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CROSS-EXAMINATION.—ITS BENEFITS AND
BY ALBERT S. Osbor N.
Some cross-examination is unnecessarily cruel, much crossexamination is actually damaging to the case of the crossexaminer, and the great mass of cross-examination is useless and utterly inane and silly. The most unscientific work in the practice of the profession is undoubtedly done in cross-examination; it usually starts without plan or purpose: it arrives nowhere, and most of it should be omitted altogether. Silliness can be forgiven, the waste of time perhaps excused, but the unnecessary cruelty should be condemned and prevented. The traditions of the law too often allow even the petty lawyer, who may be held in contempt by his neighbors, to stand behind the protecting shrubbery of legal precedent and throw mud at them as they pass by. Too often he is permitted to insult respectable men and sensitive women with an assurance, impunity, and brutality that is a sad commentary upon the profession. Cross-examination is highly valuable, and an indispensable part of the conduct of a trial, but, like many good things, may be abused and diverted from its true purpose, which is to serve as an aid in eliciting truth and a means of promoting justice: too often it is used for exactly the opposite purpose. It would seem that the conscientious witness, who has told damaging truth, must be attacked, humiliated, and insulted, even if the testimony itself cannot be successfully assailed. The inexperienced spectator of such a proceeding wonders that such things can be permitted in this enlightened age, and is astounded to learn that it is not only permitted to continue, but too often applauded by the profession. The lawyer, through familiarity with the spectacle, does not seem to be able to fully understand its enormity. The Judge should be given greater control over this matter of cross-examination, as well as the whole conduct of a trial, and the sentiment of the profession should not simply frown upon, but should condemn, such flagrant, dishonest, and disgraceful acts, Think of a merchant or a banker doing such things day after day and not being condemned' But in the lawyer it
too often is excused if not actually applauded by the profession.
By such methods fraud may actually win against the facts in what is called a Court of justice, and those who are thus defeated are inclined to say in earnest what the wag said in jest, that a Court is a place where justice is dispensed— with. - Cruel cross-examination of the honest witness should be prevented, and the flabby, inane, purposeless exhibitions of supposed rational men, which constitutes the bulk of the usual cross-examination, should be reduced in volume. In the investigation of the Titanic disaster, one witness was asked what an iceberg is composed of, and he promptly replied, << Ice.” Hundreds of questions of the most trivial, idiotic character are asked every day in Courts of law to no purpose, and great deserts and wastes of words are used in examinations like the following:— “Q. Where were you standing—in the road, or on the grass? “A. On the grass. “Q. Was the grass green or brown? “A. Green. “Q. Will you on your oath su'ear it was green (with great emphasis on swear): “A. Yes (very timidly). “Q. Was it all green, or partly green (emphasis on “all”) * “A. All green (almost inaudible). “Q. Do you not know that all grass is only partly green 2 “A. No (very low). “Q. (with great severity and very loud). Are you as sure of what you have sworn to in this case as you are of the color of the grass that day? “A. (very timidly). Yes, sir. “Q. That is all (with distinct emphasis on “all”).” The technical witness, who knows his rights and has told the truth about a subject he understands much better than the examiner can hope to understand it, is, of course, able to protect himself, and can in most cases enforce his testimony on cross-examination. He cannot always escape slurs, if not open insults; but the average lawyer is at once at a disadvantage when he does not have for a victim the usual inex
perienced witness, who does not know his rights, and who can easily be taken advantage of. It is seldom, indeed, that any but the greatest lawyers have the self-control and cool judgment not to cross-examine at all. The usual practice is to make copious notes of the testimony, much of it only half correct, and then carry the witness back over the whole story, thus making it clearer and stronger. Lawyers as a rule resent hotly any suggestion that the Judge should be given more power over the conduct of trials, and the Legislatures of many states, made up mostly of lawyers, have so restricted the power of the Judge that he is only a sort of moderator or umpire, whose business it is to keep order and prevent the lawyers from breaking up the furniture of the Court-house, and he must be very careful to do even this in a way that “does not prejudice the case before the jury.” The interests of justice would be promoted by restoring the old common-law powers to the Judge, as now exercised in Canada and England. When the old powers are restored, then all should unite to see that only the best possible Judges are selected. The capable, upright, unprejudiced, fearless Judge, whose hands are not tied, is the living embodiment of the spirit of justice, and an advocate not of a party of the first or the second part, but of the truth. When we ourselves take a just cause into Court, we are not so much interested in the game the lawyers are playing with the law as we are to have justice done, and to see to it that honest witnesses are protected from biting sarcasm and bitter insult. One thing the upright and powerful Judge can do is to protect the inexperienced, who are brought into Court to help prove the truth, and to cut short, or at least a little shorter, those spectacles in Courts of law called “crossexamination,” that the angels must look down upon with pity and with horror.
