another person in the character of a proposed respondent? To settle the answers to these several questions is one practical use of the double list of proposed respondents and interrogators.
But, in judicial practice, rules have been grounded on the supposed affections of this or that person in the character of a respondent, to this or that other person in the character of an interrogator, or vice versâ: rules prohibiting or allowing such or such a mode of interrogation in the several instances.
Here, then, we have another practical use of the list: inquiring into the nature and solidity of the grounds for ascribing to such or such a situation such or such a state of the affections; and thence into the propriety of the prohibitions and permissions respectively administered by these rules.
In most instances we shall find ground for a presumption ascribing to a party in one of these situations, with relation to a party in such or such another of these situation, such or such a state of the affections. But in each of these instances it will be manifest, that, from one cause or another, such presumption is liable to fail: from which inconclusiveness and uncertainty, follows, in every instance, the impropriety, whether of prohibition or of permission, if established by any such peremptory and unbending rule.
1. Proposed respondent, an extraneous witness called by the plaintiff; proposed interrogator, the plaintiff or his advocate.
The superior probability is, that the affections of the proposed respondent are either neutral, or favourable as towards the side from which the interrogation proceeds. For, supposing the party to have his choice of witnesses, he will pitch upon such as he expects to find favourable to him, or at least neutral: he will avoid calling such as he expects to find adverse.*
But this probability, such as it is, is manitestly much exposed to failure. It is not of course, and always, that a party has any such choice of witnesses: those cases which afford no such choice are the most apt to be productive of legal dispute. Of whatever number of distinct facts it may be necessary to the plaintiff to prove, it there be a single one which cannot be proved by any other evidence than the testimony of a witness rendered adverse to himself by any repuguancy of interest or cause of antipathy, or (what comes to the same thing) rendered amicable towards the defendant by any tie of interest or sympathy; he must either give up his right altogether, or, instead of finding the road to information smoothed by the neutrality or sympathy of the proposed respondent, find it obstructed by his ill-will and reluctance.
2. Proposed respondent, an extraneous witness called by the defendant; proposed interrogator, the defendant or his advocate.
Under these different names, to the purpose here in question, this second case is in substance the same as the first.
3. Proposed respondent, a plaintiff; proposed interrogator, a co-plaintiff or his advocate.
Here the presumption is, that the affections of the proposed respondent are not merely neutral, but highly favourable to the proposed interrogator, and vice versâ; because here, in respect of the cause itself, is a declared community of interest.
In this third case, the presumption, it is evident, is much stronger than in either of the two former.
But here also it is liable to failure. 1. Under the apparent bond of union, an original opposition of interests may be concealed.* 2. The declared interest which the proposed respondent has in common with the proposed interrogator, may be outweighed by some undeclared and secret opposite interest: or, between the proposed interrogator and a party or parties on the other side of the cause, collusion may have place.†
4. Proposed respondent, a defendant; proposed interrogator, a co-defendant or his advocate.
Presumption here the same as in case 3: causes of failure also the same. But in this fourth case the presumption is weaker; the existence of a cause of failure being more probable. For, without his own consent, no man can be made a plaintiff—any man a defendant. Into the station of defendant it rests with any individual in the character of plaintiff to force any number of individuals actuated by mutually opposite interests.
5. Proposed respondent, a witness called by the defendant; proposed interrogator, the plaintiff of his advocate.
Here the presumption is, that the affections of the proposed respondent are adverse to the proposed interrogator. But, under the first case, it may already have been seen in how high a degree, in the present case also, that rule is exposed to failure.
6. Proposed respondent, a witness called by the plaintiff; proposed interrogator, the defendant of his advocate.
What belongs to this sixth case may be seen in what has been said of the last preceding one.
7. Proposed respondent, a defendant; proposed interrogator, the judge.
Here the presumption—the first presumption at least—is, that, as towards the defendant, the affections of the judge are neutral.
