P Ramanatha Aiyar :Cross examination - Principles and Precedents

This book deals with “Cross-examination” which itself is an art. One should know the relevant statutory provisions concerning the cross-examination of witnesses, questions which cannot be asked, and questions about connected matters. So also one must have knowledge of the latest rulings rendered by the Apex Court and the various High Courts. Besides, the cross-examiner must deal with a particular witness depending upon his nature, viz., whether he is an honest witness, liar, expert witness, timid witness, loquacious witness, woman witness, so on and so forth. He has to frame his questions to elicit the required answers from him. There are different types of cross-examination depending upon the cross-examiner. In short, a cross-examiner must be an actor who knows how to play his part and disappear from the scene.

This book deals with all the aforesaid aspects, which will be revealed by going through the contents of the book. The Editors have consulted various books, Indian and Foreign, to collect the requisite material. The Editorial Board expresses their further deep debt of gratitude to all those authors in that behalf.

CROSS EXAMINATION
ARRANGEMENT OF SUBJECT
PART I
CROSS EXAMINATION IN GENERAL
CHAPTER I
INTRODUCTORY
Contents PAGE
Profession of Law, Its antiquity. 2
Its high standard 3
Best intellects of all ages take to law 5
The rule as to hearing the other side. Essence of Advocacy. Its necessity. 7
Intellect and nobility of the legal profession 7
Necessity for maintaining a high level of morality. 8
The lawyer in popular estimation. 8
A plea for the profession of law-Extreme case. 11
The Social Value of the Lawyer. Popular estimation misconcieved. 14
Firmness and Devotion to Duty 15
Power and privilege of advising judge and jury, is a special gift of the cho-sen few 15
Devotion to duty even against odds. 15
Illustrative cases. Rousseau’s defence of the negroes in the Joyce murder trial. 16
Rousseau’s conduct at the critical moment. 16
Cases that cause anxiety and trouble to the profession. 17
Curing Society of its evils 17
“Post of danger is post of honour.” 17
Heroic defence of Negro suspects. 18
Advocate placed in embarrassing circumstances by conduct of client. 18
Injured husband shielding wife’s honour 19
Tells a lie and owns it 19
Genius of eloquence bursting the bonds of pedantry 20
How dean’s fame as an advocate and orator began. 21
The Philadelphia Lawyer-Hamiltons defence of the Liberty of the Press. 22
Advocacy as an Art. discovery of truth. 24
“Oh, Susanna”—History’s Outstanding Cross examination. 24
Advocate’s duty in adapting his methods to the class of witness under ex-amination. 25
A study of the person on the witness stand 25
A study in the methods of the masters. 26
The Eider Graham 26
Benjamin 27
Lincoln 27
Sir Edward Carson 27
Robert Alfred Mc-Call 28
Duke, K.C. 29
Sir Rufus Isaac 29
Charles Gill 30
Horace Avory 30
Montague Lush 30
Benjamin Francis Williams 31
Sir Edward Clarke 31
O’ Connell-Irish Lawyer 31
CHAPTER 2
STATUTORY PROVISIONS
Order of production and examination of witnesses. 32
Judge to decide as to admissibility of evidence. 32
Examination-in-chief. 33
Cross-examination. 33
Re-examination. 33
Order of examination. 33
Direction of re-examination. 34
Cross-examination of person called to produce a document. 34
Witnesses to character. 34
Leading questions. 34
When they may be asked. 34
When they must not be asked. 34
Evidence as to matters in writing. 34
Cross-examination as to previous statements in writing. 34
Questions lawful in cross-examination. 35
When witness to be compelled to answer. 35
Court to decide when question shall be asked and when witness compelled to answer. 35
Question not to be asked without reasonable grounds. 35
Procedure of Court in case of question being asked without reasonable grounds. 36
Indecent and scandalous questions. 36
Questions intended to insult or annoy 36
Exclusion of evidence to contradict answers to questions testing veracity. 36
Questions by party to his own witness. 37
Impeaching credit of witness. 37
Questions tending to corroborate evidence of relevant fact, admissible. 38
Former statements of witness may be proved to corroborate later testimony as to same fact. 38
What matters may be proved in connection with proved statement relevant under Section 32 or 33. 38
Refreshing memory. 38
When witness may use copy of document to refresh memory. 39
Testimony to facts stated in document mentioned in Section 159. 39
Right of adverse party as to writing used to refresh memory. 39
Production of documents. 39
Translation of documents. 39
Giving, as evidence, of document called for and produced on notice. 39
Using, as evidence of document production of which was refused on notice. 40
Judge’s power to put questions or order production. 40
Power of jury or assessors to put questions. 40
CHAPTER 3
EXAMINATION OF WITNESSES (IN GENERAL)
The lawyer’s vocation. 41
The effect of the advent of the lawyer 42
Purpose of judicial enquiry. 44
is ascertainment of facts 44
by proof thereof 44
through the medium of evidence, competent and satisfactory, 44
