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• Errata—vol. VI. *
• An Introductory View of the Rationale of Evidence; For the Use of Non-lawyers As Well As Lawyers.
• Chapter I.: Title-page Justified.
• Chapter II.: Relation of Law to Happiness—of Procedure to the Main Body of the Law—of Evidence to Procedure.
• Chapter III.: Ends of Justice On the Occasion of Judicature. *
• Chapter IV.: Duties of the Legislator In Relation to Evidence.
• Chapter V.: Probative Force—whence Measured—how Increased—how Diminished.
• Chapter VI.: Degrees of Persuasion—thence of Probative Force—how Expressible.
• Chapter VII.: Causes of Trustworthiness and Untrustworthiness In Testimony—thence of Belief and Unbelief.
• Chapter VIII.: Of the Securities For Trustworthiness In Evidence.
• Chapter IX: False Securities For Trustworthiness In Evidence—oaths and Exclusions.
• Chapter X.: Of the Reception and Extraction of Evidence, Viz. With the Help of the Above Securities.
• Chapter XI.: Collection of Evidence—english Practice.
• Chapter XII.: Of Circumstantial Evidence.
• Chapter XIII.: Of Make-shift Evidence.
• Chapter XIV.: Of Preappointed Evidence.
• Chapter XV.: Difference Between Preappointed and Unpreappointed Evidence.
• Chapter XVI.: Preappointed Official Evidence.
• Chapter XVII.: Extempore Recordation, How Applicable to Legally Operative Facts At Large.
• Chapter XVIII.: Of Derivative, Including Transcriptious, Recordation, Wherein of Registration.
• Chapter XIX.: Exclusion of Evidence.—general Considerations.
• Chapter XX.: Exclusion Continued—causes For Which It Is Proper Or Not, According to Circumstances.
• Chapter XXI.: Exclusion Continued—causes For Which It Cannot Be Proper.
• Chapter XXII.: Exclusions By English and Other Laws—analytic and Synoptic Sketches.
• Chapter XXIII.: Safeguards Against Suspicious Evidence: Including Instructions Concerning the Weighing of Evidence.
• Chapter XXIV.: Authentication and Deauthentication, As Applied to Preappointed and Other Written Evidence.
• Chapter XXV.: Exclusion and Nullification Applied to Contractual Matter, In So Far As Writing Has Been Omitted to Be Employed In Giving Expression to It.
• Chapter XXVI.: Of the Exclusion and Nullification of Contractual Matter, Informally Though Scriptitiously Expressed, In a Transaction Which Has Been the Subject of Matter Formally Expressed.
• Chapter XXVII.: Imprisonment For Debt:—disguised Exclusion of Evidence Involved In It.
• Chapter XXVIII.: Of the Burthen of Proof: On Whom Shall It Lie?— (a Question Produced By Undue Exclusion of Evidence.)
• Chapter XXIX.: Evidence Considered In Its Relation to This Or That Fact In Particular—why Discarded From This Work.
• Chapter XXX.: Evidence In Relation to Particular Facts and Pleadings Under Technical Procldure.
• Chapter XXXI.: False Theory of Evidence (gilbert’s * )—its Foundation:—precedence Given to Written Before Unwritten.
• Chapter XXXII.: Liberalists and Rigorists—parties Belligerent In the Field of Jurisprudence, and In Particular of Evidence.
• Chapter XXXIII.: Conclusion.
• Appendix A.: Cautionary Instructions Respecting Evidence, For the Use of Judges.
• Chapter I.: Propriety of Cautionary Instructions, In Preference to Unbending Rules.
• Chapter II.: Considerations Proper to Be Borne In Mind In Judging of the Weight of Evidence.
• Chapter III.: Considerations Respecting the Effects of Interest In General Upon Evidence.
• Chapter IV.: Considerations Respecting the Effect of Pecuniary Interest Upon Evidence.
• Chapter V.: Situations.
• Chapter VI.: Makeshift Evidence.
• Chapter VII.: Scale of Trustworthiness.
• Chapter VIII.: Best Evidence, What?
• Chapter IX.: English Law Scale of Trustworthiness.
• Appendix B.: of Imprisonment For Debt.
• Section I.: Its Inaptitude As an Instrument of Compulsion.
• Section II.: Its Inaptitude, Applied As It Is As an Instrument of Punishment.
• Section III.: Its Needlessness Demonstrated By Experience.
• Section IV.: End, Or Final Cause of the Institution—judge and Co.’s Sinister Interest.
• Section V.: Means Employed—mendacity and Usurpation.
• Section VI.: Affidavit Previous to Arrest, Its Unfitness.
• Section VII.: Consequence of the Exclusion Thus Put Upon Evidence.
• Section VIII.: Advocates For the Abolition of Imprisonment For Debt—their Errors.
• Section IX.: Scotch Law—cessio Bonorum, Its Inadequacy.
• Section X.: Agenda—course Proper to Be Taken On the Occasion of Insolvency.
• Appendix C.: False Theory of Evidence—(gilbert’s.)
• Rationale of Judicial Evidence, Specially Applied to English Practice. From the Manuscripts of Jeremy Bentham, Bencher of Lincoln’s Inn.
• Preface.
• Prospective View.
