Page:The Green Bag (1889–1914), Volume 21.pdf/655

 Hints to Witnesses By Ira Jewell Williams, of the Philadelphia Bar "A child should always say what's true; And speak when he is spoken to; And behave mannerly at table, At least so far as he is able." STEVENSON'S "The WholeDutyofa Child" might be so paraphrased as to cover the whole duty of witnesses. For of course, above everything, a witness should tell what is true. He is sworn to tell the truth, the whole truth and nothing but the truth; and this under taking, whether regarded as a mere promise, binding upon his honor, or as a solemn obligation made more im pressive, under the old oath, by the phrase "and so you shall answer to God at the last great day," even though entered upon with the best of intentions, is discharged but ill unless the witness prepares himself, so far as possible, to properly play his part in the drama of justice. To "say what's true" seems such an easy thing, and yet, of course, there is implicated therein the conception of truth itself, as to which there has been conflict ever since the Roman Vice-regent first questioned, "What is truth?" In the first place, if there, is any legitimate way in which a witness's rec ollection can be refreshed as to what actually did happen, and how it hap pened, these accessories should be availed of. A witness should never go on the stand to testify to a matter which partly transpired in writing, whether such writing was a contract or correspondence, or whether there are in existence memoranda which were made at the time, without going over .carefully all these things, and, so far

as he may, placing himself again in the midst of the scenes which he is about to describe. It is a trite saying that human memory fails, but that writing never forgets. Forgeries are so rare that it may be safely said that where recol lection differs from the document, human memory is almost sure tJif be at fault. No witness, therefore, discharges the solemn duty which rests upon him with out making sure that the thing as he recalls it is not contradicted or dis placed by some writing which must be correct. There is another thing which an intelligent witness should be able to do, and that is to see to it that his tes timony does not conflict with the con ceded or assumed facts in the case. Both sides may be at one as to a large part of a certain set of facts, and yet a witness is called on one side or the other, part of whose testimony runs counter to that which both sides are willing to concede. It may be that one side has conceded too much, and under those circumstances, of course, the witness should not be criticised; but self-interest is such a powerful factor that it is not lightly to be assumed that the other side has conceded too much, and the chances are that the witness has "spoken in haste." If he had known before he went on the stand what the conceded facts in the case were, his confidence in his recollection to the contrary might well have been dispelled.