which evidence may be documentary or oral. 44
Legal and Philosophical basis for the reception of oral evidence in the trials of cases. 44
Indications of falsehood and truth in human testimony 45
Certain fundamental principles in weighing human testimony 45
“Ground of credit” or basis of belief 46
Foundations of faith 46
Mr. Elliotts’ remark as to presenting facts before Judge and Jury 48
Some suggestions on the delivery of evidence 48
First witness shall be the best witness 48
Last witness shall be the most effective witness 48
Facts shall emerge from testimony in the strongest possible light. 49
Logical arrangement and natural order in delivery of evidence. 49
Causes of confusion 49
Breaks and delays hamper a good cause 49
Tact in dealing with one’s own witness 50
General statements have not the force of specific ones. 50
Examining about contents of document 50
“Cunning is not always wisdom” 50
Have too much rather than too little evidence 51
CHAPTER 4
ORDER OF EXAMINATION OF WITNESSES 53
CHAPTER 5
EXAMINATION-IN-CHIEF
Rationale of Examination-in-chief 60
Advantages of viva voce examination of witnesses. 61
Illustrative cases. 61
Importance of Examination-in-chief Mr. Birrell’s remaks 62
Cox’s remarks. 62
A secret of Scarlett’s success. 63
Alverston’s remarks 63
Paul Brown’s rules as to examination-in-chief. 64
Paul Brown’s rule No. (1) 65
Witness, pert and forward. 65
Witness with excessive zeal. 65
Oracular witness 66
Let the witness tell his own tale in his own way. 66
Scarlett’s manner of conducting examination in chief. 67
Paul Brown’s Rule No. 2 68
Counsel’s manner in examination in chief. 68
Illustrative cases. 70
Examination of witnesses 73
Paul Brown’s Rule (3) 73
Handling several classes of witnesses. 74
Over-zealous witness 74
Stupid witness. 75
Hostile witness 75
Paul Brown’s rules (4) & (5). 75
Treacherous witness. 76
Paul Brown’s rule No. (6). 77
No questions should be asked without a definite object in view. 77
Illustrative Cases. 77
The use of the brief. 78
Paul Brown’s rule No. 7. 78
Framing questions in examination in chief. 78
Leading question. 79
Inadmissible questions. 79
Assisting witness’s memory. 79
Suggestive evidence-a case cited by Mr. Wellman. 81
Paul Brown’s Rule No. 8. 82
Illustration. 83
Notice to produce. 83
A client that will not suffer from want of counsel. 83
Paul Brown’s Rule No. 9. 85
Detection of tuition by reference to the language of the witness. 86
Paul Brown’s Rule No. 10. 88
Paul Brown’s rule No. 11. 89
CHAPTER 6
PRIVILEGE OF CERTAIN WITNESSES 91
PART II
PRINCIPLES OF CROSS EXAMINATION

CHAPTER 7
PRINCIPLES OF CROSS EXAMINATION
Scriptural basis for cross-examination. 94
Intuitive nature of the powers of cross examination. 95
Rules for the conduct of cross examination. 97
Paul Brown’s rules. 97
Judge Parry’s rule. 98
Ballantine’s observations. 98
Donovan’s Principles. 98
Wellman’s Remarks. 99
Cox’s observations. 99
Curran’s method. 101
Observations on eliciting truth in trials. 102
These guides to the practitioner are presented by David Perris of the cleve-land, Ohio, Bar, based on his exhaustive and practical study of the subject throughout his forty years of practice. 102
Object of cross examination. 105
(i) Who can Cross-examine? 124
(ii) Range of Cross-examination 124
(iii) Omission to Cross-examine 126
(iv) Cross-examination of Witnesses of Co-accused or Co-defendants 127
(v) Cross-examination of Witness Called by Court 131
(vi) Tendering Witness for Cross-examination 131
(vii) Tendering A Witness who was Declared Hostile in the Commit-tal Court for Cross-examination 132
(viii) No Opportunity to Cross-examine-Effect 133
(ix) Time for cross Examination-Power of Court to Limit 133
(x) Delayed Cross-examination 134
(xi) Ordering out of Court 134
CHAPTER 8
STATEMENTS PROVABLE ONLY TO CORROBORATE OR CON-TRADICT EVIDENCE TENDERED AT THE TRIAL
(i) Scheme of the provisions relating to corroboration or contradiction 142
(ii) Corroborating under S. 157 of the Act 144
(a) S. 157 of the Act controlled by S. 162, Cr.P.C. 144
(b) Statement provable under S. 157 of the Act, being an excep-tion to the hearsay rule to be construed strictly 145
(c) Reason of the rule contained in S. 157 of the Act 146
(d) Whether foundation to be laid in the evidence of the witness to be corroborated before evidence in corroboration can be received 146
(e) Previous Statement should have been made by the same Wit-ness 147
(f) Nature of the statement receivable in corroboration 148
(g) Former statement must relate to the same fact as the fact under inquiry 150
(h) The statement must have been made at or about the time when the fact took place 150
(i) Legally Competent to Investigate 158
(j) Importance of the statement in sexual offences 160
CHAPTER 9
STATEMENTS ADMISSIBLE EITHER TO
CORROBORATE OR CONTRADICT
(a) First Information Report 162
(b) Statement under section 164, Cr.P.C. 164
(c) Former Statement In Committal Court 165
(d) Pleadings-Depositions 167
(e) Inquest Report 168
(f) Post Mortem Certificate 169
(g) Post Mortem Report 169
(h) Statements in Documents and Depositions 169
(i) Testimony of Approver 170
