Page:The Green Bag (1889–1914), Volume 21.pdf/656

 Hints to Witnesses It is perhaps impossible to describe the golden mean between hesitation and overpromptness. The time which it takes to grasp a question and begin to reply depends, of course, partly upon the character of the question and in part upon the mental characteristics of the witness. Assuming, of course, that the witness intends to tell, and is telling, the whole truth as he knows it, an ethical obligation rests upon him to endeavor to tell the truth in such a way as to endeavor to promote confidence and belief. For, being sure that he is right, ex hypothesi the judgment will not be right unless he is believed, so that the conscientious witness is pardonably a zealot for his side to the extent that he wishes his own testimony to be accepted as true and correct. Now, extreme re luctance 'or over-hesitation is likely to be as fatal to belief as overreadiness in replying. The former, however, while it may lead to a possible question as to the entire frankness of the witness, is the safer side on which to err, as it per mits of an opportunity to fully under stand the question and its exact pur port, and to decide, first, whether the witness knows of his own knowledge the answer, or any part of it, and if so, just what the witness does know. Perhaps one of the most prolific sources of mis carriages of justice is stupidity or want of real conscientiousness of witnesses in judicial proceedings. Intentional per jury less rarely results in a legal wrong than stupidity or carelessness on the part of witnesses. Stupidity is incurable and no more to be ministered to than a mind dis eased. Possibly a very able and con scientious solicitor may, however, by going over and over awitness'stestimony and applying to it the searching light of his own experience, lead the witness, in perfectly good faith, of course, to

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eliminate that which is manifestly im possible or contradictory to the undis puted facts, and further, to some ex tent, by cross-examination in the office, to warn the witness against some of the more obvious pitfalls which may be laid for him by opposing counsel. Carelessness in a witness may be prayed over but cannot be guarded against. Even the dictates of manifest self-interest do not seem to be sufficient to guard against this vice. By careless ness, I mean a failure to grasp the exact scope and purport of the question. What is behind the question may or may not be apparent,—according to the intelligence of the witness. His interlocutor is, of course, shooting from masked batteries, but what the question means should be plain and clear to the witness before he attempts to answer it. It is astonishing how often a palpable trick, such as the use of loose language, or words having a double meaning, or a question calling for a conclusion not of fact but really of law, or ques tions calling for a conclusion which may be a conclusion of law or of fact, is permitted to succeed. One of the favorite devices in clever cross-examina tion is to ask for an explanation when no explanation is possible and then to evoke by the persistent "why" an imagined chain of mental processes which can be made to look absurd in the light of unquestioned facts. The "why" question is one which should never be answered offhand. I venture to say as a matter of psychology that it is very rarely that a witness can say, especially as to an unimportant part of the transaction, just why he did one thing rather than another, or did a thing in a particular way rather than in another, and yet the old device is used again and again and witnesses go on to their own detriment and downfall,