• Book I.: —theoretic Grounds.
• Chapter I.: On Evidence In General.
• Chapter II.: Of Evidence Considered With Reference to a Legal Purpose; and of the Duties of the Legislator In Relation to Evidence.
• Chapter III.: Of Facts—the Subject-matter of Evidence.
• Chapter IV.: Of the Several Species Or Modifications of Evidence.
• Chapter V.: Of the Probative Force of Evidence.
• Chapter VI.: Degrees of Persuasion and Probative Force, How Measured.
• Chapter VII.: Of the Foundation Or Cause of Belief In Testimony.
• Chapter VIII.: Modes of Incorrectness In Testimony.
• Chapter IX.: General View of the Psychological Causes of Correctness and Completeness, With Their Contraries, Incorrectness and Incompleteness, In Testimony.
• Chapter X.: Of the Intellectual Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XI.: Of the Moral Causes of Correctness and Completeness In Testimony, With Their Opposites.
• Chapter XII.: Ground of Persuasion In the Case of the Judge—can Decision On His Own Knowledge, Without Evidence From External Sources, Be Well Grounded?
• Book II.: —on the Securities For the Trustworthiness of Testimony.
• Chapter I.: Object of the Present Book.
• Chapter II.: Dangers to Be Guarded Against, In Regard to Testimony, By the Arrangements Suggested In This Book.
• Chapter III.: Internal and External Securities For the Trustworthiness of Testimony Enumerated.
• Chapter IV.: On the Internal Securities For Trustworthiness In Testimony.
• Chapter V.: Of Punishment, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VI.: Of the Ceremony of an Oath, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VII.: Of Shame, Considered As a Security For the Trustworthiness of Testimony.
• Chapter VIII.: Of Writing, Considered As a Security For the Trustworthiness of Testimony.
• Chapter IX.: Of Interrogation, Considered As a Security For the Trustworthiness of Testimony.
• Chapter X.: Of Publicity and Privacy, As Applied to Judicature In General, and to the Collection of the Evidence In Particular.
• Additional Notes to Books I. & II. Chiefly With Reference to Alterations Made In the Law Since the Date of the First Edition,— Viz. 1827.
• Book III.: Of the Extraction of Testimonial Evidence.
• Chapter I.: Of the Oral Mode of Interrogation.
• Chapter II.: Notes, Whether Consultable?
• Chapter III.: Of Suggestive Interrogation.
• Chapter IV.: Of Discreditive Interrogation.
• Chapter V.: Of the Demeanour of the Adverse Interrogator to the Witness, Considered In Respect of Vexation.
• Chapter VI.: Of the Notation and Recordation of Testimony.
• Chapter VII.: That the Evidence Should Be Collected By the Same Person By Whom the Decision Is to Be Pronounced.
• Chapter VIII.: Five Modes of Interrogation Compared.
• Chapter IX.: Epistolary Mode of Interrogation, In What Cases Applicable.
• Chapter X.: Epistolary Mode of Interrogation, How to Apply It to the Best Advantage.
• Chapter XI.: Helps to Recollection, How Far Compatible With Obstructions to Invention?
• Chapter XII.: Of Re-examination, Repetition, Or Recolement.
• Chapter XIII.: Of Spontaneous Or Uninterrogated Testimony.
• Chapter XIV.: General View of the Incongruities of English Law In Respect of the Extraction of Evidence.
• Chapter XV.: Mode of Extraction In English Common-law Procedure—its Incongruities.
• Chapter XVI.: Mode of Extraction In English Equity Procedure—its Incongruities.
• Chapter XVII.: Mode of Extraction In English Ecclesiastical and Admiralty Courts—its Incongruities.
• Chapter XVIII.: Incongruities of Roman Law In Respect of the Extraction of Evidence.
• Chapter XIX.: Of Confrontation Under the Roman Law.
• Chapter XX.: Recapitulation.
• Book IV.: Of Preappointed Evidence.
• Chapter I.: Of Preappointed Evidence In General.
• Chapter II.: Of Instruments of Contract In General.
• Chapter III.: Of the Enforcement of Formalities In the Case of Contracts.
• Chapter IV.: Formalities, What Proper, and In What Cases?
• Chapter V.: Of Wills, As Distinguished From Other Contracts.
• Chapter VI.: Of Preappointed Evidence, Considered As Applied to Laws.
• Chapter VII.: Of Public Offices At Large, Considered As Repositories and Sources of Preappointed Evidence. *
• Chapter VIII.: Of Official Evidence, As Furnished By Judicial Offices.
• Chapter IX.: Of Preappointed Evidence, Considered As Applied to Legally-operative Facts At Large.
• Chapter X.: Of the Registration of Genealogical Facts, Viz. Deaths, Births, and Marriages.
• Chapter XI.: Of Offices For Conservation of Transcripts of Contracts. *
• Chapter XII.: Of the Principle of Preappointed Evidence As Exemplified In the Case of Real Evidence (evidence From Things.)

