The Rights of an American Citizen: With a Commentary on State Rights, and on the Constitution and Policy of the United States by Benjamin Lynde Oliver published 1832
PART II; OF SOME PARTICULAR RIGHTS
CHAPTER VI: Of the Rights of Witnesses
As society is organized for the protection of the persons, and the security of the property and rights of its members, each individual may be considered as undertaking on his part, to conform to all the regulations, which the government may think it expedient to introduce, for the more readily obtaining of those important objects.
Among these regulations may usually be found one, which gives every individual a right to call on others to give testimony, in any cause which may arise before the tribunals of justice, in which his rights are concerned.
This right of calling on witnesses, is one of the greatest importance; because, without it, no man would be able to obtain redress by law, for any injuries which might be offered to him, for want of evidence; unless he was so fortunate as to find volunteers, who would step forward of their own good will to give testimony in his favor. The law therefore provides a process, by which a party in any cause may compel the attendance of witnesses, so far as may be thought necessary to secure their testimony. But, as it would be unreasonable to compel a witness to neglect his own affairs, and to be at the expense and trouble of going from his place of residence, and living at board during his attendance on the court, provision is made by the law for the indemnity of the witness in all these respects.
A witness therefore is under no obligation to attend court at all, unless he is summoned by a regular subpoena, stating the cause in which his testimony is wanted, and served by a regular officer, and also has sufficient money tendered him to defray his charges, or, at any rate, such allowance as is provided by the statute law, whether such allowance is more or less. If such a sum is tendered him, he will be obliged to attend so many days as it is a legal allowance for, unless he is sooner dismissed. But, it seems, he is under no obligation to make advances ; and therefore, after the money which has been paid him is expended, or rather, after the time has elapsed, for which the money so paid is a legal allowance, he is under no obligation to remain in attendance upon the court, unless a further advance is made to him.
Though a witness, when summoned, is obliged to attend court if his expenses are tendered, yet the notice ought not to be so short that, in order to comply with it, he must break off suddenly from his business; the notice should be a reasonable one, so that he may not be put to any inconvenience from the mere circumstance of its being unexpected.
So, a witness is entitled to a reasonable time to convey himself from the place where he is summoned, to the court which he is to attend. As there is no allowance made him by law, for coach hire, turnpikes, Sic. it would seem that he is under no obligation to pay such charges; indeed, he may be unable to do it. Unless therefore some suitable conveyance is provided for him, he can be under no obligation to go any otherwise than on foot, and on the common county road. And as the law estimates a day’s travel on foot, at a certain number of miles, (say twenty) if the witness, as soon as he is summoned and receives his advance, sets out and travels at the rate of twenty miles per day towards the place where the court is sitting, it will be difficult to make out against him a case of contempt for not attending at an earlier day, though perhaps he might have arrived in half the time by taking the stage coach. The default is in the party who summons him; for, either he should have given an earlier notice, or furnished the witness a. suitable conveyance, or advanced him an additional sum for that express purpose.
A witness is usually allowed for a day’s attendance, though he may not actually attend in court five minutes; and if he is obliged to attend court on two or three different days, he is entitled to one full day’s attendance on each.
A person must be summoned, in order to be subject to examination as a witness. And therefore, if an individual should happen to be in court, without having been summoned, and one of the counsel in a cause should call upon him to be sworn and give his testimony, he may refuse to be sworn, without being guilty of any contempt, and has a right to depart without molestation. ,
Where a married woman is summoned, the fees must be tendered to her, and not to her husband.
A witness summoned to attend court, is entitled to the protection of the court, against all arrests, while going to court, or attending upon it, and in returning, if he uses common diligence and expedition, without being obliged either to take the shortest road, or to make use of more than ordinary dispatch.
This protection will be granted, either by a writ of protection, which the witness may have by asking for it, and which it will be a contempt of court for any officer to disobey, by arresting the witness after it is shown to him; or, if the witness has never applied for the writ, and is arrested, the court, on motion, will discharge him. This protection, however, is afforded against arrests on actions brought for causes of a civil nature only, but will not protect the witness from arrests, on warrants for breaches of the peace, &c.
