Questions contrary to state policy. Transactions cil. was not allowed to prove that a plan of the Tower, produced by the defendant, was accurate. (m) In the case of the Seven Bishops, the clerk of the privy council of privy coun was compelled to state what passed in the council chamber, and even what was said by the King himself, although the counsel for the crown objected to it. (n) And the same evidence was allowed in Lord Strafford's case. (o) But in Layer's case, (p) it seems to have been considered that the minutes taken before the privy council were not to be divulged; and the two other cases above cited were decided under the strong feelings which the circumstances of the times had produced, and the latter in particular has been considered as a very unwarrantable departure from law and justice.(q) Grand Jury. House of A clerk attending upon a grand jury, shall not be compelled to reveal that which was given them in evidence, (e) and the jurors themselves are bound by oath not to disclose what passes before them but it has been held that a grand juryman may be called to prove who was the prosecutor of an indictment; for it is a question of fact, the disclosure of which does not infringe on his oath.(ƒ) A witness was not allowed by Lord Ellenborough to be asked as to the expressions or arguments which a member of the House of Commons had made use of in the House; for, said his Lordship, it would be a breach of duty in the witness (who was a member himself), and a breach of his oath, to reveal the councils of the nation; (g) but as to the fact of the plaintiff's having taken part in the debate, he was bound to answer. (h) Examination in chief. SECTION III. How Witnesses ought to be examined, and what Questions they may be asked, and compelled to answer. Before a witness is examined, he must be sworn in open Court. The proper method of administering the oath, and the objections which may be made previous to the administration of it, have already been considered. (a) And the proper time and mode of objecting to the competency of a witness, whether on the voire dire, or at a later stage of the trial, have been discussed in the first section of this chapter. (b) After a witness has been regularly sworn, the party who has tions. called him proceeds to examine him in chief; respecting which examination the most important rule is, that leading questions Leading quesmust not be put to the witness; that is, questions which, being material to any of the points of the issue, plainly suggest to him the answer he is expected to make. But this objection is not allowed to be applied if the question is merely introductory, and one which if answered by Yes or No would not be conclusive on any of the points of the issue; for it is neceessary to a certain extent to lead the mind of the witness to the subject of the enquiry. (c) Thus in an action of assumpsit against two, in order to prove that the defendants were partners, the first witness was asked, whether one of them had interfered in the business of the other. And upon this question being objected to as leading, Lord Ellenborough ruled, that it might properly be asked. (d) An affirmative answer to this question would not have been conclusive, for the defendant might have interfered, without making himself a partner. So where the witness called to prove the partnership of the plaintiffs, could not recollect the names of the component members of the firm, so as to repeat them without suggestion, but said he might possibly recognize them, if suggested to him, Lord Ellenborough, (alluding to a case tried before Lord Mansfield, in which the witness had been allowed to read a written list of names,) ruled, that there was no objection to asking the witness whether certain specified persons were members of the firm. (e) Upon the trial of De Berenger and others, before Lord Ellenborough at Guildhall, for a conspiracy, it became necessary for a witness (a post boy, who had been employed to drive one of the actors in the fraud), to identify De Berenger with that person; and Lord Ellenborough held, that for this purpose, the counsel for the prosecution might point out De Berenger to the witness, and ask him whether he was the person.(f) So in Rex v. Watson and Others, (g) tried at bar, upon its becoming necessary to identify three of the prisoners, it was objected, that the attention of the witness was too directly pointed to them; but the Court held, that the counsel for the prosecution might ask in the most direct terms, whether any of the prisoners was the person meant and described by the witness. So where the plaintiff's son, being called as a witness for his father, was cross-examined as to the contents of a letter received by him from the plaintiff, which he swore had been lost, and mentioned some particular expressions as part of its contents; and witnesses were called on the part of the defendant to speak to the contents of the same letter; Lord Ellenborough ruled that the defendant's counsel might ask one of them, who had first exhausted his memory by stating all he recollected of the letter, whether it contained the particular expressions sworn to by the plaintiff's son; for otherwise, said his Lordship, it would be impossible ever to come to a direct contradiction. (h) When, upon cross-examination, a witness has denied having (c) Nicholls v. Dowding and Kemp, 1 Stark. N. P. C. c. 81. (d) 1 Stark. N. P. C. 81. (e) Acerro v. Petroni, 1 Stark. N.P. C. 100. 