CHAPTER III.

OF SUGGESTIVE INTERROGATION.

§ 1.

Reasons against the absolute prohibition of Suggestive Interrogation.

By a suggestive interrogation, is meant an interrogation by which the fact or supposed fact which the interrogator expects and wishes to find asserted in and by the answer, is made known to the proposed respondent. Is not your name so and so? You live at such a place, do not you? You live as a servant with the defendant?

The term is from the Roman school of law; but, without suggesting the idea of Roman or any other law, to the mind of every person to whom the English language is familiar, it suggests readily enough the import above ascribed to it.

Leading is the word employed instead of it by English lawyers. To a non-lawyer, the import meant to be conveyed is not suggested so readily and distinctly (it at all) by this word, as by the word suggestive. It affords, however, the convenience of being applied in cases in which the word suggestive is not applicable. You must not lead your own witness, says one rule one hears among English lawyers: you may lead your adversary’s witness, says another rule one hears in the same school.

Concerning the propriety of these rules, and of the distinction on which they turn, inquiry will presently be made.

That the response ought in every instance to be the expression of the actual recollection of the proposed respondent, and not the allegation of another person, adopted by the respondent, and falsely delivered as his own, is sufficiently manifest. That whatsoever measures may be necessary for the prevention of this effect should constantly be taken, is in like manner manifest. But they belong not to this head.*

The purposes for which an interrogation of the suggestive kind may be not only not prejudicial, but conducive, to the ends of justice, seem reducible to two heads, viz. dispatch, and assistance. In the first case, the interrogation is suggestive in form only; in the other, in substance and effect.

Take, in any individual case, any individual interrogation,—and suppose it subservient to the purpose of dispatch, and of dispatch only, not yielding in any shape any assistance to the proposed respondent; the innocence and the utility of it are by the supposition established: the innocence, by its not being subservient to incorrectness or incompleteness on the part of the testimony, nor thence to deception and misdecision; the utility, by its being subservient to dispatch, thence operating in diminution of delay and vexation.

In this case, the substance of the matter of fact which the interrogator expects and wishes to find asserted in and by the answer, is made known to the proposed respondent; and therefore the interrogation is suggestive. But the fact made known to him for this purpose being no other than what was known to him already, the suggestion is, by the supposition, of a sort from which no assistance to any plan of mendacity can be derived.

From the purposely short exemplification given above—a specimen by which, as yet, little dispatch is gained, little circumlocution saved—a conception may, without much difficulty, be formed, of much greater savings.

You live at such a place? no saving as yet: Where do you live? would be still shorter. You live as servant with the defendant? some saving already. Under a rigorous prohibition of suggestion, the interrogation might have been drawn into some such form as this:—Have you any acquaintance with either of the parties to this cause? Yes.—With which of them? The defendant.—Of what nature is your acquaintance with him, and whence derived? I live with him as his servant.

In the way of supposition,—and even in practice, where, on the part of the party really concerned in interest, the requisite degree of confidence is not wanting,—the use of suggestion to the purpose of dispatch will assume a greater latitude; if the proposed respondent be a person to whom no disposition to make any such deceptitious use of any fact made known to him can be ascribed; or if the fact, though as yet unknown to the proposed respondent, be of such a nature that, though he were even disposed to make any such improper use of it, it would not be in his power.

The appearance of suggestion affords naturally a sort of suspicion of mala fides: information, therefore, which he knows how to obtain without that appearance, a man will not naturally choose to purchase at that price: to incur a suspicion of that sort, and without use, will be a mark of unskilfulness. Hence, in this way, a young advocate of little experience, who, as such, stands exposed to the imputation of unskilfulness, will not naturally hazard the taking liberties, such as an advocate whose eminence has placed him above the imputation, will take without scruple.†

The second ground for admitting suggestive interrogation, is assistance to recollection.

From what has been said under the head of recurrence to notes, it must have been abundantly manifest that cases exist in which, to the correctness and completeness of testimony, helps to recollection cannot but be necessary.‡

In the ordinary intercourse of life,—in cases where the interest, the manifest and recognised interest, of all the parties, requires that the truth, the whole truth, and nothing but the truth, be brought to light,—where from falsehood (supposing it to come out instead of truth) every interest would be prejudiced, none promoted;—no one but must have frequently experienced how useful and necessary suggestions from without are to the correctness as well as completeness of the statement which requires to be delivered.

By such suggestion, a result which, it is true, may happen is, that (honest recollection not being the object) assistance may be given to mendacious invention, and the production of deception may be the consequence. But from this possibility, no just conclusion against the propriety of admitting the suggestion can be deduced.

In favour of the admission, provided certain conditions be observed, several considerations appear to plead.