(j) Tape Record 170
(k) Dying Declaration 171
(l) Party’s Admission 171
(m) Statement under Section 162, Cr.P.C. 171
(n) Statement Opposed to Public Policy 172
CHAPTER 10
SOME NON-STATUTORY MATERIALS FOR
CORROBORATING OR CONTRADICTING
(1) General Introduction 173
(2) Statements recorded by Sub-Divisional Magistrates during inqui-ries into alleged torture by the police 173
(3) Statements recorded during departmental inquiries 174
(4) Statements recorded during certain inquiries by police-officers, not being investigations under Ch. XII of 1973 Code or inquiries under s. 202, Cr.P.C. 174
(5) Mediator’s reports 175
(6) Pre-trial depositions not declared by law to be substantive evidence 181
(7) Statement recorded under s. 176, Cr.P.C. 182
(8) Statements recorded under s. 202, Cr.P.C. 182
(9) Statements in search lists under s. 165, Cr.P.C. which are not hit by S. 162, Cr.P.C. 183
(10) Statements Contradicting and corroborating under s. 158 of the Act and a deposition admitted under s. 33 of the Act 183
CHAPTER 11
CONTRADICTING UNDER S. 155(3) OF THE ACT
(a) Meaning of the term ‘contradict’ under the various provisions relating to contradiction under the Act 187
(b) S. 155
(3) also controlled by S. 162, Cr. P.C. 187
(c) Right to contradict confined to any part of the evidence of the witness liable to be contradicted 188
(d) Scope of the Statements covered by S. 155(3) of the Act 192
(e) Distinction between Ss. 145 and 155(3) of the Act 199
(f) Whether the rule as to confrontation of the witness in S. 145 of the Act (with reference to former statements in writing) applies to oral statements also covered by S. 155(3) of the Act, and if so, to what extent 200
(g) Effect of impeaching the credit of a witness by proof of former inconsistent statement under S. 155(3) of the Act 204
CHAPTER 12
CONTRADICTING UNDER S. 145 OF THE ACT
(a) Scope of the section 208
(b) Procedure under the section 214
(c) Reason of the rule as to confrontation 218
(d) Right to demand copies of former statements in writing as under S. 162, Cr. P.C. not available 219
(e) Procedure in confrontation in the absence of the document 227
(f) Consequence of failure to confront 228
(g) Only the maker of the statement can be contradicted 229
(h) Explanation of the contradiction admissible but not additional evi-dence 229
(i) Omission as contradiction 230
(j) Proof of the contradictory statement 230
(k) Effect of proved contradiction under S. 145 of the Act 231
S. 91, Cr.P.C. to implement S. 145 of the Act 232
(a) Scope of the section and its applicability 232
(b) Application of the section whether discretionary 234
(c) Right to inspect documents produced 237
(d) Documents held not privileged 240
CHAPTER 13
CROSS-EXAMINATION OF PERSON CALLED TO PRODUCE DOCUMENT (SEC. 139)
(a) Principle and Scope 242
(b) Witness Sworn by Mistake 242
(c) To be a Witness 243
CHAPTER 14
WITNESS TO CHARACTER (SEC. 140) 244
CHAPTER 15
LEADING QUESTIONS (SECS. 141 TO 143)
(i) Principle and Scope 245
(ii) Prohibition not Absolute 246
(iii) Criminal Cases 247
(iv) Secs. 142 & 154 of the Act 248
(v) Exception to the rule that leading questions should not be asked in examination-in-chief or in re-examination 249
Exception (1) : leading questions may be asked as to introductory or undisputed matters or as to matters sufficiently proved 249
Exception (2): leading questions as to the identity of persons or things may be allowed by the court. 250
Exception (3): leading questions may be allowed to be asked of a witness, to contradict another witness as to expressions used by the latter 250
Exception (4) : leading questions may be allowed to assist the memory of the witness 250
Exception (5) : the rule forbidding leading questions may in certain circumstances be relaxed where the witness is wanting in under-standing; e.g., where the witness is a child, invalid, or perhaps illiterate 250
Exception (6): leading questions may be put to a witness where the witness appears to be hostile to the party calling him, or interested for the other party, or unwilling to give evidence 250
(vi) Evidence Act, Section 143: leading questions may be asked in cross-examination 251
(vii) Exceptions to the rule that leading questions may be asked in cross-examination 251
(viii) Right to put leading questions where a witness has been recalled 252
CHAPTER 16
CROSS-EXAMINATION AS TO PREVIOUS
STATEMENTS IN WRITING
(i) Principle and Scope 253
(ii) Sec. 145, 146, 155 and 157 of the Act 255
(iii) Previous Statements 255
(iv) Made by Him 257
(v) In Writing or Reduced to Writing 257
(vi) Statement under Section 161, Cr.P.C. 257
(vii) Effect of Sec. 162, Cr. P.C 259
(viii) Statement can be used only to contradict 260
(ix) Relevant matters in question 263
(x) To contradict 263
(xi) Opportunity to Explain Contradiction 264
(xii) Police Diaries 266
(xiii) Statement under sec. 161, Cr.P.C., cannot be used in respect of a Witness not examined by the Prosecution but examined by the de-fence 267
(xiv) Oral Statements 268
(xv) Recalling a Witness 268
CHAPTER 17
QUESTIONS PERMISSIBLE UNDER SEC. 146 OF THE ACT
(i) General 269
(ii) To test his veracity 269
