Front Page Titles (by Subject) CHAPTER V.: OF THE DEMEANOUR OF THE ADVERSE INTERROGATOR TO THE WITNESS, CONSIDERED IN RESPECT OF VEXATION. - The Works of Jeremy Bentham, vol. 6
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CHAPTER V.: OF THE DEMEANOUR OF THE ADVERSE INTERROGATOR TO THE WITNESS, CONSIDERED IN RESPECT OF VEXATION. - 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 THE DEMEANOUR OF THE ADVERSE INTERROGATOR TO THE WITNESS, CONSIDERED IN RESPECT OF VEXATION.
This subject presents itself as of the number of those which scarce afford any hold for any determinate rules. A few observations, however, in the way of warning, may not be altogether without their use.
What liberty ought, on this occasion, to be allowed to the adverse interrogator? 1. In the first place, the liberty of doing and saying anything which promises to promote the discovery of material truth, and which at the same time is not productive of vexation to the witness; 2. In the second place, every liberty, the effect of which (although it should be productive of such vexation) promises to be attended with more of advantage in respect of its subserviency and necessity to the discovery of the material truth, than of mischief in respect to any such vexation of which it may be productive.
What liberty ought, on the other hand, to be refused? 1. In the first place, every liberty, the exercise of which, being or not being productive of vexation, has no tendency to promote the discovery of truth; 2. In the next place, every liberty, by the exercise of which (however it may possess that useful tendency) too great a price is paid in the shape of vexation, for the advantage purchased in the shape of furtherance of justice.
Rule 1. Every expression of reproach, as if for established mendacity: every such manifestation, however expressed—by language, gesture, countenance, tone of voice (especially at the outset of the examination,) ought to be abstained from by the examining advocate.
If the tendency of such style of address were to promote the extraction of material truth, at the same time that the action of it could not be supplied to equal effect by any other plan of examination,—the vexation thus produced (how sharp soever) not being of any considerable duration, the liberty might be allowed, with preponderant advantage for the furtherance of justice.
But, on a close investigation, no advantage, but rather a disadvantage, even in respect of furtherance of justice, seems to be the natural result of an assumption of this kind. The instrument by which mendacity is detected, or deterred from the attempt, is the representation of facts inconsistent with the false assertions advanced or meditated: facts established on other grounds, viz. improbability of the opposite facts, indubitable testimony from other quarters, or other assertions advanced by the witness himself on other occasions or on the occasion in hand. The effect of any such contradictive and damnatory manifestations will be in itself sufficiently impressive, and needs not the assistance of any such force as it may be in the power of the advocate, in the way of rhetorical or dramatical artifice, to apply. Their operation will be proportioned to, and dependent upon, the cogency of the argument derived from the contradiction afforded to the statement of the witness by those other adverse testimonies.
Even in the course of the examination, and after having received whatever warrant it is capable of receiving from whatever symptoms of mendacity may have transpired,—it seems to be neither necessary, nor (in comparison with such unobjectionable resources as have just been mentioned) preferably conducive, to the purposes of truth and justice.
At the outset of the adverse examination, and therefore before this style of demeanour can have received any warrant (at least in the eyes of either the judge, the by-standers, or any person besides the advocate himself who is displaying it,) it seems adverse to the interests of truth and justice; and that in more ways than one.
Of the legitimate mode of attack—the attack by the force of adverse facts—the impressiveness depends upon the force of such adverse facts, and is stronger and stronger in proportion as the mendacity is more enormous, and (if undetected) pernicious: the magnitude of the force rises, with the legitimate demand for it, occasioned by the improbity of the individual to whose mental feelings it is applied.
Of the opposite mode of attack, the impressiveness proportions itself, not to the improbity of the witness, but to his sensibility, his natural timidity—a weakness much more naturally allied to probity than to its opposite. By reproachful and terrifying demeanour on the part of a person invested with, and acting under, an authority thus formidable, it seems full as natural that an honest witness should be confounded, and thus deprived of recollection and due utterance, and even (through confusion of mind) betrayed into self-contradiction and involuntary falsehood, as that a dishonest witness should be detected and exposed. The quiet mode above described is not in any degree susceptible of this sort of abuse, the outrangeous mode seems more likely to terminate in the abuse than in the use.
