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Notwithstanding these arguments, public opinion has gradually undergone a change in this country, and in the course of the last twenty years the rules of evidence have been considerably relaxed. The principal reforms which have been introduced are these-Witnesses are no longer rendered incompetent by their interest in the suit. The parties themselves may be examined as witnesses; and so may their wives; except in a few cases. One other improvement is much to be desired; viz. that a prisoner should be allowed to give evidence for himself upon his own trial.
Ir has been stated, that in a cause at Athens either party was at liberty to put questions to the other, and to insist upon having them answered, both at the hearing before the magistrate and at the trial. The answers given before the magistrate were taken down in writing, and afterwards produced in evidence duly verified, if thought necessary. At the trial the questions were answered in the presence of the jury; they could only be put by the party who was addressing the court; for no man was allowed to interrupt the speech of his opponent. The jury however might at any time stop the speaker, and cross-examine him, either on matter of fact or argument; and the parties often requested the jury to exercise this right, and suggested the questions to be asked.
The following is an example from Isæus, (De Hagniæ hereditate, s. 4.)
The speaker calls up the guardian of the claimant, and desires him to state how he makes out his pedigree, at the same time having the law read, which pointed out the true course of inheritance: He proceeds thus:
"Now, as you are so clever at calumny and perversion of the laws, get up here. Usher, read the law." [The law is read.] "Stop. Let me ask you. Is the boy brother to Hagnias, or brother's son, or sister's son? Or is he a cousin, or son of a cousin by the father's or the mother's side? Which of these titles belongs to him, to which the law gives the right of succession? Don't tell me that he is my nephew: the question is not about my estate, for I am alive. If I had been deceased without issue, and he was claiming my property, it would have been proper to give that answer to the question. But now you say, that a moiety of the estate of Hagnias belongs to the boy. You must establish that by his descent he is heir to Hagnias.
Show this to the jury-You see, that he can make out no relationship; but his answers are anything rather than what you want to hear."
Such questioning was allowed at Athens in criminal as well as in civil proceedings. Thus Dinarchus interrogates Demosthenes on his trial for accepting the bribe of Harpalus :
"Did you frame this decree, Demosthenes? You did. You can't deny it. Did the Council receive authority by your delegation? It did. Have any of our citizens been put to death? They have. Was your own decree put in force against them? It is impossible for him to deny it."
The reader is referred also to Andocides on the Mysteries, 101, Edit. Bekker.
Lysias, on the trial of Eratosthenes, one of the thirty tyrants, calls him up and questions him :
"Did you take Polemarchus to prison, or did you not? I obeyed the orders of the government, through fear." "Were you in the council-room, when the discussion about us took place ?"
Did you speak in favour of the motion for putting us to death, or against it ?"
"To save our lives ? "
"Cruel man! you spoke to save my brother, and yet apprehended him for execution!"
Shortly after he says to the jury:
"Eratosthenes must show one of two things, either that he did not take him to prison, or that he took him lawfully. But he has confessed that he took him unlawfully; therefore your verdict becomes an easy matter."
The next example is also from Lysias. A corndealer is charged with the offence, which in our language is termed engrossing, and consists in the buying up large quantities of provisions, especially corn, with intent to resell them at a high price; against which, and the similar offence of regrating, there used to be severe and absurd penalties, now abolished. The prosecutor calls him
"Tell me, are you a resident alien ?"
"Do you reside with intention to obey the laws of the state, or to do what you please?"
"To obey the laws."
'Ought you not to suffer death, if you do any illegal act for which death is the punishment?"
"Answer me now. Do you confess you bought up a greater quantity of corn than fifty bushels, which the law allows ?"
I bought by order of the Archons."
"Well, men of the jury; if he can show there is a law, which requires corndealers to buy up the corn because the Archons order them, acquit him. If he cannot show this, you are bound to convict him; for I have produced you the law, which declares, that no person in the city shall buy a greater quantity than fifty bushels."
That the accused should be entitled to examine the prosecutor, was of course highly just and proper, and would be allowed in all courts where justice is decently administered.
Socrates (in the defence written for him by Plato) avails himself of this privilege, by putting a series of questions in his own peculiar way to Melitus, the accuser. They are very amusing, but too long to be quoted here. Aristotle refers to them in his chapter on interrogatories: (Rhetoric, III. 18).
In England there was formerly no interrogating of parties except that of the defendant by the plaintiff in courts of equity; but now in the courts of common law parties may examine one another, just as they may give evidence for themselves. This does not extend to criminal cases, in which the accused party can never be interrogated; and even in a civil cause a witness may always object to answer a question, if the answer would tend to criminate himself. I expressed an opinion in the last chapter, that parties accused of crime should be permitted to give evidence for themselves as witnesses in their trial. It must be understood, that I would not make this examination compulsory. If they volunteer to give evidence, they would, as a matter of course, subject themselves to cross-examination; which men conscious of guilt would rarely do; the result would be, that the option of giving testimony would prove an advantage to the innocent, and a means of convicting the guilty. To shrink from the test, would of itself be some indication of guilt; to undergo it would generally lead to detection.