43. (f) 1 Stark. Ev. p. 125. (g) 2 Stark. N. P. C. 128. (h) Courteen v. Touse, 1 Campb. Leading in chief to contradict former verse party. used particular expressions, or having made a particular statement to A. B., who is afterwards called on the part of the adverse party, witness of ad- for the purpose of contradicting the first witness, by proving that he actually did speak the words, or make the statement to him, it is very usual in practice for the counsel of the adverse party, in examining A. B. in chief as his own witness, to ask him, in the first instance, whether the former witness, in conversing with him, said so and so, or made such and such a statement. And accordingly, where a witness of the plaintiff's, in cross-examination had been asked as to some expressions he had used, for the purpose of laying a foundation for contradicting him, and he had denied having used them, Abbott, C. J., held, that the defendant's counsel, having called a person to prove that the former witness had used such expressions, was entitled to read to his own witness the particular words from his brief. (i) However, a very able writer() has with great force endeavoured to shew, that leading questions under such circumstances are irregular. Leading an adverse or unwilling wit ness. Cross-examination. Leading questions. When a witness, by his conduct during his examination, shews himself decidedly adverse to the party who has called him, or unwilling to give evidence, it is in the discretion of the Judge to allow the examination to assume the form of a cross-examination; and if a witness stands in a situation which of necessity makes him adverse to the party calling him, it has been held that the counsel may, as matter of right, cross-examine him. (k) After the examination in chief is closed, the other party is at liberty to proceed to cross-examination, without regard generally to the rule restricting examinations in chief in respect to leading questions. If the witness betrays a zeal against the cross-examining party, or shews an unwillingness to speak fairly and impartially, he cannot, it should seem, be led too much. (1) But where the witness on the other hand discovers an anxiety to serve the cross-examining party, although the Courts do not usually exclude the counsel, on cross-examination, from putting leading questions, it is obvious that evidence so obtained is very unsatisfactory, and is open to much observation. (m) And, although the witness may be led on cross-examination to bring him directly to the point as to the answer, yet if he has betrayed an inclination to lean, and be favourable to the cross-examining party, it is not allowable to go the length of putting into the witness's mouth the very words which he is to echo back. (n) A witness cannot be asked, upon cross-examination, questions (i) Edmonds v. Walter, 3 Stark. N. P. C. 7. (j) 1 Phil. Ev. 256. (k) By Best, C. J., in Clarke v. Saffery, Ry. & Mood. N. P. C. 126. In Basten v. Carew, ibid. 127., Abbott, C. J, allowed the cross-examination of an adverse witness, and said, "I mean to decide this, and no fur"ther-That in each particular case "there must be some discretion in the "presiding Judge as to the mode in "which the examination shall be con 66 cross-exami irrelevant. the answer or prosecu which are not in any way relevant to the matters in issue; (o) What may be neither is a question allowed to be asked, which, if answered af- asked on firmatively, would be wholly irrelevant to the issue, for the purpose nation. of discrediting the witness if he answers in the negative, by calling Questions other witnesses to disprove what he says ;(p) but this subject will must not be perhaps be more conveniently discussed in a subsequent section,(q) concerning the modes of impeaching the credit of a witness ;(r) in which place will also be considered the obligation of a witness to Obligation of answer questions tending to subject him to a criminal prosecution witness to anor degrading to his character. It is, however, proper to mention in swer, where this place how far a witness is compellable to answer a question, might subject whereby he may subject himself to a civil action, or charge him- to a penalty self with a debt. Considerable doubts had been entertained upon tion, or degrathis subject, before the stat. 46 Geo. 3. c. 37.; for the settlement dation. of which it was thereby declared and enacted, that a witness can- To a civil not by law refuse to answer any question relevant to the matter in suit. issue, (the answering of which has no tendency to expose him to a penalty or forfeiture of any nature whatsoever) by reason only, and on the sole ground that the answering such question may establish, or tend to establish, that he owes a debt, or is otherwise subject to a civil suit, either at the instance of his Majesty, or any other persons.