(iii) To discover who he is etc. 270
(iv) Shaking the credit by injuring the character 271
(v) Impeaching Credit of the Witness 272
CHAPTER 18
WHEN WITNESS TO BE COMPELLED TO ANSWER (SECS. 147 & 148)
(i) Principle and Scope 276
(ii) “Any such Question” 277
(iii) Proper Questions [Clause (1)] 278
(iv) Improper Questions [Clauses (2) and (3)] 278
(v) Adverse Inference [Clause (4)] 279
CHAPTER 19
QUESTIONS NOT TO BE ASKED WITHOUT REASONABLE GROUNDS
(i) Scope 280
(ii) Whether the cross-examiner is protected when putting defamatory questions 280
(iii) Remedies open to the witness 281
(iv) Scope of Sec. 150 281
(v) Right and responsibility of counsel 283
(vi) Indecent and Scandalous Questions 283
CHAPTER 20
INDECENT AND SCANDALOURS QUESTIONS 285
(SEC. 151)
CHAPTER 21
QUESTIONS INTENDED TO INSULT 287
OR ANNOY
CHAPTER 22
EXCLUSION OF EVIDENCE TO CONTRADICT ANSWERS RE-GARDING VERACITY
(i) Object, Principle, Scope 288
(ii) If he Answers Falsely, He may Afterwards be Charged with giving False Evidence 290
(iii) Witness Denying his Previous Conviction [Exception (1)] 290
(iv) Witness Denying Suggestions to impeach his Impartiality [Excep-tion (2)] 290
CHAPTER 23
HOSTILE WITNESS (SEC. 154)
(i) Principle and Scope 291
(ii) The Court may in its Discretion 292
(iii) Hostile Witness-Who is? 296
(iv) When a Witness can be treated as Hostile 297
(v) Procedure 300
(vi) Evidentiary Value 301
(vii) Statements under Sections 162 and 164, Cr.P.C. 304
(viii) Testimony of hostiles witness 304
CHAPTER 24
IMPEACHING CREDIT OF A WITNESS
(i) Principle and Scope 306
(ii) Witness believed to be Unworthy of Credit [Clause (1)] 307
(iii) Witness Accepted Bribe etc. [Clause (2)] 308
(iv) Witness’s Inconsistent Statements [Clause (3)] 309
(v) Liable to be Contradicted 310
(vi) Sec. 155 and 145 of the Act 310
(vii) Immoral Character of Victim of Rape [Clause (4)] 311
(viii)Reasons for Believing A Witness Unworthy of Credit [Explana-tion] 312
CHAPTER 25
QUESTIONS TENDING TO CORROBORATE RELEVANT 313
FACT (SEC. 156)
CHAPTER 26
REFRESHING MEMORY (SEC. 159)
(i) Principle And Scope 314
(ii) Sec. 159 To 160-Compared 315
(iii) May Refresh His Memory 316
(iv) Any Writing 316
(v) At the time of the transaction 316
(vi) Horoscope 317
(vii) Age Certificate 317
(viii) Account Books 317
(ix) Post Mortem Report 318
(x) Panchanamas 318
(x) Police Diaries 318
(xi) Special Diary 318
(xiii) Dying Declaration 319
(xiv) Inadmissible Documents 319
(xv) Copy of the Document 319
CHAPTER 27
TESTIMONY TO FACTS STATED IN DOCUMENTS MENTIONED
IN SEC. 159 (SEC. 160)
(i) Principle and Scope 320
(ii) Distinction between Sec. 159 and Sec. 160 322
(iii) Copy of the Document 322 CHAPTER 28 RIGHT OF ADVERSE PARTY AS TO WRITING USED UNDER SECS. 159 & 160 (SEC. 161)
(i) Principle and Scope 324
(ii) Right to Inspection and cross-examination by Opposite Party 324
CHAPTER 29
PRODUCTION OF DOCUMENTS (SEC. 162)
(i) Principle and Scope 328
(ii) Whether the court has Right to Inspect the Document when Privi-lege is Claimed on Ground of Public Interest 329
(iii) Admissibility 330
(iv) Writ of Certiorari and Privilege 331
(v) Instances of Privileged and not Privileged Documents 331
(vi) Notice to Produce Documents (Sec. 163) 331
(vii) Principle and Scope of Sec. 164 333
(viii) Secs. 164 and 89 of the Act 333
CHAPTER 30
POWERS OF THE JUDGE TO ELICIT
TRUTH (SEC. 165)
(i) Principle and Scope 335
(ii) Power of Judge to Call Witness 337
(iii) Ask any Question in any Form 339
(vi) About any fact Relevant or Irrelevant 340
(v) At any Time 341
(vi) Of any Witness 341
(vii) May order the Production of any document or thing 342
(viii) Parties not entitled to Cross-examine a Court Witness without leave of the court 342
(ix) Judgment must be based on Relevant and Proved facts [Proviso - I] 343
(x) Witness shall not be Compelled to answer any Question or to Produce any document in Certain Cases [Proviso -II] 344
PART III
BULLYING CROSS EXAMINATION
CHAPTER 31
DIFFERENT TYPES OF CROSS-EXAMINATION
The ordeal of Cross-examination. 345
Dreaded by Bushe and Beecher. 345
Bushe and Brougham. 346
Beecher and Fullerton. 346
Lawyers of old. 347
Roaring at Courts 347
Brave as lions and as fierce in action. 347
Pride of severity 347
Alienates jury’s sympathy 347
Danger of crowding victories too close. 348
A fault of cross examination. 350
Browbeating witnesses and vituperating opposite parties. 350
Is no novelty in the profession. 350
As old as the time of Coke 350
Bullying by the Bench. 352
Judicial brutality. 352
The ways of Jeffreys. 352
A change for the better. 353
Bullying and insulting witnesses not now commended. 353
Harsh methods cannot be completely dispensed with. 353
Illustrative cases. 353
Jone’s business 353
Russell’s cross-examination of Sampson. 353
Bovill and Ballantine-difference between them 354
Cases of counsel catching a tartar. 355
Pitfalls of bullying cross-examination. 355
A compliment by counsel. 355
Witness pleading for the lawyer. 355
Who does not know the truth when he sees it. 356
What the lawyer wants to know. 356
Testing the memory of an aged witness. 356
Another illustration. 357
Witness under oath. 358