1. If the bringing to view the fact or circumstance in question be necessary to the giving effect to the right of the cause, on which side soever it lie—in other words, to the prevention of misdecision; at the same time that, without the assistance in question, recollection of the fact or circumstance cannot take place;—exclude the suggestion, misdecision is the certain consequence.

On the other hand admit the suggestion, and,—though it should happen that, of the request made for the admission of it, a plan of mendacious invention was the final cause,—still deception and misdecision are far, very far, from being the necessary result.

2. The probability of the failure of true evidence through want of recollection, is greater than the probability of mendacious evidence in consequence of assistance afforded by suggestive questions.

On the one hand, honest failure of recollection (a weakness that requires assistance from another quarter, to enable a man to declare and make known the fact as it really happened) is an incident extremely common, and therefore proportionably probable. It is what may happen to every man; and is happening to every man continually, in every man’s experience.

Failure of recollection is most apt to happen in the case of a timid witness, who is least likely to be a mendacious, and in particular a successfully mendacious, witness. By the perilousness and novelty of his situation, it frequently happens that the exercise of a man’s mental faculties, and in particular his memory, is greatly disturbed and weakened. From the facts that constitute the subject-matter of his deposition,—from the traces left by the past perceptions in question in his memory,—his attention is irresistibly called off to the variety of sensible objects with which he is encompassed, and which are so many sources of terror to his mind.

So far as the effect of the suggestion (whether exhibited in the form of a question or in any other) is merely to bring back to the recollection of the witness a true matter of fact, which was really there before,—the effect of it is not prejudicial to truth and justice, but advantageous, and frequently altogether necessary.

The case, therefore, in which the effect of such suggestion is beneficial to the interests of truth and justice, is in experience frequent, and in prospect probable.

On the other hand, the case in which the effect of it is prejudicial to the interests of truth and justice, viz. by promoting mendacity—mendacity successful, that is, productive of deception on the part of the judge,—presents itself (at least in the state of things most frequently exemplified in English practice, in which the interrogation is performed in an open judicatory, on a day foreknown to both parties, and by professional advocates on both sides) as likely to be extremely rare.

1. The mischievousness of suggested information is confined to those cases in which the proposed respondent is pre-disposed to make use of it to a mendacious purpose.

2. Supposing the existence of a disposition to mendacity to be productive of any such pernicious effect, the fact thus conveyed to the knowledge of the proposed respondent, must be a fact the knowledge of which could not have been conveyed to him at any earlier period than the commencement of this his examination. For, at any antecedent point of time, the intimation of it might have been conveyed to him without exciting any suspicion: whereas, conveyed in the way in question, it cannot but be productive of a degree of suspicion such as leaves little danger of its being productive of the effect aimed at by it.

3. In the shape of notes or memoranda supposed to have been taken by the proposed respondent for his own use, the information might, at any antecedent point of time, have been furnished to him,—and that in the permanent form of a written document, much more surely subservient to the proposed sinister purpose, than any such verbal information as is supposed, can be.

4. Even within this narrow space of time, it cannot be conveyed to the proposed respondent (however prone to mendacity), otherwise than in the case of a correspondent disposition to the correspondent species of subornation, on the part of the interrogating advocate.

5. In the station of advocate, misbehaviour in this shape is not at all conformable to the natural state of things: the profit would be improbable, and would accrue to the party: the loss, in the shape of loss of reputation, would be probable, and would fall on the supposed delinquent, the advocate, himself.

6. Suppose the two requisites to the species of improbity in question conjoined; viz. on the part of a proposed respondent, a disposition to apply the information to the purpose of a mendacious statement, and on the part of the advocate, a correspondent disposition to furnish it; and suppose the mendacious statement delivered accordingly: still no harm takes place, unless, mendacious as the statement is, it obtains credence, and deception and misdecision are the consequences.

But the probability of any such deception on the part of the judge, in consequence of the mendacity of the witness, and thence of mendacity itself from this source, is, again, much reduced by the remedial virtue of vivâ voce interrogation ex adverso.

Where the answer to the suggestive question would be decisive, and the truth of it not liable to undergo ulterior scrutiny from a quarter interested in the detection of the falsity of it (if false;) here, indeed, the prospect of success in a confederacy of this kind would be highly favourable, and the probability of the attempt proportionable.

Such, accordingly, would be the case, in the instance of the sort of examination carried on in the Roman mode of procedure in causes in general, and in English procedure in the courts of equity. An advocate of the party frames the question in writing; the officer standing in the place of the judge propounds those questions to the witness vivâ voce; the witness gives his answer accordingly; no advocate present on the side opposite to that in favour of which the witness (in the case of a mendacious witness) violates the obligation of veracity; no advocate to ground a fresh string of questions upon the mendacious answer, for the purpose of bringing the falsity of it to view.