But where the case has been a criminal one, and more particularly of the most highly penal class, under the secret modes of inquiry which have been generally in use in the Roman school,—the judge, in many instances, uniting to that neutral the partial function of plaintiff,—a suspicion that has trod fast upon the heels of that presumption is, that an occasional wish has place on the part of the judge (whether in prosecution of his own inclinations or those of some other member or members of the government) to find pretences for misdecision to the prejudice of the defendant’s side.
After the above exemplifications, the extension of the inquiry to the several other diversifications of which the relation as between proposed respondent and proposed interrogator is susceptible, will, it is imagined, be found to present but little difficulty.
Distinction between amicable interrogation and interrogation ex adverso.
Not for completeness only, but for correctness likewise, suggestion ab extrà, such as it is of the nature of interrogation to afford, and occasionally perhaps almost any suggestion that it is in the power of interrogation to afford, may be necessary; and this, whatever may be the state of the interests or affections of the respondent, as towards the person by whom, or in whose behalf, he is interrogated.
It may be necessary where the affections of the respondent are indifferent, or even partially favourable, as towards the interrogator; for, on any ordinary occasion on which you seek for information (if the subject be of a certain latitude,) apply to your most intimate friend—let him be fluent in speech as well as communicative in disposition—how seldom will it happen that a single question (how comprehensively soever framed) will be sufficient to draw from him all the information you wish to receive!
Interrogation from an interrogator, between whom and the respondent the affections are in either of these states, may, to distinguish this case from the opposite one, be termed amicable interrogation.
But the case in which the demand for this security is by far the stronger and more conspicuous, is that where between the two interlocutors there exists a contrariety of interests or affections.
Interrogation in this case may be termed adverse interrogation: interrogation ex adverso, or ex opposito.
In a former section, different descriptions of persons, in considerable and almost indeterminate variety, have been brought to view, as being upon occasion capable of rendering service to justice by contributing to the extraction of the light of evidence; in particular, the parties on both sides (with their representatives,) the judge, and extraneous witnesses.
In the language of English law, there are two descriptions of persons, and but two, from the consideration of whose relation to the cause the operation of interrogation or examination receives a particular denomination. When the deponent (being an extraneous witness) is interrogated at the instance of the party by whom his testimony was called for, he is said to be examined in chief—his examination is styled the examination in chief: when, immediately after such his examination in chief, he is interrogated on the part of a party whose station is on the opposite side of the cause, he is said to be cross-examined—the examination is termed his cross-examination.
Attached in general to the circumstance of his being examined by that side of the cause by and from which his testimony was called for, is the notion of his affections being favourable to that side of the cause, and thence of a willingness on his part to give a correspondent shape and complexion to his responses. Attached in like manner to the circumstance of his being examined on that side of the cause which is opposite to that by and from which his testimony was called for, is the notion of his affections being unfavourable to that side of the cause, and of a corresponding adverse shape and complexion given to his responses.
And, from this supposition, practical rules of no slight importance have been deduced.
Were this notion uniformly correct, then, and in that case, examination ex adverso would be synonymous with cross-examination. But we have already seen how far this notion is from any such uniform correctness.
To the supposition of an agreement or disagreement of interests, that of a correspondent relation of affections naturally attaches itself. Concerning this relation (of whichsoever of the two opposite kinds it be,) the natural supposition is, that it is mutual, and even (in default of reasons to the contrary) equal. Neither this equality, nor even that mutuality, is, however, as is sufficiently known to everybody, constantly verified in practice. When either the term amicable interrogation, or the term adverse interrogation (or rather interrogation ex adverso) is employed, then the above-noted irregularities ought not to be overlooked.
Where the exertions of one of two parties (the interrogator) are employed in the endeavour to bring to light a fact, or other object, which the exertions of the other party are all the time employed in the endeavour to keep back,—on the part of that one of them on whom the force is thus endeavoured to be put, the existence of an emotion of the angry kind, to a degree more or less intense, can scarcely be supposed to be altogether absent: more especially if, with reference to the respondent, the obvious consequences of the disclosure be of a nature decidedly and eminently penal; such as the loss of property, liberty, reputation, or life.