A witness, when called upon to testify, is supposed to be entirely disinterested, because the smallest pecuniary interest in the event of the cause, will be a sufficient cause of exception to disqualify him as a witness. To ascertain whether a witness is interested or not, he may be asked that question, or the testimony of others may be brought to prove it. But, if the question is made to the witness, and he denies it, it is not permitted afterwards to introduce the testimony of others to contradict him.
As no person will be permitted to give testimony, by which he will discharge himself from any species of legal accountability by throwing that burthen on another; but, if he is wholly and absolutely discharged himself, from such accountability in any legal way, will immediately become a competent witness, it has become a common practice to qualify an interested witness, by releasing him, if there is a cause of action against him, so that he becomes entirely indifferent to the result of the suit.
It frequently happens, also, where an action is brought against a wrong party by mistake, either of the law or the fact, that the person against whom the action ought to have been brought, if used as a witness, would clear the defendant by making himself chargeable. To the competency of such a witness, the plaintiff in such case can never make any valid objection, because he is called upon to swear against his own interest.
But, it may be asked, is a witness bound by law, to testify against his own interest in this way? May he not decline to answer any questions, the answers to which may be given against him either in a civil action, or on a criminal prosecution?
With regard to such questions, as if answered one way, tend to incriminate the witness, he is entirely at liberty to decline answering them. But, this is held to be the privilege of the witness alone. The counsel of the parties have no rights on this subject. The witness may refuse to answer the question or not, at discretion. As a matter of prudence, however, the witness ought to take care to object to answering the first question in relation to such objectionable subjects of inquiry; for, it has been held, if he answers to part, he may be compelled to answer to the whole, whatever the consequence may be. See 1 Moody and Mai. 47.
This doctrine however seems to be laid down too broadly; for, the only reason why a witness who has answered to part, shall be compelled to tell the whole, is, that a partial statement may do great injustice to one of the parties. But, the answer is, that, where part is told, and the rest is inaccessible, the part told is no evidence at all to the jury. Thus, the court will not suffer part of a deed, where the rest is torn off, to be shown to the jury as evidence of a contract; because it is impossible to tell what the effect of the whole would be. Suppose a witness, after he had been examined originally, should die in a fit before his cross examination, would not the court generally instruct the jury to pay no regard to his testimony, though possibly there might be some excepted cases? The doctrine of the case cited, it would seem, ought to be restricted to cases, where a witness, with a full knowledge of his rights, to refuse to answer all questions tending to incriminate himself, voluntarily testifies to part of a transaction, &c. Here he may be compelled to answer to the whole, without any violation of principle ; since, by answering the first question, he, of his own accord, relinquishes the protection which the law affords him. Ld. Ellenborough, in the case Jean Peltier, remarks : ‘I think it is the office of the judge to suggest to a witness, that he is not bound to answer anything which will incriminate himself; and if a judge were not to remind a witness of that circumstance, he would neglect his duty.’ It would therefore be a good rule to establish, that a witness does not relinquish the protection of the law in any case, by a partial answer, unless the court has given him notice in the manner suggested by Ld. Ellenborough.
It is held, that questions may be put to witnesses on a cross examination, tending to degrade them, for the purpose of trying their characters, unless the answers to such questions may expose them to punishment. 1 Moody and Mal. 10S. The inference is, that the witness will be bound to answer any such questions. In New York, however, it has been held, that a witness is not only not bound to answer any questions, the answers to which may expose him either to a civil or criminal prosecution; but, it seems, he is under no obligation to answer any questions, the answers to which may have a tendency to degrade or disgrace him. See 1 Johns. R. 498. Whether such questions ought to be permitted to be put, does not seem clearly settled. For, it is not the same thing to allow the question to be put, and leave the witness to answer, or not, at discretion, and to refuse to permit such questions to be put at all. The decisions on this subject cannot easily be reconciled with each other. In one case, the court would not suffer the question to be put to a witness on a cross examination, whether he had not been put in the house of correction. 4 Esp. R. 225. On the trial of James Watson for high treason before the king’s bench, the general doctrine in relation to this subject, was held to be: 1. That if any question is put to a witness to shake his credibility, he may refuse to answer it. If he answers, you must take the answer, and will not be allowed to impeach it. A witness who has received a pardon for a crime, or who has been prosecuted, and the prosecution is put an end to, is not bound to answer any questions in relation to the subject. No evidence will be received to show that a witness has committed infamous crimes, for the purpose of impeaching his character and testimony, short of the record of conviction; because the court will not try collateral issues, which might be endless. If a question is asked a witness, whether he has not committed a particular crime, and he refuses to answer; though this may have its effect on the jury, yet it is not sufficient to discredit him in law, or render him incompetent. It seems to be the settled practice in England to permit such question to be put, and leave the witness to answer or not, as he pleases.