(s) This statute, however, does not affect the right, which the parties to a suit have, of declining to give evidence for the opposite party: and, therefore, upon an appeal, a rated inhabitant of the appellant parish (being considered a party to the appeal) cannot be compelled, even since the statute, to give evidence when called upon by the respondents.(t) And the witness is still privileged from answering any question, the answer to which might subject him to a forfeiture of his estate; for the statute implies, that a witness may legally refuse to answer a question which has a tendency to expose him to a forfeiture of any nature whatsoever. (u) Counsel upon cross-examination cannot assume that the witness Assumptions has made an assertion in his examination in chief, which was not in fact made, (v) or put a question which assumes a fact not in proof.(x) that they are his title deeds, no Judge (1) Rex v. (Inhab.) Woburn, 10 (v) Hill v. Coombe, cor. Abbott, J., Manning's Digest, tit. Witness, pl. 236. (x) Doe v. Wood, cor. Abbott, J., ibid. pl. 237. The objection was frequently taken and allowed during the proceedings in the House of Lords in the Queen's case. See printed evidence. not allowable in cross-exa mination. Cross-exami- written instru- Cross-examination of wit ness called by one of several defendants alone. Who may be cross-examined. It is not allowable upon cross-examination, to ask a witness as to the contents of written instruments, (y) although they are shewn to be in the possession of the opposite party, and notice has been given to the opposite party to produce them.(x) Under what circumstances a cross-examination as to the contents of a written document, for the purpose of impeaching the credit of a witness, is allowable, will be considered hereafter in the fourth section of this chapter.(a) Upon the trial of Kroehl, Gibson, and Koech, (b) for a conspiracy, where the three defendants defended separately, Koech alone called witnesses, and examined to a conversation between himself and Kroehl. The counsel for the prosecution was proceeding to cross-examine as to another conversation between Koech and Kroehl, when the counsel for the prisoner Kroehl objected, on the ground, that the effect might be to bring out a new case against Kroehl, although he had called no witnesses, and after the case for the Crown was finished: but Abbott, J., said, that as Koech had called witnesses, he could not prevent the cross-examination as to any conversations that might affect Koech. It might be a matter for future consideration, whether the counsel for Kroehl, after such evidence, would have a right to address the jury upon it. If a witness be called merely for the purpose of producing a written instrument, which is to be proved by another witness, he need not be sworn, and unless sworn, he is not subject to cross-examination. In Simpson v. Smith and another, (an action for maliciously, and without probable cause, making a charge of felony before a Justice of the peace against the plaintiff, and causing him to be apprehended, tried at Nottingham Suni. Ass. 1822, before Holroyd, J.) the plaintiff's counsel having called upon the Justice to produce the information taken by him, which was accordingly produced, was proceeding to prove the information by the Justice's clerk; when it was insisted by the defendant's counsel, that he should be allowed to cross-examine the Justice, who had produced the examination: but Holroyd, J., held that this could not be done, and that the plaintiff's counsel might proceed to prove the examination in the regular manner.(c) But where, upon an indictment for perjury, the attorney for the prosecution was called and sworn, and produced a copy of a declaration in an action brought by the defendant against the prosecutor, though he was not asked any question on the part of the prosecution, Abbott, C. J., held, that the defendant was entitled to cross-examine him.(d) And if a witness be called, though it be through necessity, for the purpose of the mere formal proof of a document, this makes him a witness for all purposes, and he may be cross-examined as to the whole of the case. (e) So if a witness has been called by one party, and sworn, the other may cross-examine (y) Sainthill v. Bound, 4 Esp. 74. Howell v. Lock, 2 Campb. 14. (z) Graham v. Dyster, 2 Stark. N. P. C. 23. Sideways v. Dyson, ibid. 49. (a) Post. p. 630, 631. (b) 2 Stark. N. P. C. 343. (d) Rex v. Brooke, 2 Stark. N. P. C. 472. (e) Morgan v. Brydges, 2 Stark. N. P. C. 314. |