At the same time, on the part of the interrogator, on that same afflicting occasion, the supposition of an emotion of the angry kind (looking towards the unhappy respondent) is far indeed from being a necessary one; as in the case where, on that same occasion, the melancholy function is in the hands of a humane and upright judge.
To warrant the employment of this necessary term, it therefore is not necessary that the emotion or the natural ground should exist on the part of both interlocutors: it is sufficient if it exists on either part. Be it reciprocal, or but unilateral,—in either case there will be the same reluctance on the part of the respondent—the same sort of unwillingness as to the yielding the information which it is the endeavour of the interrogator to extract: the same psychological difficulties and obstacles will therefore be exerting their force in the endeavour to prevent the testimony from possessing that degree of completeness and correctness with which, for the purposes of justice, it is so necessary that it be endowed.
Nor is this sort of dialogue between interlocutor and interlocutor, the only relation by which the sort of opposition above described, and the consequent danger of incompleteness and incorrectness, is liable to subsist.
The interrogator being a party (say the defendant,)—let the respondent be an extraneous witness, called by an opposite party (the plaintiff,) and already interrogated by or in behalf of that party; and, in point of affections, let the witness be, with reference to each party, altogether unopposite—equally indifferent, to both, or equally a friend to both. The string of questions put to the witness being completed, will his evidence be altogether correct, as well as complete? Correct, seldom; complete, still more seldom. Why? Because, in quality as well as quantity, the facts delivered by the respondent will naturally have been influenced, more or less, by the nature and object of the questions, and hence by the object which the interrogator had in view: and the object which the interrogator had in view probably embraced the keeping back a part (more or less considerable) of the facts considered as likely to operate to his prejudice; and almost to a certainty did not embrace the bringing forward any such facts.
In this case, then, the interrogation,—though not adverse with relation to any interest, or affection, or emotion, of the person interrogated,—may, with not the less propriety, be termed interrogation ex adverso—ex adverso with relation, not to the respondent himself, but with relation to an antecedent interrogator.
In the case just put, the affections of the respondent were, with reference to the party by or in whose behalf he is under interrogation, supposed to be in a state of indifference. But a case not less natural, and indeed considerably more natural, is a state of favourable partiality. In this case, the obstacles tending to prevent the completeness and correctness of the testimony, the obstacles which the interrogator has to contend with, act (it is evident) with additional force.
On the other hand, while it is certain that the interests and affections of the preceding interrogator will be opposite with relation to the interests and affections of the succeeding interrogator, a case which, though comparatively unfrequent, is notwithstanding sometimes verified, is, that the affections of the witness shall be partial, in favour not of the party by whom he was called, but of the party adverse to the party by whom he was called.
This being the case, the force tending to produce incorrectness and incompleteness on the part of the testimony,—the force against which the second interrogator has to contend,—this force, considered in respect of its dependence upon the state of the affections of the three several individuals bearing a part in the business, admits of three cases or gradations:—Case 1. The respondent favourable to the second interrogator: Case 2. The respondent indifferent: Case 3. The respondent adverse to the second interrogator.
When the respondent is a mere witness (an extraneous witness,) himself without interest or affection in the cause,—on the part of the judge, the process of interrogation is scarcely susceptible of either of the pair or adjuncts, amicable or adverse. The witness has no desire to keep back anything: the judge has, or at least ought to have, a desire to get out everything—every fact and circumstance (in favour of whichsoever side it may chance to operate) that promises to be material to the cause. To prevent the judge from getting whatever evidence the source affords, there is nothing on his part but want of skill, want of appropriate information to direct his interrogatories, and deficiency of zeal, as above.