In Phillips’ treatise on evidence, however, a case is mentioned where, a witness being asked on a cross examination, whether he had not been tried for theft, refused to answer, and appealed to Ld. Ellenborough, whether he was bound to answer. Ld. Ellenborough said, :If you do not answer I will commit you,’ adding, ‘you shall not be compelled to say, whether you were guilty or not.’ 1 Phil, on Evi. 269, in notis. In New York, it seems, no public officer is bound to answer any questions in relation to his official conduct, the answer to which may tend to impeach his integrity. See 1 Johns. 498.
Whether a question tends to incriminate a witness or not, it is held, not to belong to the court to decide, but to the witness himself. Because, the court cannot know beforehand the facts and circumstances, which may be necessary in order to decide whether it may or may not, have such a tendency. For, though a question apparently may not have that tendency at first, yet, it may be the first link of a chain which has. See 2 Nott. and Mc. Cord. 15. In Burr’s trial, it was held, that a witness may be required to answer on oath, whether he thinks answering a question will tend to incriminate himself, before he will be allowed to decline to answer it. With regard to questions, the answers to which may expose the witness to a civil action, or may be given in evidence against him, in any action, which may afterwards be brought either by or against him, the law does not seem finally settled. Under this general class, a variety of cases are comprehended, which, in their decision, would seem to involve very different considerations. For, Erst—the answer to the question may be obviously and indispensably necessary to the plaintiff in the action, for the maintenance of his suit, or, it may be thus necessary to the defendant’s defence, in a civil action, or the prisoner’s defence, on a criminal prosecution; if it is not answered, therefore, there must be a failure of justice. Second—the answer, though it may be directly injurious to the interest of the witness, may be wanted by one of the parties, for the mere purpose of strengthening an argument of the probability or improbability of a certain fact, which is material to his cause. Here there is a greater or less probability, according to the circumstances of each particular case, that there may be a failure of justice in consequence of not obtaining an answer from the witness. The rule, in these cases, it is obvious, must be grounded on the same principle. It may be remarked here, that, in these cases, if the witness is compelled to testify, no injustice can be done to him by it in fact, because he is bound to answer nothing but the truth. He does not therefore create a cause of action against himself, but merely furnishes evidence against himself, by which an action may be maintained against him. But, however, it has been held, that though one who conveys land, may be a witness to prove that he had no title, he is not compellable to give such evidence. 2 Ld. Raym. 1008. By the law of Scotland, it seems, a witness is not held to answer against his interest; and in such case, it is held to be the duty of the presiding judge, to inform him of his right. Tait on Evi. 429. In Pennsylvania it has been held, that a witness is bound to answer any questions the answers to which do not render him liable to a criminal charge, or tend to degrade him. In the case of Baird v. Cochran, Tilghman, Ch. Jus., ruled the law to be so, and observed, that’ every man may be compelled on a bill filed against him in equity, to declare the truth, though it may affect his interest; why then should he not be compelled at law, except where he is a party to the suit’? This is a most unfortunate analogy, ox rather there is a great want of it in the two cases. A man who has a bill filed against him in equity, is compelled to disclose; to maintain the analogy, a defendant in an action at law, ought to be compelled to disclose. This, however, is not contended for; but it is contended, that a witness ought to disclose his interest, in an action at law between third persons: there would be some ground for analogy, if a third person were compelled to disclose his interest in a suit in equity between third persons. But the true ground of the argument is, that as a person may be compelled to disclose in equity, by bringing a bill in equity against him, there is no hardship in compelling him to disclose the same interest, in an action at law between third persons. But there is a striking difference between being compelled to answer questions on a cross examination, as a witness on the stand, and giving answers to interrogatories, with the direction and assistance of legal counsel at the elbow.—See 4 Serg. & R’ 397.