A graphic illustration by the witness. 358
Tom Cooke-the musical expert. 358
Ingersoll in the Divorce case. 359
A house as old as the lawyer. 360
A judge consoling a frightened witness. 361
Further illustrations. 363
Practice of pleaders in Police Court. 363
Practice in the superior courts. 363
A study in the methods of the great masters in the art of cross-examination. 363
Charles Russell. 363
Frank Lockwood. 364
Bingham. 364
Serjeant Ballantine. 364
John Coleridge. 364
Henry Hawkins. 364
Cross-examination by looks and nods. 364
Sir William Robson. 365
Sir Edward Carson. 366
Eugene Aram’s case 375
CHAPTER 32
SEVERE CROSS-EXAMINATION
Robinson in the Railroad case. 376
Severe cross-examination. 376
Excitement of forensic contest. 378
Heat and altercation. 378
Illustrative cases. 379
The case of a broken rib. 379
Choate’s cross-examination of Russell Sage. 381
CHAPTER 33
DANGEROUS CROSS-EXAMINATION
Guarding against dangers in advocacy. 391
Danger of putting questions as to character of witness. 392
A perilous defence “The salvation of stupidity.” 393
CHAPTER 34
GENTLE CROSS-EXAMINATION
Politeness to a pilerer. 395
Value of politeness. 396
Value of courtesy to the young lawyer. 397
Smiles catch clients better than scowls 397
Courtesy is not subserviency 397
Illustrated from the Platonic dialogues. 398
Glaukon and Socrates 398
Socrates and Lysis 400
Cox’s observations. 402
Illustrative cases of politeness to witnesses 405
A leaf from the life of Sam Warren. 405
A polite compliment to an author. 405
Colonel Dean’s powers of persuasion. 405
Lockwood’s account of a consultation with Benjamin 406
Platt’s pleasantry. 406
Campbell as a cross-examiner. 408
Elliott’s remarks 411
Respect to the feelings of witness 411
The climax of the situation 412
O’Connell’s defence in an Irish agrarian murder trial. 412
Speech makers and verdict getters. 413
Brougham and Scarlett 413
The case of Cromwell’s kettle 413
Jim and his sixteen Negro women for witnesses 413
Danger of a second marriage 414
Clergyman’s evidence 415
Judge’s questions 415
Prisoner acquitted by jury’s sympathy-Cause of sympathy. 417
Sight of children. 417
Doctor’s examination as to the travelling capacity of small pox. 417
Juries rejecting law and yielding to prejudice. 418
Ballantine’s remarks on trials of criminal cases. 418
CHAPTER 35
SILENT CROSS-EXAMINATION
Illustrative cases 425
Illustrative cases. 429
A Marine Insurance case. 429
Instances cited by Mr. Hawkins. 429
Prisoner having most to fear his own counsel. 429
Friend of the prisoner. 429
“Save me from my friends” 429
Reckless questions may be useful in desperate cases. 430
CHAPTER 36
SUGGESTIVE CROSS-EXAMINATION
A suggestion of Scarlett 432
Healthy children brought up in the vicinity of an alleged nuisance. 432
Harris’ advice as to suggestive questions. 432
Saved by a nick-name. 433
The case of Cock Robin. 433
The case of a Doctor’s bill. 433
A doctor deserves no pay for causing the death of his patient. 433
What is a doctor’s diploma 434
An appeal to the doctor’s patients. 434
The last “straw that broke the camel’s back.” 434
A case cited by Hardwick 435
Scarlett 435
“A child in her hands.” 435
A fatal answer 435
The appeal to common sense. 436
The case of the brass buttons 437
How high he could hold his hands 438
A physician’s suggestion to a counsel 439
Futility of appeal to false philanthropy or sickly sentimentalism. 439
Every man has a right to his wife and children, but not to steal a neighbour’s property to support them. 439
Scarlett 439
Securing a victory without appearing to commence a conflict. 439
CHAPTER 37
OVER-CROSS EXAMINATION
One question too many. 440
Yielding to the solicitor and putting a fatal question. 441
Stenographer’s statement as to sanity of testator 442
Confirmed in cross-examination 442
Fixing a fatal date. 443
Evil of putting too many questions 443
A story of Russell and Coleridge 443
What trouble could come from eating strawberries. 444
Buchanan’s trial 444
A case of child murder. 445
Breach of promise of marriage case. 446
Wellman’s remarks. 453
CHAPTER 38
BOLD CROSS-EXAMINATION
The pluck of Jerry 456
Surprising by a sudden question. 457
The confidence of Counsel. 459
Magic of magnetism. 459
Boldness of Brougham. 460
CHAPTER 39
QUICK CROSS-EXAMINATION
A case from Hawkins 462
Mathews’ method of exposing a forgery. 462
Count Coningsmark’s Trial. 463
Lincoln and Sovine. 464
Secret of surprise. 465
Harris’ remarks 465
Cox’s advice. 465
Lord Baltimore’s trial. 466
Horton’s trial. 467
Tichbhome case. 467
Parnell Commission 468
Truth, the whole truth and a little more. 470
“Yes, sir,” she snapped at me. 470
Queen Caroline’s trial. 470
CHAPTER 40
RANDOM CROSS-EXAMINATION
Codd’s puzzle. 472
Overlooking discrepancies. 474
Cross-examination confirming evidence in chief. 474
O’Connells method of cross-examination. 475
CHAPTER 41
QUIBBLING CROSS-EXAMINATION
Some thoughts on quibbling and equivocation. 477
Genesis of quibbling. 478
The accused’s plea. 478
Successful employment of quibbling in slander cases. 479
Imputing perjury. 479
A case from Hero-dotus. 479
The quibble of Queen Dido. 479
Promise to shed no blood. 479