When the respondent is a party, the judge, in the character of an interrogator, cannot fulfil his obvious and acknowledged duty,—cannot do in every instance what depends upon his exertions towards giving completeness and correctness to the aggregate mass of testimony,—without occasionally presenting to the party (according to the nature and tendency of the fact sought—according to the side in favour of which it operates) two opposite aspects; the one amicable, the other adverse, amicable, in so far as the fact sought for promises to operate in favour of the respondent’s side; adverse, in so far as it promises to operate against that side, or (what comes to the same thing) in favour of any opposite side.
Of the question put by the judge to an extraneous and indifferent witness, not one (it has just been observed) can be termed either amicable or adverse in relation to such respondent witness. But, of the same questions, not one (so it be material to the purpose) can fail of being at once amicable and adverse with reference to the parties: amicable, with relation to the one; adverse, in the same degree, with relation to the other.
In a criminal case—at least if it be of that class of criminal cases which presents no individual in the character of a party injured,—there being but one individual whose interest is at stake (viz. the defendant,)—in the language naturally employed on this occasion, that one individual is the sole object in view: and he, and he alone, is the party with relation to whom the adjuncts amicable and adverse are employed.
Considered, then, with relation to this individual, it will be always true to say, in speaking of the whole string of interrogations put to him by the judge, that the aspect manifested by the judge, in respect of them, to the defendant, ought to be at once amicable and adverse: and on this occasion, each of these adjuncts may be employed with propriety, so the other be at the same time employed with it; neither can, without the most flagrant impropriety, be employed alone.
That, in respect of his interrogatories, the aspect of the judge ought to be adverse to the defendant (who, in a case where the arrangements of procedure bring him into court in a state of confinement, is called, in the language of English law, the prisoner,) if nothing be said of what it ought to be on the other side,—is a proposition too monstrous, too revolting, to have ever been advanced. How often soever it may have been pursued in practice, in discourse no such monstrous maxim has ever been professed.
That, in the same respect, the aspect of the same public functionary ought to be amicable to the prisoner, in the sense just mentioned as attached in this case to the term amicable (the same silence being observed as to the opposite aspect, with which it is necessary it should be accompanied, if it be reconcilable to the ends of justice,) is a proposition equally monstrous, though in an opposite way; and equally repugnant to the ends of justice; but, unhappily (such has been the weakness of the public mind,) not equally revolting: and it is under favour of this weakness that currency has been given to one of those sophisms, under which, by the artifices of hypocrisy, the grossest selfishness and the most sordid corruption have succeeded in imposing themselves upon mankind under the names of humanity and virtue.
I speak of the current maxim, that the judge ought to be of counsel with the prisoner—meaning the defendant, in a prosecution which subjects the defendant to provisional imprisonment for safe custody. This proposition, being in one sense indubitably true and consonant to justice, but liable to be taken, and most commonly taken and applied, in a sense in which it is false and hostile to justice, bears no inconsiderable part among the causes that concur in keeping up the stock of crimes in its present state of abundance.
In every cause, these are at least two sides—that of the plaintiff, and that of the defendant. In every cause it is the indisputable duty of the judge to do what depends upon him towards bringing to light all the material facts which the cause is capable of furnishing; whatever facts make in favour of the one side—whatever facts make in favour of the other. To apply his endeavours to bring to light such of the facts as promise to operate in favour of that side of the cause on which he is engaged, is at any rate the function (not to enter into the question of duty) of the counsel, the advocate, on that side—in favour of the defendant’s, the prisoner’s side, when engaged on that side. In this sense it is the equally indisputable duty of the judge to be of counsel with the defendant. His duty? Yes: but on what condition? On condition of being of counsel in the same sense, and to the same purpose, on the opposite side—on the side of the prosecutor, or other plaintiff. On every occasion, and to whatever purpose—on which side soever the truth promises to operate, it is his duty to use his endeavours to bring it out. Giving this double direction to his endeavours, he serves both sides of the cause.