In Connecticut, it is settled, that a witness shall be protected from answering questions, which subject him to a civil suit or debt. See More v. Hathaway. 3 Con. R.
Third—the question may be wholly immaterial to the issue, so that, whether it be answered affirmatively, or negatively, or not at all, it will have no effect whatever on the result of the action or prosecution. In this case, it is obvious, there will be no failure of justice in the cause then in hearing, if the witness should decline answering. It may be remarked, also that, if the witness should see fit to answer, he cannot be convicted of perjury, though he should swear falsely; because perjury can only be committed by swearing falsely in relation to something which is material to the issue. For, though it is settled that perjury may be in a mere circumstance, yet it must be one that is material to the issue, though it is not necessary that it should be decisive. So held by Ld. Holt. See 10 Mod. 195. Carth. 422. 2 Ld. Raym. 889.
It has been held, that a subscribing witness to a note, may be compelled to testify to that fact, though he may be bail for the defendant; but, if he is not a subscribing witness, he would be at liberty to testify or not. See 1 Strang. 406. This is on the principle, that a subscribing witness undertakes to testify when called on, and cannot by his own act destroy the party’s right to his testimony. As to the question, what papers or documents a witness, who has been summoned by a subpoena duces tecum, [A subpoena duces tecum is used to compel the production of documents that might be admissible before the court. It cannot be used to require oral testimony] is bound to produce, no general principle appears to be settled, which will apply to every case that may arise. It seems, however, that a witness is not bound to expose his own title deeds. Such is the settled law in England, because, by exposing his deeds, he may disclose a flaw in his title. The same reason does not seem to apply in places where title deeds are recorded; but, as a copy of a title deed may at any time be had by applying to the registrar, there seems to be no reason, why a person should be compelled to produce his title deed, unless there is some other object, than to obtain a knowledge of its contents. So, it is held that a witness ought not to be compelled to produce his private books, relating to his private transactions. See 1 Str. 646.
So, a trustee, to whom it is suggested the plaintiff has conveyed his estate in trust, may demur to the production of the title deeds. 2 Stark. R. 203.
So, a solicitor to a third person will not be compelled to produce the deeds of such third person, where it may be prejudicial to his interest. 1 Starkie, 95. For, generally, an attorney is not at liberty to disclose communications made to him by his client, whether the client is or is not a party to the cause before the court. See 2 Camp. 578. In these cases, it may be remarked, that this is the client’s privilege; and, it will seem that, where any such confidence is recognized by the law, the witness will not be called on to testify, nor even permitted to do so. And therefore the client’s interpreter cannot be examined as to communications, made through him to his counsel. And, from a regard to a similar principle, a woman after her husband’s death shall not be examined as to conversations, had between herself and her husband during his life time. And for the same reason, a woman, after a divorce, cannot be called on to give evidence of conversations previously had between herself and her husband. See 1 Ryan and Moody, 198.