But, under the tutelary influence of cross-examination, the chance of success to a conspiracy of this kind cannot but be rendered highly precarious. The assistance which it is in the power of the supposed confederate, in the station of examiner, to give to the examinee, is but momentary. What he does, is to suggest the supposed matter of fact, the existence of which is to be asserted by the response. But, the suggestion once given, the power of support is gone. The next moment, the mendacious witness sees himself delivered into the hands of the adversary; from whose merciless lips will issue an unknown string of questions, all conspiring to bring to light the truth he has endeavoured to disguise; to expose to view the falsehood he has had the imprudence to advance.

7. As in case of false responsion,—where an attempt has been made that fails of producing deception, the natural effect is to put the judge upon his guard: the natural tendency is thus to prevent deception, and to give birth to a decision in favour of the other side.

Of a question of this nature, the distinctive character is too manifest to be in any danger of escaping the observation of the advocate on the other side, or even of the judge. The degree of suspicion and discredit which it will throw on that side of the cause in favour of which the attempt is made, may be set down as (comparatively speaking) a constant and certain effect; while the undue benefit derivable from it, is but an accidental and precarious one.

In a dubious case, or in a case in which success (bad or good) admits of degrees, undue prejudice to the side on which it is employed, is perhaps upon the whole a more probable result than undue advantage. If, by the advocate on one side, any such attempt be made with his eyes open to the tendency and consequent impropriety of it, it must be in confidence of its meeting with no common degree of incapacity on the part of the advocate on the other side, as well as no common degree of incapacity, or carelessness, or worse, on the part of the judge.

Where it is the known destiny of the evidence to be minuted down and published, the probability of any transgression of this sort seems very small indeed: nor, it is supposed, would the exemplifications of it (if any) be found otherwise than very unfrequent in the printed trials, at least of modern times.

The difficulty of drawing any clear line of demarcation, between the cases to which the prohibition of such suggestions shall, and those to which it shall not, be understood to extend, constitutes another objection to the utility of the prohibition. Look at the histories of these proceedings; documents which English judicature furnishes in such instructive abundance: instances in which the questions, put by an advocate to the witness called in on his own side, wear this suggestive form, present themselves, and present themselves unaccompanied with any objection on the other side, at every page.

In fact, when is it that any objection to the use of them appears to be made? On those occasions on which the use of them presents to view any probable prejudice to the other side. These are but few: and of these few, the cases in which the real cause of the objection is not the adverseness, but the serviceableness, of the suggestion to the extraction of truth, would (I am inclined to think) be found to compose the major part. The witness (an honest witness) is bewildered: a hint to refresh his recollection would set him in the right path. It is for this reason that the party who has truth on his side, endeavours to supply him with that assistance: it is for this same reason that the party who has truth adverse to him, is upon the watch to deprive him of that assistance.

The impossibility of marking out before-hand the cases to which the liberty of suggestive interrogation shall extend, will appear sufficiently manifest to any one who considers the tenor of the two rules of English law mentioned above: rules which, taken together, are by much too absurd to experience (even under the technical system) an undeviating obedience; rules which (like most, if not all, other rules of that system) experience double honour, sometimes in the breach, and sometimes in the observance.

Not lead your own witness?—Why not? Because your own witness is partial to your side; and to such a degree partial as to be ready on all occasions to adopt, and deliver as his own testimony,—to adopt, knowing it to be a lie,—any lie that, from your brief or otherwise, you may be disposed to put into his mouth. Thus measured, thus rational, are the professors of this pretended science, in the conclusions they draw in the way of circumstantial evidence. Principal fact, partiality, even to the length of perjury, on the part of the witness called on any side,—partiality on the part of every witness in favour of any suitor by whom he is called upon to depose. Evidentiary fact proving the partiality, the need I conceive myself to be under of calling upon him for his evidence: the accident of his having been present at the transaction, on the proof of which my chance of justice happens to depend.

What if he happens to have been called on both sides?—a case every now and then exemplified in practice. According to this argument, he must in that case be partial on both sides: determined, in case any such question should be put to him, to perjure himself; and so sure of succeeding in his perjury, and of making each side gain the cause, that he must not be heard on either side.

Lead my adversary’s witness? Why may I on all occasions lead my adversary’s witness? on no occasion lead my own? Because, your adversary’s witness (the witness on whose testimony your adversary’s claim happens to stand) being on that account sure to be partial to your adversary, and against you, you may offer to put into his mouth as many untruths as you please, he will not open it to one of them.

Not to speak of any such outrageous force as to plunge a man into the acceptance of an invitation to commit perjury,—in what proportion of the whole number of causes, may a bias more or less strong in favour of the inviting party (the testimony not having been called for on both sides) be expected? There are three cases—partiality for the invoker’s side, partiality for the adversary’s side, partiality for neither side. Antecedently to particular reasons pleading in favour of the several cases, the aggregate list of witness should be equally divided between the three. That the list of cases in which the partiality is on the invoker’s side* will naturally be the most numerous, is indeed evident enough at the first glance: that it can never be so numerous as to swallow up both the others, might, one should have thought, have been at least equally evident.