Now, of the man who serves both of the opposite sides of a cause, it cannot be denied but that he serves each of them. Take which side you will, it cannot be denied but that he serves that side—it cannot be denied but that he acts as counsel on that side.
Here, then, lies the mischief. Beneficial and justifiable in one sense,—the proposition is employed in another sense, in which it is pernicious and unjustifiable. It is only on condition of his occupying himself with equal industry in favour of the opposite side, that it is the duty of the judge—that it is otherwise than a crime in the judge—to occupy himself in the way in question, or in any other way, in favour of the other. Set aside this indispensable condition, it is a crime on the part of the judge to occupy himself in favour of either side. In point of propriety, next after impartial activity comes impartial negligence.
Fairly translated, stripped of its disguise, what is the argument of this sophism? It is the duty of the judge to be impartial;—therefore it is his duty to be partial.
Question of duty once more set aside,—it is the function, at any rate it is the constant occupation, of the counsel for either side—of the counsel for the defendant, of the counsel for the prisoner—to use every endeavour that the law does not forbid, towards procuring success for that side—towards procuring an acquittal for the defendant his client; whether he be innocent or guilty, whether by truth or falsehood (so the falsehood be unpunishable,) are questions which make no difference—questions not worth thinking about—questions that in practice are not thought of, nor, according to current axioms, have any need or title to be thought of.
A man has committed a theft; another man, who, without a licence, knowing what he has done, has assisted him in making his escape, is punished as an accomplice. But the law (that is, the judges, by whom in this behalf the law has been made,) have contrived to grant to their connexions acting in the character of advocates, a licence for this purpose. What the non-advocate is hanged for, the advocate is paid for, and admired.
Among the expedients that have been contrived for selling impunity to such criminals as have wherewithal to purchase it, is the invention which will be hereafter spoken of under the appellation of a decision on grounds foreign to the merits.* To discover all grounds of this sort that can be discovered, and, as often as any such ground can be discovered, to call for a decision productive of an acquittal to the delinquent defendant, is among the functions of the counsel when enlisted in the criminal’s service. Justifying, and even commending, on the part of the judge, discoveries of the same kind, is one of the most favourite of the services on which the maxim here in question is wont to be employed. It is the duty of the judge to do that which, if he were not a judge, or a man of law in some other shape, he would be punished (and not without reason,) in the character of an accomplice, for doing.
Of a rational and honest aphorism on this subject, what would be the purport and effect? That the judge ought to be counsel for all parties, and that in all sorts of causes. Not in criminal causes alone, and such criminal causes alone in which the defendant is in the condition of a prisoner,—and in those causes on the side of the defendant alone; but alike for all parties, and in all sorts of causes. Where is the cause in which any the slightest departure from the rule of impartiality is, in the eye of justice and reason, anything less than criminal on the part of the judge? Not that a mere negative impartiality is sufficient; a positive, an active impartiality, must be added to it: to be equally active in his endeavours to search out the truth on both sides,—that is the true impartiality, the only true and proper sort of impartiality, befitting the station of the judge.
Thus much is true, indeed,—that, next to the positive and negative impartiality conjoined, comes negative impartiality alone: next to his taking equal pains to search out the truth on both sides, is his not giving himself any concern to search it out on either side.
The psychological cause of this adage—is it worth looking for? In the currency given to it, humanity, or rather childish weakness, may possibly, in here and there an instance, have had a share;—hypoerisy, selfishness covering itself in the mask of virtue, is in every instance a more probable cause. It is among the artifices employed by lawyercraft to reconcile the public mind to the sale of indulgences, elsewhere spoken of. Decision in favour of the defendant on a ground foreign to the merits—decision grounded on a quirk or quibble—is among the instruments by which this species of traffic has ever been carried on.
In the individual instance in which the quibble is not only applied to this purpose, but discovered, by the judge, no immediate profit, perhaps, results to anybody: either there is no counsel, or if there be, the counsel, without the quibble, and for the mere chance of his finding out that or some other quibble, has received his fee.
