Page:The Law and the Doctor Vol 2 - The Physician as Witness.djvu/17

Rh of several States. The rule more generally adopted in the United States is that the counsel, in the cross-examination of the witness, will be limited to an inquiry into the facts and circumstances relating to the matter regarding which the witness testified upon his direct examination.

Much latitude is, however, allowed by the trial judge in the cross-examination of witnesses, even in those States recognizing the rule that the cross-examination must be restricted to the matter brought out on the direct examination; thus it is permissible, where the witness has testified to only a portion of a material transaction or conversation, for the adverse party on cross-examination to bring out the details of the omitted portion, and so may the witness be examined regarding matters the existence or truth of which may tend to show the improbability or falseness of statements made in the direct testimony, But, it seems, the counsel for the defendant may not, in cross-examining his adversary's witness, enquire of matters which constitute an affirmative defense.

The latitude allowable, and the extent to which cross-examination may be prolonged, is very largely a matter of discretion with the trial judge, and, as a corollary, it is the duty of the judge to protect the witness from unnecessary insinuations and attack of counsel. Mr. Justice Gary, in rendering the opinion in a case where cross-examination of an insulting character had been conducted, said:—

"The court, without objection from counsel of the appellant, should have stopped such an examination. ... Witnesses should not be insulted