Observe that, should it so happen that my adversary’s witness, the witness technically so denominated, the witness whose testimony my adversary is so unfortunate as to be obliged to call for or lose his chance of justice—that this witness of my adversary’s in name, should, in affection, be my witness;—in this case, in the regular course of things, the check opposed to mendacity by interrogation ex adverso has no application. For, it being on behalf of my adversery, that this witness has been examined in chief, the examination to which he is subjected on my behalf is the cross-examination: the supposed adverse examination, which, being itself the check upon the examination in chief, is the last of the two parts of which the whole examination is comprised: the last of all, and which, being itself but a check, has no other to be a check upon it.

In this case, therefore, the security of the cause against mendacity by the assistance of suggestive questions, rests on the honour and regard to character on the part of the advocate and of the judge, not on the preventive power of the prohibitive rule.†

But, forasmuch as it rests on this basis entirely in this case, and to a certain degree in all cases, why should it not rest entirely on this same basis in all cases? that is to say, in the sense of the court respecting the propriety or impropriety of suffering the intimation in question to be conveyed to the witness under examination, regard being had to the interests of truth and justice. Every now and then it happens, that a candid witness, conscious of a defect in his memory, speaks out and says (supposing it for instance the name of a person or a place)—“I cannot this moment recollect the name, but if any person will mention to me that name amongst others, such mention will bring it back to my memory, and I shall be able to distinguish it from the rest.” In virtue of the prohibitive rule here contended against, such assistance is, I believe, generally refused. What I contend for is—

1. In the first place, that, when thus requested on the part of the witness, it should not be refused, but rather granted of course, reserving to the discretion of the judge the power of refusing it.

2. In the next place, that,—when, upon the hesitation or declaration of non-recollection on the part of the witness, the advocate conceives it to be a case in which he may honestly make known a disposition to afford to the recollection of the witness that assistance which it appears to stand in need of,—it should be allowable and customary for him to submit such his desire to the judge. To do so vivâ voce, and therefore openly, might not be in every instance practicable, consistently with the reserves necessary to prevent the communication from being actually made by means of the application by which the liberty of making it is prayed. For maintaining this necessary reserve, one expedient is the handing up to the judge in writing (which might also be done through the hands and with the privity of the advocate on the other side) the suggestion proposed to be made: the other is, to cause the witness to withdraw while the question on this subject is under debate.

In this way, it should seem, might frequently be obtained much light, which otherwise would be lost. And where the information thus afforded ab extrà happened to be at once apposite and true, it would often happen that the truth of it, and the truth of the ulterior testimony drawn forth by this means, would manifest itself by tokens sufficient to put the matter out of doubt. Often will it happen that one fact, thus replaced in a memory from which it had escaped, shall draw out from thence other facts, in a stream, the copiousness and rapidity of which shall leave no doubt of its flowing from the right source: from memory, the seat of truth; not from invention, the source of falsehood.

No objection (it should seem) can consistently be made to the committing it to the judge’s discretion to afford assistance or this sort, in whatsoever case it promises to be subservient to the interests of truth and justice. On this occasion, as on all others, the judge must be supposed fit for his office: all such precautionary arrangements must be supposed to have been made as appear necessary, and without preponderant inconvenience promise to be conducive, to that effect. Such is the presumption on which all reasonings must be built.

§ 2.

Conditions of Allowance.

That, during the process of interrogation, information under the notion of a help to recollection ought not to be communicable by an interrogator to a proposed respondent, without permission openly applied for and granted by the judge; and that, in the event of such permission, it ought to be communicable; has been already intimated.

What remains is, to bring to view the cases in which, with propriety, permission to that effect may be, on the condition above mentioned, granted by the judge.

1. If, on being applied for, it appear to you that the information in question would be more likely to assist the framing a mendacious statement (and that in such manner as to render it detection-proof, and so promote deception), than to improve the testimony either in point of correctness or completeness,—refuse to permit the yielding it: in the opposite case, allow it.

A rule to this effect would be extremely general. But it seems scarcely possible to narrow the power thus given, without diminishing the utility of it.

2. There is one case in which the permission ought evidently to be granted: where, from the multitude and variety of the facts to be spoken to by the proposed respondent, it cannot reasonably be expected that the whole mass of them should have been borne in memory, in such sort as that it shall be in his power, without such assistance, to deliver his testimony in relation to it in a state of correctness and completeness.

Instances might be mentioned in which the necessity of refreshment would be obvious, even in the case of a witness of the most practised memory. An account (for example) containing a hundred items on one side, and as many on the other: disbursements or receipts, all having taken place by or with the privity of the deponent. Some of these, perhaps, it may happen to him to recollect of himself: but is there one man out of a hundred, or a thousand, that (especially if called upon on the sudden) would be able to recollect the whole? At the same time, present to him a list of them, there may be none of them to which he may not be able to speak with decision and with truth.

Accordingly, the presenting to a deponent in this way a ready-drawn account, is matter of general practice; yet what can be more clearly leading, more clearly suggestive?