It has been held, that, under a subpoena duces tecum, a witness is under no obligation to produce private papers in his custody. 1 Esp. N. P. Cases, 405. In the case referred to, Ld. Kenyon denied the general position, that, in such case, a witness might be required to produce every paper in his possession, which did not tend to incriminate him, because it would ruin millions. See 1 Esp. N. P. Cas. 405. However, it seems impracticable, to lay down any general rule or principle as to the production of papers and documents. In Amty v. Long, Ld. Ellenborough observes, that ‘though it will always be prudent and proper, for a witness served with such a subpoena, to be prepared to produce the specified papers and instruments at the trial, if it be at all likely, that the judge will deem such production fit to be there insisted upon; yet, it is in every instance a question for the consideration of the judge at nisi prius (fn1), whether, upon the principles of reason and equity, such production should be required by him; and, of the court afterwards, whether having been there withheld, the party should be punished by attachment.’ 9 East. 485. The question as to the obligation of the witness to produce papers, is therefore to be decided by the court, according to the circumstances of each particular case. But, this is to leave the subject wholly unsettled, because the opinion or discretion of different judges, as to the same facts or circumstances,. is found to be different, and indeed the same judge is sometimes found to entertain different opinions at different times. Thus, when the question was made on the trial of Ld. Melville, whether a witness was bound to answer a question, the answer to which would subject him to a civil action, four judges held that he was not, and eight judges held that he was. As this is a case, where a similar principle is involved, if it had come up at nisi prius, the witness might or might not have been held to answer; according as one of the four, or one of the eight judges happened to preside. If the law is so unsettled, therefore, on this subject, and a case should occur, where the witness should be called upon to violate the sacredness of private confidential correspondence, or, to render himself liable to a civil action, it might be well for him not to be too hasty, either in the answering of questions, or in the production of papers. It has been said, and there seems to be no improbability in it, that Ld. Keith, in his answer to a question proposed to him, as a witness in an insurance case, subjected himself to damages to the amount of ten thousand pounds sterling. If a case of any considerable importance, therefore, should arise, the witness must by no means rely upon the court to protect his rights, unless he claims them. For, if he neglects to assert his rights, the court will take for granted that he waives the objection, and consents to produce the letters, and to answer the objectionable questions. Many things take place in this way, in the course of a trial, which would immediately be overruled by the court, if an exception were taken to them, regularly and in season. But, in most cases, the witness not being acquainted with the precise extent of his rights, does not know what he may legally insist on, and what he cannot. Sometimes, therefore, it happens, that no objection is made, and the irregularity passes off without notice, as if done by consent. In any such case, therefore, the witness should state his objection to the court, and if of great consequence, should request delay, in order to obtain the advice and assistance of counsel to argue it, and, if it should be overruled by the court, and it becomes necessary for the protection of his rights, and the court is one of inferior jurisdiction, he may appeal, and if his appeal should not be allowed, and he is confident that his objection is a legal one, he may take the hazard of disobeying. For, if he is committed in consequence, he may bring his habeas corpus, when, if his objection is legal, he will be discharged. If a witness should be called on to produce papers, put into his custody by a third person, who had a right to call for them when he pleased, it would be very proper to give immediate notice of the subpoena, to such third person, that he might adopt such measures as he saw fit. .If in consequence of it, the owner were to replevy [To regain possession of by a writ of replevin] them (though it has been held that at common law replevin does not lie for charters) there does not appear to be any way of coming at them. But the law does not seem to be settled.
It is apparent that the rights of witnesses in some respects, are not so much regarded, and consequently, not so well protected as they ought to be, from whatever cause it may arise. No reference is here had to the circumstance, that a witness is compelled to neglect his own affairs, for the purpose of traveling to and attending upon the court, to give testimony in a cause in which he has not the slightest concern; because this is for the benefit of one of the parties in the cause, and, is the consequence of a regulation, of which he will have the advantage himself, if he ever has a cause in court. But, it is intended to allude principally to the mode of examining witnesses, by way of cross examination, as it is sometimes seen practiced, and, for any thing that appears, may always legally be done, but seldom justifiably.
