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not by a deputation of thu court.
as to the value of their testimony: the adverse party is also afforded an opportunity of objecting to their competency,' or of trying their credibility by cross examination.
It is not competent to a court martial to examine a witness by deputation of part of their number; though under particular circumstances, in the event of an important witness being prevented from attending at the appointed place of assembling, the court may, with the concurrence, or on the order, of the authority convening it, assemble at the quarters or residence of the desired witness.
All witnesses must give their evidence under the sanction of an oath, whatever their rank or station; the only exception by law allowed being on the plea of religious scruples.?
The charges against the prisoner or an abstract of them are sometimes read to the witness about to deliver his testimony, before the administration of the oath, at other times after ; but the former, if the charge be read at all seems the preferable practice, as, by it, the matter before the court, touching which the witness expressly swears, is more directly brought to his consideration, whilst taking the oath.
Should the reading of the charge instruct the witness how to answer and have the effect of a leading question, as for example, on a trial for disrespect, the prisoner being charged with the utterance of particular expressions and the precise words being specified, the words should be omitted, as should in all cases any detail whether of circumstances, gestures or expression, to which the prisoner might reasonably raise an objection.
(1) See competency of witnesses, post. (2) See pages 205.-207 for the cases where affirmations may be substituted.
when to le Avoidud
The proper time to raise an objection to the competency of a witness is before he is sworn; in which case the practice formerly was to examine him on the voire dire; but the rule in the civil courts is now so far relaxed that should it be discovered in the progress of his examination that a witness is interested, it will then be time to take the objection.
A witness, on being regularly sworn, is first Order of the examined by the party producing him, which is of witnesses, termed the examination in chief; the adverse in chief. party then cross-examines; the former party reexamines on such fresh matter as may have been elicted by the cross-examination; and, finally, the court put such questions as they may deem expedient. Witsesses before courts martial, Advantage of immediately on being sworn, are sometimes means of directed by the president to relate what they know respecting the charge against the prisoner. In such cases, the witness, either to connect what he has to offer, from the influence of feeling or from other cause, is often betrayed into hearsay, and induced to make statements which cannot be legally received in evidence; it therefore becomes necessary, in recording the evidence, to distinguish between the parts of the witness's statement which can be legally received, and the parts which cannot; and although the duty may be ably performed by a judge advocate or president; yet impressions are sometimes made upon individual members, which the admissible parts of a witness's statement may not be calculated
examining by question and answer.
(1) Phil. 281.
Witnesses examined separately;
to convey; whereas, in the ordinary mode of question and answer, as on the one hand, illegal questions would be thrown out; so, on the other, answers not bearing on the question would be immediately objected to; the practice, therefore, of examining by question and answer, though probably more tedious in the first place, tends to greater precision in the admission of evidence, and may also ultimately save the time of the court, by excluding extraneous matter, or by operating as a check to its admission.
On courts martial, no witness is permitted to be present during the examination of another; consequently the influence which the testimony given by one may tend to create in another is obviated, and collusion rendered more difficult. When a prisoner had, with the consent of a brother officer, whose name was on the list of witnesses, solicited the court to permit his assistance during the trial, the request was denied, and the court, in its remarks subjoined to the sentence, animadverted on the request, observing as to the conduct of the officer authorizing the prisoner to solicit his assistance : “ That the paramount duty of an officer, and more especially of an officer of rank,” (the officer referred to was the major of the regiment,) "is to support
(1) This is not the case in civil courts of english judicature, but either party, at any period of a cause, bas a right to require that the unexamined witnesses shall be sent out of court. (Southey v Nash, 7 C. P. 632.) In Scotland so strictly is this rule observerl, that if a witness has been present in court during the examination of another witness, so as to hear his evidence, he will be rejected. (Hume on the crim. law of Scotland, vol. 2. p. 365.) Mr. Tytler, guided by this custom of the courts of Scotland, has applied the principle to courts martial; he states (p. 252) that the circumstances of witnesses being present during a previous examination, would of itself afford a valid objection to their restimony, being a species of subornation. It is conceived that this author has not sufficiently recollected, that the practice of english courts of judicature can alone be referred to, when the custom of courts martial cannot be confidently relied on.
discipline by adherence to the principles of established rules, rather than indulge an impulse however amiable, perhaps to the prejudice of justice, or countenance misconduct by injudicious commiseration.” In confirmation of this rule, it may also be noticed that the adjutant general and quartermaster general, who had belonged to the expedition to Buenos Ayres, had been summoned, on the part of the prosecution, as witnesses on the trial of lieutenant general Whitelocke: the lieutenant general, conceiving they might be of use to him in his defence, submitted to the court that they might be permitted to be present during the trial ; the judge advocate who prosecuted, observed that the evidence of those officers was material for the prosecution; the court, after deliberation, determined that lieutenant general Whitelocke's request could not be complied with, but that he might speak to those gentlemen as often as he thought proper.?
This custom of examining witnesses sepa- Excepti rately, though highly desirable and conducive inadvertently to the development of truth and the detection of another ; of falsehood, is not so rigidly observed as to exclude the testimony of a person who may, by inadvertence, have been present at the examination of other witnesses. It may, in certain cases, render his testimony suspicious, but does not render him incompetent.
The judge advocate and prosecutor, being Judge Advocato necessarily present during the examination of I witnesses, all witnesses, if required to give evidence, are witnesses.
; present during the examination insist on the
(1) G. O. on the promulgation of the sentence of a general court martial on ensign Alex. Sutherland, 91st regiment, 10th July, 1813.
(2) Lieutenant general Whitelocke's trial, p. 2.
sworn immediately after the opening address of the prosecutor; nor would it be proper, at any other stage of the proceedings, to admit their examination or deposition in chief, except when
called as witnesses for the defence. Prisoner may A prisoner may insist on the testimony of testimony of the the prosecutor, which arises from the fact pre.
viously stated, that on all trials by courts martial, the proceedings are, as in criminal cases, at the suit of the crown: the prosecutor may also be called upon to produce documents of any kind, deemed necessary by the prisoner
for his defence.2 Member of a A member of a court martial, as a judge or Court Martial may give
juror,' is a competent witness and may be sworn to give evidence in favor of, or against a prisoner, at any stage of the proceedings; it is however to be avoided, if foreseen. It need scarcely be observed, that no communication by a member in closed court, can be received; he must be sworn as other witnesses, in open court, and be subject to cross-examination ; neither ought the private knowledge of any fact to influence the particular verdict of a member; he is sworn to administer justice strictly according to the evidence before the court, not the evidence con
(1) A proceeding, which is believed to be equally opposed to the customs of courts martial and civil courts of judicature, is reported to have been permitted on the general court martial which was held at Cork, in December, 1833, for the trial of captain Wathen, of the king's hussars. All the papers of the day, which reported the proceedings in full, stated that the prosecutor offered bin:elf on the ninth day, and was accepted as a witness in support of the three first charges. When it is considered that this prosecutor had opened his case by an address, and had for eight days examined witnesses by interrogation on these charges, there can be but one opinion as to the inadvertence of the proceeding: nor ought this deviation from the well-established custom of the service to have any effect in unsettling & practice which is essential to the duo administration of justice.
(2) See page 191. (3) 2 Hawk. c. 46, s. 17.