But here the line between the cases in which on this ground the permission ought to be given, and those in which it ought not to be given, cannot (it is evident) be drawn by any general form of words. The necessity, and thence propriety, of the permission, will depend partly upon the length of the account, partly upon the simplicity or complexity of it, partly upon the mental powers of the proposed respondent.

3. Setting aside the case in which, without any application from the proposed respondent himself, it may be proper that, in the shape of a written document, assistance to his recollection should be administered of course; a rule that upon the face of it seems a reasonable one is this:

Unless the proposed respondent, perceiving (as he says) the need of information from without, in regard to this or that one of the points concerning which he is interrogated, makes application for such information accordingly, (which application will of course be openly made;) let it not be furnished to him. If such application be made by him, it will then rest with the judge to allow it or not, according as (regard being had to rule the first) to his discretion shall seem meet.

4. But if, for want of his being apprised of some matter of fact (which, having or not having been matter of dispute, is sufficiently established,) the proposed respondent has, on the occasion and in the course of his testimony, fallen into some erroneous statement, or assumption, or supposition, by which in any particular, without blame on his part, his testimony has been rendered more or less incomplete or incorrect; in such case it should be allowable to the judge, whether at his own motion, or (if he thinks fit) at the motion of any party, or the advocate of any party (the party by whom the testimony of the proposed respondent was called for not excepted,) to correct the mistake: communicating to the proposed respondent whatever information shall be necessary to that purpose.

5. So, in case of need of suggestive information, manifested by the proposed witness, otherwise than by direct confession or unintentional and blameless error (as above,) for instance, by deportment, in the way of hesitation or otherwise, it may be allowable to the judge, of his own motion, or at the instance of a party (as above,) to tender to the proposed respondent such assistance is shall be requisite: and upon his request to administer it accordingly.

6. Such assistance, if administered, should be administered in such manner as to afford no more information than what, on the supposition of veracity on the part of the proposed respondent, may be absolutely necessary; leaving to be done by his memory whatever can be done by it.

Example. If the name of a person form a material part of the testimony: and the witness, hesitating about the name, declares that if he were to hear it he should recognise it;—give him, along with other names taken at random, the name or names stated as true, by the suggestion of either or both the parties; to the intent that the proposed respondent may make his choice: in which case, let it be the care of the judge so to present to notice the whole list of names, that the names, so chosen respectively by the parties shall not be distinguishable by him from the rest.*

7. Excepting cases in which (as in that above exemplified) the length and intricacy of the string of facts to be spoken to, puts the necessity of suggestive information out of doubt; a precaution that may be of use (at least where the circumstances of the case are of a nature to mark out the testimony for suspicion) is the going through with the examination of the witnesses on both sides, without the suggestive information; and then, and not till then, administering the information, if the demand for it be deemed to continue.*

Under the system of procedure above supposed—under a system of publicity such as the English,—a relation of amity, operating to the prejudice of truth and justice, is, as between the proposed respondent and the interrogator, the source, and only source, of whatever mischief is apprehended from the suggestion.

Under a system of darkness, such as that of the Roman school, the opposite relation (a relation of hostility) constitutes an additional relation from which, in case of suggestion, mischief has (and not without reason) been apprehended; the nature of the suit being penal, the interrogator the judge, the interrogation oral, and no other person present, except a scribe, acting in a state of dependence under the judge.

Accordingly, among the rules of that system are to be found rules prohibiting the use of suggestive questions, and to that end requiring that the interrogator’s proposition shall have for its subject the name of a species, and not of an individual. “Did you see a person, any person, there at that time?” A person—not Titius or Titia: no, nor so much as a man or a woman, if anything turn upon the sex.

In the cases which gave occasion to those rules, the mischief was but too real. But the cause of it was not the suggestiveness of the interrogation, but the darkness in which the power exercised on the occasion was involved; involved and screened from the controuling and salutary influence of the public eye.

In the security afforded by such darkness to judicial misconduct, to the prejudice of either side at pleasure,—it is no more than should be expected, that in this or that instance, the judge will be disposed to bestow impunity on a delinquent,—in this or that other instance, to let tall on the head of innocence the punishment due to guilt.

In the latter case, different expedients will, according to the circumstances of the case, offer themselves to his choice. By dint of terror he may so confound the intellectual faculties of the defendant as to extract from him a sort of assent to any or every question that appears to call for it: by a sort of compact (more or less explicit,) he may engage the defendant to confess a less severely punishable offence of which he is innocent, in hopes of saving himself from the punishment attached to a more severely punishable offence, of which he is also innocent: or, to save all this trouble, he may at once extract from his terror, or his ignorance, a signature, by which he is made to recognise, as a true expression of his mind, a discourse of the confessional cast, the contents of which had never been really presented to his mind.

All this while (as above observed) the cause of the mischief lies merely in the secrecy.