The legitimate objects of a Cross examination, are among others, 1. To enable the party against whom a witness is brought forward to testify, to elicit from him any circumstances which attended the transactions to which he may have testified; but which he may have omitted, or had no opportunity to mention on his direct examination. 2. By a series of close and judicious interrogatories, respecting the minute circumstances attending such transactions, to ascertain whether the witness is testifying to a story, which he has either fabricated himself or concerted with others. 3. To determine in the same way, supposing the witness to be honest, how far his observation, memory, and discrimination can be depended on. 4. On the supposition, that he is a dishonest witness, to exhibit him in that light to the jury; by compelling him to invent new falsehoods at every question, in order to keep his story consistent with itself, until he is involved unconsciously, in absurdity, impossibility, and self-contradiction. The advantages of a cross examination in all these respects, are obviously very great. In an examination in chief, it is a general rule, though there are some exceptions, that the questions should be very general, so as not to intimate to the witness what he is desired to say, nor to prompt him, nor to lead him, nor to put answers in his mouth. After the direct examination is finished, which terminates as soon as the witness has testified sufficient for the examiner’s purpose, because it is part of the professional tactics, observed on such occasions, not to push to the inquiry further, as well because it is unnecessary, as because something unfavorable may come out, the cross examiner considers it his duty to draw out what has thus been omitted, which frequently gives a different color to the case. On a cross examination, therefore, the advocate has a right to make use of questions of a much more direct and particular nature, than are usually allowed on an original examination. The advantage of this mode of examining a witness, in detecting a concerted story, sworn to by the witness on his direct examination, is very great; a few moments of well directed cross examination, being sufficient to expose the most ingeniously contrived fabrication. This is done by a close inquiry into minute circumstances, without which no real event ever happens, and which, if remembered, may readily be sworn to by an eye witness. But minute circumstances are seldom concerted in a false relation, and the witness, if interrogated in relation to them, is obliged to rely on his power of extemporaneous creation, to keep his testimony consistent. The consequence is, that the consciousness of adding falsehood to falsehood, accompanied with the fear of detection, exposure and punishment, soon throw him into a state of perceivable embarrassment, and perhaps inextricable confusion. A witness sometimes falls into a similar situation, from having answered a question on his direct examination, with too little precision, either from heedlessness or vanity, though without any unfair intention whatever. In a case of this kind, which occurred on the trial of Hardy, for high treason, a witness, who was a dancing master, being asked whether there had been a subcription for a certain individual imprisoned; answered, ‘ Yes; perhaps I gave a shilling or half a crown, or a guinea or five guineas towards his relief.’ Being afterwards cross examined down to, ‘but I might have given half a crown,’ and being further urged with perplexing questions on the subject, he said, ‘I would as soon give one as the other for a poor family in distress.’ Ch. Jus. Eyre then gave him the following reproof and caution. ‘You have brought yourself into a scrape, only for the sake of a flourish. When you are upon your oath, if you would only speak plain English, you would be under no difficulty. There is a great difference between a shilling, and a guinea, and five guineas, therefore you should not have conveyed an idea, that you did not know whether you gave one shilling, two shillings, one guinea or five guineas. I would advise you, when you are upon your oath, never to speak by metaphor,’ &c.
With regard to the mode of examining witnesses, it may be further remarked, that it is not considered proper, though it is a very common practice, to state direct propositions to a witness, with the tone of a person asking a question, and to require an answer to it, as if it were really a question. On this account, Mr. Justice Abbott checked the examining counsel in the trial of Isaac Ludlam for sedition; ‘You must not,’ says he) be angry with the witness, if what he says is not an answer, when you do not put a question.’ It is also a frequent practice in cross-examining a witness, to state interrogatively to him, propositions consisting of a variety of circumstances, some of which are true and some false. This is unfair and ensnaring; for, if he gives a general denial, intending that the whole is not correctly stated, it may be argued, that he has denied that part which is true. On the other hand, if he gives a general assent, intending it only for that part which he thinks material and which is strictly true, if the slightest inaccuracy can be detected in the whole proposition to which he has assented, it may be urged against him to impeach his credit. A witness for his own security, in any such case, would do well, to make no reply to propositions which are not questions, and, where the question is embarrassed with a variety of particulars, should request the examiner to simplify his question, or should ask, ‘what is the question,’ which will induce him to put it in a more simple form, and directly to the purpose. It is a common practice also with some, when examining a witness, to interlard their questions with comments and observations. This irregularity is also much censured by the court; particularly by Ch. Jus. Eyre, and Ld. Ellenborough. It is also considered unfair and a breach of decorum, While the counsel on one side are examining a witness, for the counsel of the opposite party to make use of grimaces or gesticulations, expressive of surprise, as holding up the hands, &c. In Watson’s trial for high treason, the court declared, that they would animadvert very severely upon such conduct. In the course of the same trial, Ld. Ellenborough checked Mr. Wetherell for improper treatment of a witness, and observed that he would not suffer injustice to be practised upon a witness by counsel. IMr. Jus. Abbott, also remarked on another occasion during the same trial, ‘ Every witness is entitled to the protection of the court from insulting questions and observations.’ 32 St. Tr. 291,298.