A treaty to last as long as the earth was firm. 479
Half of Antiochus’ ships. 479
A truce for seven days. 480
Roman officer’s promise of return. 480
An inscription on the Sicilian statue. 480
Wesley’s remarks. 481
Unfair questions in cross-examination. 482
CHAPTER 42
PROLONGED CROSS-EXAMINATION
Judge’s remarks on prolixity of counsel. 483
Repeating questions. 484
Harris’ remarks. 484
CHAPTER 43
DRAMATIC CROSS-EXAMINATION
Burr and Hamilton. 486
Dragging out the dreadful secret. 486
sAnother dramatic defence by Alexander Hamilton. 487
The Advocate should be good actor. 488
Clay’s defence in a murder case. 488
Clay playing his last and master card. 489
Clay’s rehearsal. 489
Russell’s cross-examination of Sampson. 489
Montague Williams’ defence in an assault case. 489
Rolfe’s presentation of accomplice’s evidence. 490
The best of advocates cannot be overconfident of success in trials of cases. 490
A claim under a will. 490
Claim proved fairly well. 490
A clergyman called. 490
The Clergyman’s confusion gives the clue to counsel. 491
A dramatic solution 492
Another instance from Hawkins. 493
Patrick Henry. 493
John Hook crying for his beef 493
A lawyer who is a wizard. 494
Cross-examining a doctor. 494
Cockburn’s cross-examination of the doctor in the Cook murder case. 495
Dramatic incidents from the annals of ancient Rome. 498
The Soldier’s scars in the country’s cause. 498
The vision of the vestal virgin in suppliant prayer. 498
CHAPTER 44
HUMOROUS CROSS-EXAMINATION
Judicial humorist. 501
Corbet. 501
Westbury. 502
Sam Dysart a born humorist. 503
A song in evidence. 503
How Codd cross-examined Trollope. 505
Theft of coins-Antiquarian relies. 505
Antiquity came too soon. 506
A case of slander. 506
Suit for damages. 506
What was the dog’s name. 507
PART IV
CROSS-EXAMINATION OF DIFFERENT
TYPES OF WITNESSES
CHAPTER 45
FALSE WITNESS
Falsehood is a subterfuge of guilt. 510
Motive for false-hood. 510
Self-exposure of the guilty mind. 510
Eugene Aram’s case. 527
Errand boys’ falsehood. 527
Catches at first. 527
But the guilty conscience prompts a further remark. 527
Exposing both the falsehoods. 527
Presumption of truth and motive for falsehood. 528
Considerations making for truthfulness. 528
Sources of error in human testimony. 528
Perception and inference. 528
Works of imagination. 529
Prevalence of perjury in Courts of Law. 529
Man of straw. 529
Wellman’s advice. 530
Dr. Rammey cross-examined by Mr. Wellman. 530
Falsehood defeated by counter falsehood. 532
Dun and the Lawyer. 533
Warren and Davison. 533
A lie to detect a lie. How Warren’s authorship was discovered. 534
Pathological lying. 534
Falsehood in toto and misrepresentation. 535
Harris’ advice. 535
Illustrative cases. 535
The Tichborne case 536
Surrounding circumstances best expose untruth. 536
An instance cited by Mr. REED. 536
An illustration cited by Mr. Wellman, of untruth exposed by surrounding circumstances. 537
The test of surrounding circumstances. 538
The oldest inhabitant as a witness in a case of boundary dispute. 539
Advocate’s way with liar. 540
Directions in dealing with lying witness. 540

Movements of mouth & lips to be watched. 540
Paul Brown’s rule. 541
Attend to eye and voice. 541
Wellman’s remarks. 541
Elliott’s remarks. 541
Moore’s observation. 543
The test of “whom did you first tell?” 543
The Eno will case. 544
Reed’s remarks and Cox’s observations. 547
Illustrative cases. 548
Queen Caroline’s trial. 548
Distinguishing shades of colour in a moonlight-less night. 549
Webster’s defence of the Kennisons in the Goodrich Robbery case. 549
Brown v. Bramble. 551
Eliciting contradictions with other testimony. 553
Illustrations. 553
CHAPTER 46
TRUTHFUL WITNESS
How to find out when a witness is speaking the truth and when not. 558
The winning power of truth in the witness box. 559
A fact and an incident win as against evidence of witnesses. 560
A suit for Sunday trousers. 560
“The whole street knows about it” 561
“Ways and customs of the whole street”. 561
What at raised the Suspicion. 561
Further illustrations. 563
Notice to produce. 563
A client that will not suffer from want of counsel. 563
Why did O’Rafferty strike Murphy. 566
CHAPTER 47
HOSTILE AND TREACHEROUS WITNESS
The taming of a hostile person-One of Bang’s electoral experiences. 567
Wellman’s remarks. 568
Bringing out the hostility of the witness. 568
Danger of falsehood built on a foundation of truth. 568
Justice not to be cheated by irrational rules 569
0Treacherous witness. 569
Cox’s observations. 569
Some models 572
CHAPTER 48
MISTAKEN WITNESS
Unreliability of human testimony. 574
A great historic example of mistaken observation. 574
An experiment by Prof. Claparede on accuracy of observation 575
Some experiments suggested by Dr. Hans Gross. 575
Murphy’s self-deception recorded by Boswell. 576
An excellent instance of a mistaken witness cited by Mr. Wellman. 576
A suggestible witness. 577
Prepossession of a witness. 579
Other examples of the effect of prepossession. 579
Turning inference into recollection. 580
Mistaking one’s own signature to a document 580
Elliott’s remarks on the sources of error in human testimony. 581