In another way,—far from being conducive to the detection or prevention of mendacity,—it has a tendency to serve the side of injustice, by exciting in the mind of the judge (especially in the case of a non-professional and unpractised judge, the juryman,) prepossesions injurious to an honest witness, and prejudicial to the interests of truth.* The contageousness of persuasion, real or pretended, is no secret to the observing mind.
In the sort of treatment thus given to a witness, two distinguishable injuries may commonly be seen united: the imputation of guilt cast upon the witness, in the way of assumption, frequently without any ground at all, and always without the justification afforded by antecedently apparent grounds; this unwarranted imputation, coupled with the assumption of a sort of magisterial authority over the witness by the advocate. Howsoever it may be in respect of the imputation, the assumption of the authority cannot but be acknowledged to be without ground. For any authority over the witness there is no better pretence on the part of the advocate than there would be on the part of the party: on the part of the agent than on the part of the principal, in whose place he stands, in whose behalf he acts. That the witness is all the while under the pressure of an obligation, moral as well as legal, is not to be disputed: that the party, to the prejudice of whose cause the testimony tends, possesses a right corresponding to that obligation, is as little to be denied: that the advocate, standing in the place or by the side of his client, is entitled to the exercise of that right in its full extent, is equally clear, but as to power, authority, anything of that sort, there is but one sort of person to whom any privilege of that sort can with propriety be ascribed, and that is, the judge.
As to the advocate: whatever restraints in respect of moderation and decorum are binding upon the party, are, in point of justice, equally binding upon this his representative.
Rule 2. Such unwarranted manifestations, if not abstained from by the advocate, ought to be checked, with marks of disapprobation, by the judge.
In the presence of the judge, any misbehaviour, which, being witnessed at the time by the judge, is regarded by him without censure, becomes in effect the act, the misbehaviour, of the judge. On him more particularly should the reproach of it he; because, for the connivance (which is in effect the authorization) of it, he cannot ever possess any of those excuses, which may ever and anon present themselves on the part of the advocate.
The demand for the honest vigilance and occasional interference of the judge will appear the stronger, when due consideration is had of the strength of the temptation, to which, on this occasion, the probity of the advocate is exposed. Sinister interests in considerable variety concur in instigating him to this improper practice.
1. In the way above mentioned, an advantage is naturally derived to his cause: especially (or rather exclusively) if it be a bad one; labouring therefore, in proportion to its badness, under the need of seeking its support in such undue advantages.
2. His zeal in behalf of the interest of his client, finds in this sort of impassioned demeanour an occasion of displaying itself.
3. The love of power, the appetite for respect and deference (passions inherent in the species, and in a particular degree brought into exercise by the profession,) find in this display of superiority a gratification suited to their nature.
Rule 3. When, on the false supposition of a disposition to mendacity, an honest witness has been treated accordingly by the cross-examining advocate (the judge having suffered the examination to be conducted in that manner, for the sake of truth)—at the close of which examination all doubts respecting the probity of the witness have been dispelled,—it is a moral duty on the part of the judge to do what depends on him towards soothing the irritation sustained by the witness’s mind; to wit, by expressing his own satisfaction respecting the probity of the witness, and the sympathy and regret excited by the irritation he has undergone.