It sometimes happens, that the result of a trial depends upon a particular fact, which is sworn to by a single witness only. When this is the case, every legal measure possible is resorted to, for the purpose of impeaching his credit with the jury, so that they may set his testimony aside, and find their verdict for the party against whom he testifies.
For this purpose, persons may be called to testify, that the general reputation of the witness for veracity is bad. But they can only be asked general questions in relation to the subject, i. e. as to their opinion of his character for truth, and the grounds of that opinion; but, it would seem, that they ought not to be permitted to state particular facts against the witness. See 2 Starkie, 241.
The testimony of the witness may also be impeached by showing, that he has previously done or said something, inconsistent with what he now testifies. But, before introducing testimony of this kind, the witness must be asked, whether he has said or done that particular thing, so that he may have an opportunity to deny, or admit and explain it; and contradictory testimony ought not to be admitted until he has had this opportunity. See the opinion of Abbott, Ch. Jus., in the Queen’s Case; 2 Brod. and B. 312.
A witness cannot be cross-examined as to any collateral independent fact, irrelevant to the matter in issue, for the purpose of contradicting him, if he answers one way, by another witness, in order to discredit his whole testimony. In such cases only general questions can be put. If, however, the witness should answer, his answer cannot be contradicted by other witnesses. For, this would lead to the trial of collateral issues, and might be endless. See 7 East, 108. 2 Campb. 637.
Nor can a witness be cross-examined as to facts not in issue, if such facts are injurious to the characters of third persons, not connected in the cause. 1 Car. and P. 100.
The court will protect a witness from questions put through impertinent curiosity, and much more, if it seems probable, that any unfair use may be made of them. See the opinion of Tilghman, Ch. Jus., in the case of’ Baird v. Cochran. 4 Serg. and R. 397. See also, 1 Car. and P. 363.
Every witness is entitled to ordinary civility, at least, from the examining counsel; since, whether he is willing or not, he may be compelled to attend the trial by the process of the court, and if he refuses to answer proper questions, may be fined and imprisoned for the contempt. He is not at all, in legal contemplation, under the control of the examining counsel, except so far as the court sanctions and authorizes the questions put by him, and, in case of any illiberal treatment, has a right to claim the protection of the court, which is readily afforded when there is a suitable occasion for it and it is claimed decently and respectfully. If the ill treatment is gross, or the witness does not seem to be aware that he has a right to this protection, the court will interfere of their own motion, as where any opprobrious epithet is bestowed on a witness, whether merited or not. It would certainly be singular, if the judges should permit their court to exhibit a scene of indecent altercation between the examining counsel and a witness. In the trial of Mr. Hardy, both Mr. Erskine and Mr. Gibbs were checked by Ch. Jus. Eyre, for addressing the witness by the epithet of spy, though he was in fact a government spy, and an informer. 24 St. Tr. 751.
It is plain, therefore, that those professional gentlemen mistake the purpose of a cross-examination very much, who waste . the time and patience of the court, jury and witnesses, by asking a thousand frivolous and unmeaning questions, which have no bearing on the merits of the cause. When such questions are asked, the court cannot always stop them, because they cannot tell beforehand, whether something may not be made of them in the address to the jury. If therefore they are not absolutely illegal questions, and the witness makes no objection, the court commonly does not interfere. It frequently happens, in consequence, that the witness not knowing his own rights, and believing himself bound to answer every question whatever that is put to him, makes no objection to answer, and if he finds himself insulted by an offensive question, instead of asking the opinion or protection of the court, resorts to ill-tempered and petulant answers. But, when it is found that, after all this parade of questioning, no use can be made of the answers, let them be made which way they may, being wholly foreign to the case before the court, the judges and jury very naturally feel disgusted, because they perceive their attention has been kept in suspense without any other object than the gratification of the examiner’s vanity, in having all eyes directed towards him during the examination. These useless questions furnish the occasion for the sarcasm of Swift, which is in substance, that if an action at law is brought for a cow, the decision of the case does not depend upon the inquiry, whether the cow belongs to the plaintiff or to the defendant, but whether the cow is a black cow or a red cow, or has long or short horns.