But the practice itself is, in its own nature, shocking to common sense and common honesty: the public mind, had it not been duped and gulled, could never have contemplated it without the indignation and scorn it merited. A sophism, therefore, was to be invented for that purpose—a lying spirit was to be sent forth to deceive the people: and this was the imp that offered itself.
The traffic would not have been borne in any case, if the credit of the commodity had not been kept up in all cases: and nothing could contribute more powerfully to keep up the credit of the sophism, than the distributing it through the pure (and to appearance unpaid) hands of the judge. The policy is no secret to any species of impostor: like the husbandman, he knows when to scatter as well as how to gather in: the quack, that he may sell the more of his pills at one time, distributes them gratis at another.
Without strict search, assertion is not to be ventured: but, from principle, I should not expect to find that the adage had ever been employed to any other than a bad purpose. How should it? Good wine needs no bush: putting a pertinent question, bringing to light the innocence of the innocent, needs no apologies, no adages.
Nothing can be more artful than the sophism—nothing more guarded, more impregnable. Who shall contest the truth of it? Fallacious in the highest degree, no one can say that it is false. It is like one of the two sides of a correct account. So far as it goes, it is all pure justice: stop there and sink the other side, it is the quintessence of injustice. But so sure as the account thus drawn up by lawyercraft is produced, so sure is one of the sides sunk.
The English judge—would he dare to put to a guilty defendant so much as a single question that might throw light upon his guilt? Not he indeed. The sophism nursed up so carefully by his predecessors for the benefit of the common cause—the sophism here in question, is not of the number of those which a judge can bring forward or put aside as caprice may dictate: firm as a rock, his power would be shaken by it, were he to venture to attack it.
The policy has still deeper root: it is for this cause that cruel punishments are to be multiplied; and in particular that the punishment of death (a punishment not good in any case) is, as opportunity serves, to be extended to all cases. The more barbarous the punishment, the less disposed is the public mind to scrutinize into the pretences by which here and there a vietim is preserved from it.
For this cause amongst so many others, the punishment of death has ever been, and (so long as lawyercraft reigns) will ever continue to be, a favourite policy with the English lawyer.
A connexion, says Cicero, may be traced between all the virtues: a connexion still more obvious may be traced between the several branches of injustice. Injustice to the defendant’s side, injustice by excess of punishment,—and injustice to the prosecutor’s side, injustice operating by quibbles,—are consanguineous vices—vices that act in partnership, and play into one another’s hands.
[* ]A case for the writ called ne exeat regno, in English equity practice.
[† ]In English law, in all the cases in which a man is laid provisionally under restraint pendente lite, the testimony on which the restriction is grounded is in the uninterrogated form, that of an affidavit.
[* ]Book IX. Exclusion. Part V. Double Account.
[* ]The following are cases, in which, if there be interrogation at all, there is but one person by whom it can be applied.
[* ]I. A plaintiff deposing, may be interrogated by or in behalf of the characters following: viz.
[* ]See Book IX. Exclusion.
[* ]Book III. Extraction. Chap. V. Browbeating.
[† ]Book III. Extraction. Chap. III. Suggestive Interrogation.
[* ]Book III. Extraction. Chap. VIII. Modes of Interrogation compared.
[* ]In case of supposed perjury, for the purpose of eventual forthcomingness and justiciability, power has, by a special law, been given to the judge to commit the supposed perjurer on the spot. and to order prosecution at the expense or a public fund.
[* ]The same reasons will serve to show that a plaintiff, on the occasion of his delivering his testimony, should be subjectible to interrogation, even by or in behalf of a fellow-plaintiff. If the interest of the fellow-plaintiff coincide with that of the plaintiff who is about to depose, there is at any rate the chance of additional skill, added to that of additional appropriate information: it the interest of the fellow-plaintiff is different in any respect from that of the plaintiff who is about to depose, the situation of the fellow-plaintiff coincides in that respect with that of a defendant. On the score of danger of mendacity-serving information, the same objection as above may be brought, and the same answer may be given to it.