That, in any considerable degree, any such sympathy should in any such station really have been felt, is not reasonably to be expected: any more than, on the part of the hunter, for the agonies of the deer whom he has been running down. But the occasions in judicature are not wanting, in which a sense of decorum, and a usage that has been grounded on it, has commonly the effect of giving birth to demonstrations of that kind. In a case of expectation, by which the sympathetic feelings of the by-standers are understood to be excited, when sentence comes to be pronounced upon a criminal,—along with the naturally and properly predominant expressions of sympathy for the suffering interests of the public, expressions of sympathy for the sufferings of the guilty individual are as naturally and properly intermixed. It is one of the common-places of judicial oratory—of judicial acting, upon the forensic theatre. The addition presents itself as one that would neither be unuseful nor undue, if, to these expressions of sympathy for the individual justly wounded by the hand of law, correspondent demonstrations were as regularly added, having for their object the healing the wounds unjustly inflicted by the hand of the lawyer.*
The subject is manifestly of the number of those which admit not of regulation, in any coercive shape. But the more completely unsusceptible it is of regulation, the more urgent the demand it presents for instruction; which, where regulation is inapplicable, is the sole, nor by any means inefficacious (though to English law almost unknown) resource. The more inapplicable the force of the political sanction is, the greater the need for calling in that of the moral, and applying it to the best advantage. That the strongest checks to misconduct cannot be applied, is surely no reason why the benefit of even the mildest and gentlest should be refused.
The remedy most applicable (and from being so simple it is not the less efficacious,) is publicity.
Against malpractice more directly and obviously adverse to the ends of justice, a remedy applied by the legislature at a very early period of the history of the judicial system, is to be found in the instrument called a bill of exceptions. Whatever, in the judge’s charge to a jury, is regarded as being improper, is, at the instance of the party or his advocate, committed to writing, and the judge, on being called upon, is bound to recognise it; whereupon, in case of appeal, the very words are referred to the cognizance of a superior judicatory.
If, without the formality of an appeal to a legal judicatory, provision were in like manner, in the case here in question, made, for laying the history of the transaction duly authenticated before the moral judicatory of the public,—the abuse would find, in an expedient thus simple, a check too efficient to be consented to by those whose power of inflicting injury on pretence of justice would be thus put under restraint.
In the case of those trials of which, in respect of their importance, it is foreknown or expected that what passes in them, being taken down word for word by short-hand writers, will be printed for general sale; this abuse is exemplified (if at all) in a very inferior degree.
A set of monitory rules (and it would not need to be a voluminous one,) hung up in the form of a table, in characters large enough to be legible to all eyes at once,—a set of rules, prescribing what is proper to be prescribed, forbidding what is proper to be forbidden, respecting the deportment of the several classes of the dramatis personæ on the forensic theatre,—(to be prescribed or forbidden, with or without penalties, according as penalties were applicable or inapplicable)—would, surely, not be an unsuitable article of furniture in a court of justice.
If, in such a table of rules, the practice of brow-beating were noticed (though it were but in the gentlest terms) as a practice to be avoided, it is scarcely possible to doubt that it would be eradicated altogether.
[* ]The English practice affords no adequate security against the effects of brow-beating, grimace, and the misleading arts of an adverse counsel. If no witnesses are called for the defendant, the plaintiff’s counsel not having the right of reply, can administer no antidote or corrective to them: if, on the other hand, witnesses are called for the defendant, the plantiff’s counsel has the last speech and last cross-examination, and the defendant’s counsel has no opportunity of applying an antidote or corrective. The judge indeed has the opportunity of checking such improprieties, but he generally confines his correction to the imputations which may be cast on a witness without evidence to support them. It should be added, however, that as juries have improved in taste and civilization, the practices alluded to have become less prevalent. The Grimaldis of the law have become less in request, and are not considered its ornaments.—Ed.
[* ]Under the spur of the provocation, I remember now and then to have observed the witness turn upon the advocate in the way of retaliation. On an occasion of this sort, I have also now and then observed the judge to interpose, for the purpose of applying a check to the petulance of the witness. For one occasion in which, under the spur of the injury, the injured witness has presented himself to my conception as overstepping the limits of a just defence,—ten, twenty, or twice twenty, have occurred, in which the witness has been suffering, without resistance and without remedy, as well as without just cause, under the torture inflicted on him by the oppression and insolence of an adverse advocate. Scarce ever, I think, had I the satisfaction of observing the judge interpose to afford his protection to the witness, either at the commencement of the persecution, for the purpose of staying or alleviating the injury, or at the conclusion, for the purpose of affording satisfaction for it—such inadequate satisfaction as the nature of the case admits of.