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a satisfactory case is presented to a judge on affidavit of the facts, and the applicant has been guilty of neither fraud nor laches, a judge will usually grant a postponement of a trial, with the consent of parties, till a later day of the sittings, if the business of the court permit; otherwise the party must proceed; or, if a plaintiff, he may withdraw the record.
ON THE EXAMINATION OF WITNESSES.
WHEN a witness has been placed in the witness box, and no objection taken or sustained against his competency by the adverse party, he must be sworn by the officer of the court, or, when an affirmation is allowed, he must declare an affirmation.1 He may then be submitted to three distinct kinds of examination as to his knowledge of the facts which he is called to prove. 1st. He may be examined in chief by the party who calls him. 2nd. He may be cross-examined by the adverse party. 3rd. He may then be reexamined by the party who calls him. Rules are established for the general conduct of each of these modes of examination, and it is the purpose of this chapter to state and explain them.
THE EXAMINATION IN CHIEF.
The object of the examination in chief is to elicit from the witness all the material facts which tend to prove the case of the party who calls the witness. In such a case, as the presumption and the ordinary fact are that the witness, having been chosen by the party who calls him, is favourable to his cause, and therefore
1 Cf. sup. p. 23.
likely to overstate or misstate the circumstances which conduce to establish the party's case, it is a principal rule that
On an examination in chief, a witness must not be asked leading questions.
The simple meaning of this rule is that a party, who calls a witness to prove a case, must not suggest answers to the witness, nor frame his questions in such a manner that the witness by answering merely "Yes," or "No," shall give the reply and the evidence which the party wishes to elicit. A question is said to be leading when the words, which the witness is expected and required to utter, are put into his mouth; and such a question is inadmissible, because the object of calling witnesses and examining them vivâ voce in open court is, that the judge and jury may hear them tell their own unvarnished tale of the circumstances which they are called to attest. If, therefore, a party or his counsel were allowed to put a question to their own witness which the latter might answer by a mere affirmative or negative, it is apparent that the evidence would be the statement of the party, and not that of the witness. Such a course would strike radically at the credibility of all oral evidence, and therefore it is a sound and established rule that, on the examination in chief, leading questions must not be asked.
The rule may be exemplified thus: A. B. is charged with stealing a watch, the property of C. D. E. F. saw A. B. take the watch from the counter in C. D.'s shop. Now, if the counsel for the prosecution, in order to prove the theft, were to call E. F. and ask him "whether at such a time he saw A.B. enter C.D.'s shop and take the watch from the counter," it is plain that such a question would be leading, because it would at once suggest to the witness the answer which he was expected to make, and the prisoner would be convicted by an answer simply in the affirmative. The
answer to the latter branch of the question involves the whole question of guilt, and the substance of the charge. The witness ought, therefore, to be asked, not whether he saw the prisoner commit the offence, but what he saw the prisoner do at the time when and at the place where it is alleged that the offence was committed. It is also to be noticed, that questions are not objectionable as leading questions, except when they affect the substance of an inquiry and an issue. Thus, in the above example, it would be quite proper, for the purpose of saving the time of the court, to ask the witness whether at a specified time he entered C.D.'s shop, and even whether at that time he saw the prisoner there, and near the counter. Such questions are quite immaterial, and may therefore be put in the shortest and most direct manner possible, because the answer cannot inculpate the prisoner in any proximate degree, nor even at all. But when the real issue is
approached, and when it is sought to fix guilt on the prisoner, the witness must be asked, not whether he saw the prisoner do a certain act, but what he saw the prisoner do. Such a course of examination is clearly necessary to prevent, at least in some measure, the possibility of collusion between a prosecutor, or a party, and his witness.
It may be noticed in this place, that where an adverse party has reason to suspect collusion between his opponent's witnesses, or even where he is without any ground of reasonable suspicion, he may apply to the court, in any civil or criminal proceeding, to order all such witnesses, or any of them, with the exception of the one under examination, to leave the court; and such an order, although apparently not absolutely a matter of right, is never refused to the applicant.' The order does not usually extend to an attorney in the cause, nor to scientific witnesses. If a witness remain
1 Southey v. Nash, 7 C. & P. 632; R. v. Murphy, 8 C. & P. 307; s. v. R. v. Cook, 13 How. St. Tr. 348.
in court after such an order, it seems that he may be attached; but his evidence will be received, although subject to strong observation.1
The rule that leading questions must not be asked on an examination in chief is neither inflexible nor universal. The conduct of all vivâ voce examination is at all times subject to the discretion and direction of the judge; and, although he will enforce vigilantly the general rule, yet there are also various cases in which he will suffer it to be relaxed. The foundation
of the rule is, that the witness is favourable to the
party who calls him. Whenever, therefore, it appears that the witness is hostile, or that his evidence cannot be extracted by general questions as to his knowledge of material facts, the judge may, and will, permit the party, or his counsel, to put a leading question to him point blank as to a material fact, and require him to answer it in the affirmative or negative. In such a case an examination in chief frequently assumes the form of a cross-examination.
So, also, where a question from its nature cannot be put except in a leading form, the judge will allow it to be put. Thus, where an offence is proved, a prisoner may be pointed out to a witness, and the latter may be asked whether the prisoner was the man whom the witness saw commit the offence.2
So, also, where a witness has manifestly or apparently forgotten a circumstance, and all indirect attempts to recall it to his mind have failed, the circumstance may be put to him in a leading form, and he may be asked whether he remembers it. Thus, where a witness stated that he could not remember the names of certain persons, but that he should remember and be able to identify them if they were read to him, Lord Ellenborough allowed this to be done.3
On this principle it is allowable to hand a witness a
1 Chandler v. Horne, 2 M. & R. 423.
2 R. v. Watson, 2 Stark. 128.
3 Acerro v. Petroni, 1 Stark. 100.