PRIWY COUNCIL, DECISION.
The Privy Council has allowed the appeal of the Royal Bank of Canada from the judgment against the bank in the Alberta Provincial Court to paying over to the provincial government a sum involving $6,000,000 held in connection with the Alberta and Great Waterways Railway project. The question argued before the Privy Council was the validity of an Act of the legislature. The Lord Chancellor, in delivering judgment, said that it was a question of great importance, and proceeded to review exhaustively the grounds for appeal, going on to speak of the public uneasiness shewn in 1910, about the action of the government in entering into arrangements concerning the railway. While a Royal Commission of Enquiry was sitting, there was a change of government. The new administration introduced and passed two statutes, and on the validity of the first of these, the question to be decided in appeal turned. This statute, after setting out in the preamble that the railway company had made a default in payment of interest on bonds and in the construction of the line, and then ratifying and confirming the guarantee by the province of the bonds, enacted that the whole of the proceeds of the sale of the bonds, and all interest thereon, including such part of the proceeds of the sale as was then standing in the banks in the name of the treasurer of the province or otherwise, and comprising inter alia the six million dollārs, and accrued interest in the appellant bank, should form part of the general revenue fund of the province, free from all claim of the railway company, and be paid over to the treasurer without deduction. It was also provided that, notwithstanding the form of the bonds and guarantee, the province should, as between itself and the railway, be primarily liable on the bonds, and should indemnify the company against claims. By another statute, passed at the same time, any person claiming to have suffered loss or damage in consequence of the passing of the act might submit his claim to the government. The Lord Chancellor went on to cite the steps subsequently taken in legal proceedings.
Continuing he said: “Their Lordships are not concerned with the merits of the political controversy which gave rise to the statute, the validity of which is impeached. What they have to decide is the question whether it was within the power of the legislature of the province to pass. the Act of 1910. They agree with the contention of the respondents that in a case such as this it was in the power of that legislature subsequently to repeal the act which it had passed. If this were the only question which arose, the appeal could be disposed of without difficulty, but the Act under consideration does more than modify the existing legislation. It purports to appropriate to the province the balance standing at special discounts in banks, and so change its position as regards a scheme for the carrying out of which bondholders had subscribed their money.
“Elaborately as the case was argued in the judgments of the learned Judges in the Courts below, their Lordships, are not satisfied that what appears to them to be the fundamental question at issue has been adequately considered. It is a well-established principle of English common law that when money has been received by one person, which in justice and equity belongs to another, under circumstances which render the receipt of it a receipt by the defendant to the use of the plaintiff, the latter may recover. As for money had and received to his use, the principle stands, and as to cases where the money has been paid for a consideration that has failed, the present case appears to fall within the broad principle on which judgments in the case of Wilson v. Church proceeded.
“Lenders in London remitted their money in New York, to be applied to carrying out a particular scheme established by statutes in 1909, and orders-in-council, and by contracts and mortgage of that year. The money claimed in action was paid to the bank as one of those designated to act in carrying out the scheme. The bank received the money at its branch in New York, and the general manager then gave instructions from the head office in Montreal, to the manager of the local branches for the opening of credit for special account. The local manager was told he was to act on instructions from the head office, which retained control.
“It appears to their Lordships that the special account was opened solely for the purpose of the scheme, and that when the action of the government in 1910, altered its con