Page:The Green Bag (1889–1914), Volume 11.pdf/102

 Cross-Examination. sequent state of knowledge. People sel dom or never suspect their own powers of observation, rarely reflect upon the opportunities they 'have enjoyed of ascer taining the facts, and still less frequently realise that the state of their knowledge is a disqualification for witness-bearing. When a witness is called to testify, accepts the call, and attends for the purpose, he usually comes to tell what he thinks he knows, and he is not prepared to have his knowledge, any more than his veracity, called in question by either the examiner or the cross-examiner. Having once put forward a definite view of the facts, he becomes bound in his own opinion to defend that view, and is aggrieved by any opposition to it, or even question of its correctness. Thus the work of the ex aminer, and still more of the cross-examiner, is rendered difficult; but the ascertainment of exact truth, in spite of all the obstacles we have noticed, is the function of the law courts through the media of the opposing examiners. Though the judge has the right and power to put questions to the witnesses, he uses his right only to supply the defects in the work of the bar. There are instances in which questions come with more effect from the bench than from the bar, and where it is safer to leave the question to the judge than to either of the pleaders. Before we speak of cross-examination, a few words on the examination-in-chief will help clear the way. The lawyer who first examines does so from an ex parte stand point, and puts his questions in order to elicit the answers he expects and desires, and believes to be the true answers. Apart from the bias and tendency of the witness, the examiner has thus a bias and tendency of his own, or, at all events, on his side. His bias is necessary for the proper per formance of his duties, and, having the check of the opposing lawyer's contrary bias, and being subject to the regulative impartiality of the bench, is exempt from

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the reproach which attaches to bias in the witness. The leaning of the lawyer needs no defense if it is, as we have said it is, "necessary." The counsel for a litigant is the litigant, plus skill in the law. Neither may do anything which an honest and honorable man may not do. Both may do his best, by all honest means, to obtain the verdict of the jury, or the judgment of the court. The bias, prejudice or preconcep tion of the litigant, therefore, enters into every question put by his mouthpiece, and, unless the witness is clear-headed and coolheaded, the answer may easily convey a wrong impression without being false in the spirit or even wrong in the letter. The point of view is always and in all things what determines the aspect in which a scene is realized by the spectator, and that equally whether the scene be one in nature or human nature as manifested in human affairs. If to the bias of a partial witness he added the leaning of the lawyer who examines in chief, it is easy to see that the first answers may need toning down. The examiner-in-chief holds a precognition taken by his own side for the advancement of his own side, and perhaps, done with the witness there is need for probing. From the opposite point of view the examination-in-chief sometimes creates the impression of a nice little family party, where the witness and the questioner are being as agreeable as they can to each other, and the client looks on with benign satisfaction. Is it not cruel to disturb the unity in which as brethren they are disposed {quoad //or) to dwell? If they have been building upon false and therefore insecure foundations, perhaps it is not unkind to let them know it in good time. The crossexamination is the way to do it. The cross-examiner has listened to the examination-in-chief with watchful care to find where it creates wrong impressions. By wrong impressions he means impressions adverse to his case, or contrary to, or differ ing from, the impressions he seeks to con-

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