Cox’s observations. 582
Reed’s remarks. 582
The man on the witness stand. 583
The methods of Webster and Choate. 584
Counsel casting doubt on the confidence of the complainant. 584
Mistake caused by wrong assumptions. 584
Mistake caused by coincident circumstances. 585
Mistake caused by hasty observation and fear. 586
Mistake caused by association of ideas 587
Mistake caused by substituting inference for facts. 588
Fact, inference and opinion. 588
Mistake by a judge 591
Mistakes of memory. 592
Mistake caused by misunderstanding words used in a conversation. 593
Mistake caused by the peculiar mental attitude of the witness. 593

CHAPTER 49
BIASED WITNESS
Biased witness. 595
Bias in witnesses. 595
Prepossession causing error in observation. 596
Reed’s observations. 597
Wellman’s advice. 597
Elliott’s remarks. 597
Illustrative cases. 598
Certain precautions that may be observed in conducting the cross-exami-nation of biased witness. 599
Bias influencing reception and appreciation of evidence. 601
Bias caused by pecuniary interest. 601
Detection of partiality 603
Counsel or Attorney as witness 603
Excessive charge for services. 604
CHAPTER 50
EXAGGERATING WITNESS
Exaggeration in common talk 608
a tendency of the human mind. 608
Exaggeration on account of bias. 609
Illustrative cases. 609
Collision cases. 609
Probate cases. 609
Pecuniary interest. 610
How to deal with exaggerating witness. 610
Exaggeration of values by experts in land acquisition cases. 610
A case cited by Mr. Wellman. 613
1. Exaggeration 615
2. Misrepresentation 615
3. Weakness of superlatives 616
4. Illustrations 616
5. Enthusiasm of a witness 617
Leading the witness to an extravagant position 617
CHAPTER 51
TIMID WITNESS
Causes of timidity in witness. 618
Some observations on witnesses and their timidity on the witness-stand. 619
A study of the mind of the witness. 620
Sex and age. 620
Witness driven to wild assertions. 620
Method of dealing with timid witnesses. 621
Harris’ hints. 621
Ram’s observations. 621
Reed’s remarks. 622
Further observations on the same subject. 622
Elliott’s advice. 622

CHAPTER 52
EXCITED WITNESS
Surprise or excitement of witnesses 624
Illustrative cases 625
Psychology of an excited witness 626
Illustrative cases of errors of excited persons 626
CHAPTER 53
TUTORED WITNESS
The value of the oath of a tutored witness 629
Proof of tution destroys the testimony 629
Detection of tution by reference to the language of the witness 630
By reference to the method of narration 630
Chief Justice JERVIS detecting an erring attorney. 630
Tuition by leading questions 631
Value of tutored testimony 631
Judicial dicta 631
Patent cases 631
Talking with attorney is not taking tuition from him 632
CHAPTER 54
HYPNOTIZED WITNESS
Effect of hypnotism 635
Nature of hypnotism 637
Writing when under hypnotism 638
Importance of hypnotism in administration of justice 638
CHAPTER 55
CONSCIENTIOUS WITNESS
Effect of the oath on the witness’s conscience 640
“A man will say what he will not swear.” 640
The ways of the conscientious liar. 642
Cox’s remarks 642
Illustrative cases 642
Stating time by the clock 643
Conscience in civil and criminal cases 643
Tilton-Beecher case 644

CHAPTER 56
PIOUS WITNESS
(PRIESTS AND CLERGYMEN)
Mason and the man with the “message from God.” 645
Harris’ remarks. 645
Clergymen as witness. 646
Some instances from the reminiscences of Mr. Hawkins 646
Professions of piety. 647
A boy that was brought up on church catechism. 647
CHAPTER 57
CLEVER WITNESS
Winning by a metaphor 649
Other illustrative cases 649
A method of dealing with clever witnesses 653
Whistler and Ruskin 653
“Knowledge of life-time.” 653

CHAPTER 58
EXPERT AS WITNESS
Expert witness 656
Diseases 664
An incident of mio-cardiac infra 664
An inexperiened doctor 665
Value of medical witnesses 665
Technical language 666
Mistakes of doctors 666
Illustrations 668
Age of ink 669
Admissibility of the opinion of typewriting expert 669
Illustrations 669
CHAPTER 59 COURT WITNESSES 684
CHAPTER 60
IMPERTINENT WITNESS
Impertinence and flippancy, ear-marks of falsehood. 685
Trial of Deacon Brodie. 688
Insolence of power and position. 688
Insolence of office. 689
How to deal with impertinent witnesses. 690
Putting down impertinence of witness by a fine retort by counsel. 692
Morris and the doctor. 693
Carson’s deadly repartee. 693
The riddle of Hortensius 693
Scarlett and the old lady 694
Curran and the fish-woman. 694
Anthon’s retort. 695
CHAPTER 61
FLIPPANT WITNESS
Method of dealing with a flippant witness—Harris’ remarks’ 696
Value of evidence of a flippant witness-Judicial dicta and illustrative cases. 697
Wellman’s advice 698
Best’s observations 698
CHAPTER 62 DOGGED WITNESS 700
CHAPTER 63
THE AWAKWARD WITNESS 702
CHAPTER 64
CONVICT WITNESS 705
CHAPTER 65
HYPOCRITE WITNESS 707
CHAPTER 66
SHIFTY WITNESS
Curran and the crafty witness. 708
Elliott’s advice. 709
Judicial dicta as to value of evasive evidence. 710

CHAPTER 67
UNWILLING WITNESS
The Scotch boy on the witness-stand 712
Overcoming the unwilling witness. 713
Surprising the witness into the correct answer. 713
Illustrative cases. 713
CHAPTER 68
UNINTELLIGENT WITNESS
