CROSS-EXAMINATION

Evening Star, Issue 21090, 30 April 1932, Page 3

CROSS-EXAMINATION

THE ORDEAL OF THE WITNESS BOX To many persons who have never occupied a witness box, cross-examination suggests a terrible ordeal, writes Mr Justice M‘Cleary. However honest a witness may be, his words, they fear, will be turned against him, he will be bullied and browbeaten until he is presented to the court either as a deliberately perjured individual or a hopeless fool. And his past will be raked over, and he will be lucky if he escapes with a shred of reputation. _ To the honest witness cross-examination need present no such dreary picture. The primary object of cross-examination is to elicit the truth. It is not to induce a witness to say that which is not true. Cross-examination is a formidable weapon when used against an untruthful witness; but he is not deserving of much sympathy. If he violates his oath to speak the truth he cannot complain that he is subjected to rough handling, or that his dishonest past is laid bare to the court. It is necessary for the cross-examiner in his search for the truth to break down his wall of deceit, and in doing so he is entitled to use all the weapons which his skill, ability, and experience have forged for him. A clever rogue in the hands of a skilful cross-examiner is an interesting, though perhaps not a very pleasant, sight. But it may be that the life, or liberty, or reputation of an innocent person depends upon tho unmasking of a rogue. But how is the cross-examiner to know when he has a rogue to deal with? That is his business. He has spent many years in learning it. He is, of course, guided by_ the instructions contained in his brief. He may bo furnished with information as to the witness’s past life, with facts which, if they can be brought to the notice of the court, are likely to show that the witness is not a person on whom to place much reliance. But he must be guided by his own cultivated instinct. He proceeds by steps, each one of seeming innocence, until he has got the measure of his opponent. It may be that he will arrive at the conclusion that he has been misinformed and that the witness is deposing to the truth. But should the answers to his questions justify his suspicions, his attack will be pursued with increasing violence until the witness is displayed to the court as the creature he is. THE ORDINARY WITNESS. Human nature in almost all its manifold forms is displayed in the witness box. Its infinite varieties must be understood by the successful cross-exam-iner. Fortunately for him it manifests itself in ways with which he is more or less familiar. To attempt to_ classify witnesses would be a task which even the most experienced cross-examiner

would hesitate to undertake, but there are certain leading characteristics of witnesses which may be indicated. The ideal witness as to facts is one who has accurately appreciated the. facts, whose memory is perfectly clear as to them, and who can, give his answers to questions concisely and in unequivocal language. The blocks against which most witnesses stumble are want of accuracy of observation and defective To these may be added difficulty in pressing themselves in clear, precise, and unambiguous language. Again, imagination too often plays a part in evidence which is given. Without any intention of being ungallant one must say that this is noticeably so with, women witnesses. No entirely satisfactory explanation of this phenomenon has yet been given. Possibly it is due to a difficulty in distinguishing between facts and inferences from facts. Facts cannot lie, but it is easy to draw erroneous inferences from facts. It may be that imagination plays a more important part in the life of a woman than it does in that of a man, and it is difficult for her to shut it out at a moment’s notice.

Another frame of mind which is frequently observed is that which is pro* duced by what may be called the par* tisan spirit. There is a strong tendency, for a witness to support the causa which he has espoused. He is -in ai fight between two sides. He wants his own side to win, and ho is pleased when he can help it to win. He will not consciously do anything _ which is unfair, nor will he say anything which he knows to be untrue, but his attn tude towards the case is prejudiced* and his prejudice may, to some extent* colour his evidence. Vanity may pro*! duce another frame of mind. The vain person does not like to be shown thatj he is wrong, and he is reluctant to ad« rait that he may have been mistaken* The support which he gives to his story* therefore, may be coloured by his de* sire to preserve his personal dignity and his reputation for accuracy. In addition to the frames of mind which are common to many witnesses there are also the different types ofl witnesses to be considered. Certain! types are easily distinguishable. Thera is the timid witness who requires very gentle handling; the cocksure witness who is liable to collapse like a pricked balloon; tho garrulous witness whose accuracy may disappear in a maze ofi words; the bad-tempered witness who* sooner or later, is bound to show tlia weak spots in his armour; tho stupid witness whose testimony may be shown to be worth just nothing at all; thaj clever witness who endeavours to_ think one question ahead and whose gift foi; “ cleverness ” may be demonstrated. THE EXPERT WITNESS. The expert witness, if he is an expert* is on an entirely different footing,His evidence is in the nature of an' opinion. In effect he says: “If the facts he so and so, then, applying my, expert knowledge to those facts, my, opinion is so and so.” He may further say: “I myself have investigated tho facts, and in my opinion the inferences to bo drawn from them are so and so.’t It is assumed that he is absolutely im. partial, and that his only desire is to assist the court in coming to a proper decision. His cross-examination is therefore directed to the possibility, that his opinion may not be the only, one, or that he may have drawn tho wrong inferences from the facts. With the material at his disposal* witlf the knowledge and skill which ho possesses, the cross-examiner must seek for the truth. The witness whose 1 endeavour is to give a truthful and impartial account need have no fears. Hoi may be cross-examined, but only for the purpose of testing his accuracy—not his good faith. Any other line of cross-examination would very soon ha interrupted by the judge, and any attempt to take undue advantage of him would meet with stern disapprobation