Establish the secrecy, the injustice may be perpetrated, and securely, without the improper mode of interrogation. Substitute due and appropriate publicity to the secrecy, the injustice cannot, with any assurance of safety, be perpetrated by means of that improper practice. Supposing this or that interrogatory to be, in the way in question, improper; by the entering of the interrogatory on the minutes, and the publication of the minutes, the interrogator with his injustice will be exposed to shame. By putting the suggestive question, the judge would but expose himself; unless, by causing the insertion of it to be omitted, he were to falsify the minutes: and, supposing this fraud to be in his power, and practised, the other is of no use.

Remove what there is dangerous in the secrecy, and, at the same time, place all relation of undue amity out of the case,—suggestion, be it ever so pointed and particular, not only is capable of being practised without danger, but, without any inconvenience, is in ordinary use. The invitation given to a man to prejudice himself may be ever so pointed; he may be trusted to for not accepting it.

In English equity practice, interrogatories put on behalf of a plaintiff to a defendant, are rendered suggestive without reserve. So, in English common law practice, in the case of the interrogatories put by the advocate on one side to the witness, who (with or without reason) is, from the side on which he has been called in the cause, presumed to be friendly towards the other.

In the Roman school, in cases not penal, interrogatories propounded by the judge to the defendant, have been drawn up for the purpose by the law-assistant of the plaintiff; and in this case, the darkness being in a considerable degree lightened, and the motives for judicial oppression having little application in comparison with what they have in penal cases, (especially in those in which government is a party, in affection as well as name,) little more inconvenience is produced from the source in question, than in the case of English equity practice, as above.

[* ]The subject they belong to is rather procedure than evidence. Among the arrangements requisite, those that belong to architecture constitute the basis of the rest.

[† ]The saving thus made in point of time is among the many causes which concur in rendering it more pleasant to the judge to have to do with advocates of old established eminence, in preference to juniors.

[‡ ]In the case of any such help to recollection, it may exist in the shape of a written document, and that document in the possession of the proposed respondent: in that case, the help is afforded by recurrence to notes.

But a case that may also exist, is, that it shall be in the possession, not of the proposed respondent, but of the interrogator. Here, then, if not in the particular shape of suggestive interrogation, at any rate suggestion, is justifiable. Look upon that paper—the contents of it are a long account (suppose) of receipts and payments:—do you know anything of the contents? are any and what of them true?

By the same causes by which recurrence to notes may be necessitated, suggestion from without may be necessitated.

In the case of recurrence to notes, was seen the necessity of referring the allowance or disallowance to the discretion of the judge: in this case (as will be seen presently) the same necessity prescribes the same arrangement.

[* ]See Book II. Securities: Chap. IX. Interrogation; § 5. Affections of the interrogators and respondents towards each other, how far presumable? p. 346.

[† ]Of the two corresponding rules, thus equally pregnant with theoretical absurdity, the use made in practice may be expected to be considerably different.

When, in the person of his adversary’s witness, an advocate finds himself in possession of a deponent whose affections are (as, from his relation to the parties or the cause, they frequently will be) manifestly and strongly on his (the advocate’s) side; shame will naturally and almost instinctively restrain him from plying the witness with suggestive questions. Of the two rules—the prohibition absurd in itself, the permission absurd by its inconsistency and undiscriminating generality,—the permissive one (it seems probable) is scarce ever in practice productive of any detriment to the interests of truth and justice. It is so flagrantly absurd, that, in a case where the application of it would be productive of the mischief with which it is pregnant, no man has the effrontery to put it in practice.

The corresponding and opposite rule will, naturally speaking, be far from being alike innocent in practice. In this case, no shame being attached to the enforcement of the rule, the enforcement of it will experience little difficulty. Instances in which, by the influence of this rule, testimony may be sure to be rendered incomplete, and decision thus placed on the wrong side, will indeed be not unfrequently presenting themselves. But a spectacle of this sort is too frequent to make any sensation, or (if it were to make any) too favourable to the general interest and propensity of the men of law, to make any other than an agreeable one. It is an article belonging to the list of exclusionary rules: a set of rules of which almost the whole of the jurisprudential law of evidence is composed: rules which are at once the engines of his power, and the foundation of his claim to the reputation of superior wisdom, and recondite science: rules which, being worshipped one moment, trampled upon the next—adhered to in favour of A, broken in favour of B,—throw open the shop of justice and injustice, leaving no right secure, nor any iniquity without hope.

[Mr. Phillipps (Law of Evidence, 6th Edit. i. 256) says, “If a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the court will in its discretion allow the examination-in-chief to assume something of the form of a cross-examination.” It appears therefore that this rule of judge-made law has to a great degree been set aside by other judge-made law, subsequently enacted.—Editor.]

[* ]The device commonly known (more particularly among sea-faring men) under the name of a round robin, exemplifies the principle; how different soever the purpose has been, to which, in this instance, it has been most apt to be applied.

[* ]This precaution is the exact counterpart of that which will be found to be suggested in Chapter XI. under the head of time for recollection. Examination in the first instance vivâ voce, to preclude the opportunity of mendacious invention: then (if any special demand for recollection-time be presented by the nature of the case) interrogation ex scripto, to be answered in the same mode.