James Ram on stupid witnesses. 716
A method of eliciting facts from stupid witness 716
Cox’s observations. 717
Various kinds of stupidity 717
And how to deal with them Harris’ Hints 717
An illustrative case. 717
Illustrative cases. 719
Platt in the nuisance case 719
Butler’s experiences 720
Another instance cited by Mr. Butler. 721
Stupidity, Perversity and cleverness-all combined. 722
Stupid witness giving a fine answer by chance. 727
CHAPTER 69
CONFUSED WITNESS
Confused testimony. 731
Causes of confusion. 732
Moore’s observations. 732
Allowancs for women unaccustomed to the witness stand. 733
Causes of confusion in ordinary conversation 733
CHAPTER 70
IGNORANT OR ILLITERATE WITNESS 737
CHAPTER 71
STUPID WITNESSES 738
CHAPTER 72
FORGER WITNESS 739
CHAPTER 73
HUMOROUS WITNESS
Humour in court. 744
Vagabond’s wit and humour 747
A player’s parody of Shakespeare. 749
CHAPTER 74
DRUNKEN WITNESS
Impaired power of observation of drunken persons. 750
Value of testimony of men under intoxication. 750
Illustrative cases. 751
Sight, hearing and the sense of touch of intoxicated persons. 752
Identification by an intoxicated person. 753
Intoxication affecting criminal liability. 753
CHAPTER 75
INSANE WITNESS
Genius and insanity. 756
The evidence of the insane. 757
Admissibility. 757
Insane witnesses. 757
Illustrative case. 757
Bellevue Hospital case. 757
CHAPTER 76
BANKRUPT AS A WITNESS 760
CHAPTER 77
POLICE WITNESS
Rural Police in France 762
Illustrative cases. 762
Policeman’s respect for law. 762
Certain incidents during the days of the Irish riots. 765
CHAPTER 78
SPIES AND DETECTIVES AS WITNESSES
Spy as witness. 775
Illustrative Cases. 776
Hardy’s trial. 776
Trial of Colonel Despard. 776
Employment of spies by Government : Cicero’s observations. 777
Excise agents. 778
Private detectives. 779
Addition’s observations 779
Evelyn’s remarks the evidence of Titus Oates in Lord Stafford’s trial. 780
The private detective. 780
Judicial dicta as to value of the evidence of spies and detectives and illustra-tive cases. 782
CHAPTER 79
CHILD WITNESS
The child’s memory 785
Value of a child’s evidence. 785
Dr. Hans Gross’ observations. 785
Remarks by James Ram 786
The child’s oath 786
Perjury by children 787
Children’s susceptibility to the influence of others 788
A curious way of tutoring the child. 789
Discrepancies in children’s testimony—Judicial dicta 790
Testimony of boys compared with that of girls. 790
Testimony of young men and young women. 792
Circumstances affecting testimony of children. 792
Testimony of children in divorce proceedings of their parents 792
Failure to contradict testimony of children. 793

CHAPTER 80
AGED WITNESS
Testimony of middle aged persons. 794
Testimony of the aged witness 795
CHAPTER 81
WOMAN WITNESS
Women on the witness stand 798
Strahan’s observations 798
An illustrative case 799
as to force of woman’s love 799
as to the force of woman’s hatred 799
Other illustrative cases. 800
Women in courts 801
Among the ancients 804
Woman’s instinct 805
Intuition of women 805
Twichell murder trial 807
Illustrative cases 807
Sympathy of jury towards woman witness 808
Carrying a little joke too far. 810
Old women 810
Asking a woman to state her age 813
Moore’s observations and judicial dicta on the credibility of woman wit-ness. 815
CHAPTER 82
PROFESSIONAL OR PEDANTIC WITNESS
Elliott’s advice as to cross-examination of professional witness. 819
The mind of the professional witnesses. 819
Costermongers. 820
Sailors 820
Business men and money makers. 820
The cunning of the professional witness. 820
The case of Henry Lazarus. 821
The Inspector’s evidence. 821
Language of the professional witness. 825
CHAPTER 83
GUILTY WITNESS
Struggles of the guilty conscience. 826
Illustrative cases. 827
Lambeth poisoning case. 827
A weird-experience. 830
Spectre sent to drag the criminal to his doom. 830
On the track of the criminal. 830
Curiosity becomes suspicion. 831
Thinking is acting. 831
A mysterious letter. 831
Crime brought to light through a presentiment. 832
The haunting idea of the old well. 832
Other Illustrative cases 832
Poison case-Prisoner and witness changing places. 833
Parnell Commission. 833
Convict witness. 839
Accomplice evidence 841

CHAPTER 84
ILLUSTRATIVE CASES
1. The Postman’s Case 845
2. The Policeman’s Case 848
3. The Bookbinder’s Case 851
4. An Important Question in a Murder Case 854
5. A Horse Stealing Case 855
PART V
RE-EXAMINATION OF WITNESS
CHAPTER 85
RE-EXAMINATION OF WITNESS
Necessity for re-examination 859
Re-examination of witnesses. 859
Harris’ advice. 860
Object of re-examination 861
Some practical suggestions by Judge Elliott. 861
Caution in asking for explanations 861
Cox’s remarks. 862
Elliott’s advice. 863
Avoid affording opportunity for a second cross-examination. 864
Avoid unnecessary objections in re-examination. 864

CHAPTER 86
SCOPE OF RE-EXAMINATION 869
CHAPTER 87
FROM THE GOLDEN RULES OF ADVOCACY
BY KEITH EVANS
Salvage, Clarification and Massacre 870
Salvage 870
Clarification 870
Massacre 870
If you don’t do it well, it’s better not to do it at all 870

CHAPTER 88
RE-CALLING WITNESS 872
Subject Index 873