Again-while I would never force a man by threats, or induce him by promises, to criminate himself, I do not approve of the course which is so often adopted, and which originated in a mistaken humanity, of cautioning prisoners against saying anything to criminate themselves, and encouraging them not to plead guilty, when they are disposed to make confession. The discovery of truth is the chief thing to be attained. Let it be attained by any fair means. Let no temptation be held out one way or the other, either to confess or deny; but don't let a man's mouth be stopped, when he is willing to make disclosure of what he knows.
The importance of the subject induces me to annex the following, written by myself in a weekly journal in March 1859:
"A bill has been brought into the House of Lords by Lord
Brougham, which, although it is likely to meet with some opposition, will, we doubt not, in due time become the law of the land. It is a bill to extend the Act of 1851, which enabled parties in civil cases to give evidence, to criminal cases, so that the accused party may, if he pleases, be examined as a witness. We consider that this change is urgently required, both as a measure of justice to the accused, and as an improvement in the administration of justice.
"The accused has a right to demand it, on the simple principle that every man is presumed to be innocent until he is proved to be guilty. If he has a right to be examined in a civil cause, why not on a criminal charge, when, by the hypothesis of the law itself, his character and credibility are not destroyed? True, his evidence would be open to some suspicion; it would be that of a strongly interested party; this however is an argument against its weight, not against its admissibility. Every interested witness is liable to the same observation. If all testimony was to be rejected but that which is wholly free from the suspicion of selfish motives, a very large proportion of the evidence, upon which courts of justice are in the habit of acting from day to day, would be excluded from them. The inconvenience, or rather the injustice, of such a practice had long been apparent to lawyers, when Lord Denman's Act was passed, which provided that the interest of a witness should be no ground of his exclusion. This Act led naturally to the Act of 1851, above referred to; and the measure now proposed is a just and necessary extension of the same principle.
"We contend for a positive right on the part of the accused, upon general grounds, irrespective of any hardship existing in particular cases. There are, however, many such cases of hardship. It often happens that a trial which assumes a criminal form is really nothing more than a cause between party and party; and to give the prosecutor the advantage of being heard upon his oath, while his adversary's tongue is tied, is contrary to the first principles of justice. Charges of perjury, conspiracy, false pretences, and many others, are examples of what we mean; in which a man complaining of some fraud practised upon him (perhaps after having failed in the assertion of his right in the civil court) invokes the aid of a criminal tribunal to punish the offender. For instance, a plaintiff in an action has lost the verdict by the testimony of two witnesses. He indicts them for a conspiracy. He and his witnesses are examined in support of the charge; the testimony of the defendants is excluded. But the jury on the former trial had heard them, and had believed them. Why should not the second jury have the same opportunity of hearing and believing? Why should not the second trial be conducted in the same manner as the first? Oh, because the first was a civil trial, and the second is a criminal! As if the proper way to investigate truth were not the same in both! According to our view of the matter, the prosecutor in such a case abuses the process of the law, in order to
obtain an unfair advantage; and the existing law of evidence favours the manœuvre.
"So much for the right of the accused party. But it is urged, that the conferring of such right would be injurious to criminals, because in every case where they declined to give evidence the jury would be prejudiced against them, and they would lose that benefit of a doubt' which, under the present system, turns the scale in their favour, whenever there is some mystery in a case which has not been fully cleared up. If the object of criminal trials were to mystify the judge and jury, or to enable clever criminals to escape, or clever counsel to help them in the attempt, we should assent to this argument; but, as we consider that the administration of the criminal law has for its object the elucidation of truth and the punishment of the guilty, we utterly and strongly dissent from it. Let us see how the thing works. "Evidence is given against a prisoner, strong perhaps, but not entirely free from doubt. The prisoner, or his counsel for him, says, 'If I could give evidence, I could clear up the matter; I could give a full explanation.' Then why shouldn't he? The guilty man alone gains by silence; and he is precisely the person who ought not to gain. It may be said that the innocent has the benefit of the doubt,' as well as the guilty; but then he doesn't want it; he would rather give the explanation in open court, and have the opportunity of fully clearing his character at once, than walk out of court under the protection of the doubt.' Now let us take another case.
Strong evidence has been adduced; strong enough to convict the prisoner, if believed. He has no means of refuting it but by giving his own testimony. An innocent man will desire to do so. By a plain unvarnished tale, he may give a totally different aspect to the affair. He is subject to cross-examination; but this, in the consciousness of innocence, he does not dread. That he should have the opportunity of telling his tale, is most important; and especially in a case of strong circumstantial evidence, where perhaps the only person who can explain the circumstances is the prisoner himself. A guilty man would not benefit by the opportunity, even if he availed himself of it; because he would shuffle, equivocate, prevaricate; his tale itself, as well as his whole demeanour, would strengthen the case against him; while, on the other hand, the honest man, answering promptly and candidly to every question, would obtain a deserved credence.
"There is nothing, therefore, in the objection but this, that some criminals shrinking from cross-examination, for fear the whole truth should come out, would by their own act create a reasonable prejudice against themselves; while others, taking the desperate chance (as they now frequently do) of saving themselves by an artful tale, would generally, by subjecting themselves to cross-examination, ensure their conviction. We can only say that these are results by no means to be deprecated.