[† ]Whatever be the number of persons whose interest in any shape is at stake in the cause, each having a separate interest, and demanding to be allowed to do whatever may be lawful and necessary for the support of such his interest (be his demand positive or defensive,) there is as much reason for acceding to one such demand as to another. Audi alteram partem—hear the other side—is the phrase by which this universally applicable and universally undisputed conception appears commonly to have been expressed: such, at least, is the interpretation which that maxim requires to be put upon it, ere it can be admitted to have embraced on this ground, to their full extent, the exigencies of justice. By altera pars, understand every separate interest: for each part, each interest, is altera with reference to to every other. Under audi comprehend the giving allowance to every lawful act, the performance of which is necessary to the support of each such interest. To adduce or exhibit sources of evidence, is one such act: to take a part in the extraction of the evidence from the several sources adduced, by whomsoever adduced, is another: to present to the judge observations on the evidence so extracted, is again another. In any given cause, if the allowance of any one of these operations be necessary to justice, so is that of every other: if in any one cause the allowance of them all is necessary to justice, so is it in every other. If, among three operations such as these, to all of which it may happen to be necessary to justice that they should be respectively performed, there be any one which is less certain of being necessary than the two others, it is the one last mentioned, viz. that or presenting observations. The testimony of Titius, in the character of an extraneous witness, may of itself be so correct and complete, as to supersede all demand for skill and labour to be employed in the extraction of any supplemental testimony from the same source: its application to the demand may at the same time be so plain and obvious, as to render it plainly impossible for it to receive any additional persuasive force from any observations that could be grounded on it. Scrutinized or unscrutinized, evidence may speak, and speak sufficiently for itself: but in a question of fact, observations without evidence would be a discourse without a subject.
[* ]If, on the part of the judge, improbity (which in this case will be a determination or inclination to decide in favour of one side or other, in opposition to the dictates of justice) be supposed; the chance in favour of justice is, in this case, reduced perhaps even lower, than if, the judge being excluded, the right of interrogation were allowed exclusively to the party on one side. For the judge, by the supposition, in point of affection, is, in this case, what the party would be in the other: and for giving effect to his sinister views, the judge possesses powers of which the party is destitute; powers adequate to the accomplishment of the sinister ends.
[* ]Another remark: to extort the truth from the bosom of an unwilling, an unscrupulous, and strong-minded witness, is among the most of difficult tasks: and a pre-eminent degree of fitness for it is one of the brightest and rarest accomplishments that the war of tongues affords to natural talent improved by practice. The judge (as such) never having been, by any motive force equal to that under the action of which the advocate is continually operating, excited to those exertions which are necessary to the exercise of that function with a superior degree of efficiency and success, cannot reasonably be expected to be on a par, in this respect, with an advocate whose stock of experience has been equally abundant.
[* ]Independently, too, of all other causes of favourable partiality, there is something in the relation between party and witness that has a tendency to conciliate the affections and wishes of a witness to the side of that party by whom his testimony is called in.
[* ]Example in civili: Two persons, each in the character of creditor, join in making a demand upon a testamentary executor or other manager of an insufficient fund: it is the interest of each that the other should fail in the proof of his debt.
[† ]Example in criminali: Two persons join in the prosecution of a supposed criminal: one of them, for money or through compassion, is secretly determined to endeavour to bring about the acquittal of the defendant.
[* ]Book VIII. Technical Procedure; Chap. XIV. Nullification.
[† ]In English law, in all the cases in which a man is laid provisionally under restraint pendente lite, the testimony on which the restriction is grounded is in the uninterrogated form, that of an affidavit.
[a]MacMillan’s Form of Writings, Edinburgh, 1790, third edit. p. 389.
[b]The law of England on these points has been materially altered by 1 & 2 Vict. c. 110.