It is to be much wished that the law, with regard to the examination of witnesses, were altered in the respects following, viz:
1. That witnesses should never be called for the purpose of impeaching the testimony of a witness, by giving testimony against his character for veracity. This is a most unjust practice, and though sanctioned by long usage, is contrary to legal analogy. For, in this way, the reputation of the witness is attacked in a suit between third persons, in which he has been compelled to testify, and, for aught that appears, may have told the exact truth. This is done without any previous notice to him; and, if he had received notice, he is entitled to no process to compel the attendance of his witnesses, not being a party to the suit. If his enemies are summoned as witnesses against him, they have an opportunity of aspersing or disparaging his character in this respect, with perfect impunity. The defence of his character, is left entirely with one of the parties in the suit, whose principal if not sole object, is merely to gain his own cause, and who may or may not feel interest enough to endeavor to establish it. His feelings and character may therefore be grossly injured without the possibility of redress.
2. That all questions, the answers to which tend to disparage a witness, should be overruled by the court; for, if the subject of the question is known, it may be proved by others; and if unknown, the witness is tempted to perjure himself, and thus preserve his character. But, if he acknowledges what is insinuated against him, then he establishes his veracity, instead of destroying it; because a person who will not be guilty of falsehood for his own sake, can hardly be supposed willing to practice it for the sake of another.
3. That personal questions, addressed to the witness relative to his private affairs, should not be put until the examiner has made it appear probable, that the ends of justice cannot be obtained without an answer to them.
4. That witnesses should never be examined under oath, but each witness should be affirmed under the pains and penalties of perjury. There could then be no objection to the competency of atheists; nor of children, however young; but the credit of the witness, in every case, would be left where it ought to be left, with the jury, and-crimes, which may now go unpunished on account of the inadmissibility of certain testimony, would then be subject to legal animadversion.
fn1. A court of nisi prius is a court that tries questions of fact before one judge and, in some cases, a jury. In the United States, the term ordinarily applies to the trial level court where the case is heard by a jury, as opposed to a higher court that entertains appeals where no jury is present.
Continued in CHAPTER VII: Of the mode of obtaining redress for any infringement of civil or political rights, committed either by the officers of the General Government, or of any of the State Governments.
See the other parts of this series:
RIGHTS OF AMERICAN CITIZENS: General Rights; Division One
RIGHTS OF AMERICAN CITIZENS: General Rights; Division Two
RIGHTS OF AMERICAN CITIZENS: General Rights; The Social Compact
RIGHTS OF AMERICAN CITIZENS: The Powers delegated to the General Government in the Federal Constitution
RIGHTS OF AMERICAN CITIZENS: Powers delegated to the State Governments
RIGHTS OF AMERICAN CITIZENS: The Independence of the States
RIGHTS OF AMERICAN CITIZENS: The rights reserved to the people of the United States
RIGHTS OF AMERICAN CITIZENS: Of the right of suffrage and of elections
RIGHTS OF AMERICAN CITIZENS: The Liberty of Speech and of the Press
RIGHTS OF AMERICAN CITIZENS: The Power of Courts to punish for Contempts
RIGHTS OF AMERICAN CITIZENS: The Law of Libel in relation to Public Officers
RIGHTS OF AMERICAN CITIZENS: The Rights of Juries
RIGHTS OF AMERICAN CITIZENS: The Rights of Witnesses
RIGHTS OF AMERICAN CITIZENS: The mode of obtaining redress for infringement of civil or political rights