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will then be time to take the objection (1). This relaxation, however, of the ancient rule, does not extend so far, as to allow the counsel on the cross-examination to ask the witness every sort of question, which might be proper on the voire dire. For example, after an examination in chief, a witness is not to be cross-examined as to the contents of a will not produced in court, under which it is suggested that he takes some interest, although such questions might be properly asked in an examination on the voire dire. (2)
When the witness has been regularly sworn, he is first examined by the party which produces him; after which, the other party is at liberty to cross-examine. The examination is in open court, in the presence of the parties, their attornies and counsel, and before the judge and jury, who have thus an opportunity of observing the understanding, demeanor, and inclination of the witnesses.
Leading questions, that is, such as instruct a witness how to answer on material points, are not allowed on the examination in chief; for, to direct witnesses in their evidence would only serve to strengthen that bias, which they are generally too much disposed to feel, in favour of the party that calls them. But, if a witness should appear to be in the interest of the opposite party, or unwilling to give evidence, the Court will in its discretion allow the examination in chief to assume the form of a cross-examination. And, in examining a witness for the purpose of directly contradicting another witness, on the opposite side, as to some particular parts of his evidence, which no general examination in chief would be able to touch, leading questions may be properly asked. Thus, for example, after exhausting the witness's memory as to the contents of a written instrument, he may be asked whether it contained a parti
(1) Turner v. Pearte, 1 T.R.717. Perigal. v. Nicholson, 1 Wightw, 64.
(2) Howell v. Lock, 2 Campb. 14.
cular passage, which has been sworn to on the other side; otherwise it would be scarcely possible ever to come to a direct contradiction. (1)
A witness cannot be compelled to answer any question, which has a tendency to expose him to penalties, or to a criminal charge (2). Thus, on an indictment for a rape, the woman is not obliged to answer, whether on some former occasion she had not a criminal connection with other men or with particular individuals (3); nor is evidence of such criminal intercourse admissible (4). So, on an appeal against an order of bastardy, a person cannot be compelled to acknowledge himself the father of a bastard child; but there is no objection to his being sworn, and, if he chooses, he may confess the fact (5). So, it has been held, in an action for a libel (6), (which was published by the defendant in a voluntary affidavit sworn extrajudicially before a magistrate,) that the magistrate's clerk is not bound to answer, whether he wrote the affidavit and delivered it to the magistrate, because the bare copying out of a libel is criminal.
Further, there are some authorities in support of the position, that a witness is not compellable to declare his own infamy, nor to confess what has a direct tendency to degrade his character (7). In Cooke's case, reported in the State Trials, where a question arose, whether a juryman, who had been challenged, might be examined as to his having asserted the guilt of the prisoner before the trial, C. J. Treby
(1) Courteen v. Touse, i Campb. 43. (2) R.v.Ld. G.Gordon, 2 Doug. 593. Title v. Grevet, 2 1.d. Raym. 1088. 16 Ves. jun. 242. Preamb. St. 46 G. 3. 6. 37.
(3) Hodgson's case, by a majority of the Judges on a case reserved, 1812, MS. Dodd v. Norris, 3 Campb. 519.
(4) By the opinion of all the Judges in Hodgson's case, MS.
(5) R. v. St. Mary's, Nottingham, 13 East, 58. n.
(6) Maloney v. Bartley, before
Wood B. 3 Campb. 210. A bill of exceptions was tendered, but afterwards dropped.
(7) Vid. dictum by Treby C. J. in Cooke's case, 4 St. Tr. 748, and by Pratt C. J. Sayer's case, 6 St. Tr. 259. R. v. Lewis, 4 Esp. N.P.C.225. Macbridev. Macbride, do. 242.- In R. v. Edwards, 4 T. R. 440, on an appli. cation to bail the prisoner, the Court allowed the counsel to ask one of the bail, whether he had stood in the pil. lory for perjury.
said, “ You may ask upon the voire dire, whether he has any interest in the cause, nor shall we deny you liberty to ask, whether he is qualified according to law by having a freehold of sufficient value : but that you may ask a juror (1) or witness every question that will not make him criminous, that is too large. Men have been asked whether they have been convicted and pardoned for felony, or whether they have been whipped for petty larceny, but they have not been obliged to answer ; for although their answer in the affirmative will not make them criminal, nor subject them to punishment, yet they are matters of infamy, and, if it be an infamous thing, that is enough to preserve a man from being bound to answer. A pardoned man is not guilty: his crime is purged. But merely for the reproach of it, it shall not be put upon him to answer a question, whereon he will be forced to forswear or disgrace himself. So, persons have been excused from answering, whether they have been committed to bridewell, as pilferers or vagrants, &c.; yet to be suspected is only a misfortune and shame, no crime. The like has been observed in other cases of odious and infamous matters, which are not crimes indictable.” (2)
In Layer's case (3), on an indictment for high treason, the prisoner insisted that a witness should be examined on the voire dire, whether he had a promise of pardon, or some other reward, for swearing against him; the point was argued by his counsel, and over-ruled by the Court. The Lord Ch. J. Pratt said, “ You see, the most you can make of it, is, that it is an objection to his credit; and if it goes to his credit, must he not be sworn, and his credit left to the jury? He must be examined as a legal witness. But if this man, under expectation or promise of a pardon, comes here to swear that which is not true, and you would ask him to that, he is not obliged to answer it. No body is to discredit himself, but always to be taken to be innocent, till it appear
(1) See also Co. Lit. 188. b.
(3) 6 St. Tr. a59.
otherwise. If they, who ask the question, insinuate any thing like that, (namely, that the witness can give no evidence except what is false,) it ought not to have an answer : but if he has a promise of pardon, if he gives true evidence, it is no objection to his being a witness, or to his credit.” And · Mr. Justice Fortescue Aland, referring to a case cited, where a similar point was made and over-ruled, said, “ The reason the Court gave, (that it was improper to ask this question in the voire dire,) was, that if he had this promise, such promise was made either to speak the truth, or to speak a falsehood; if it were to give just and true evidence, there was no harm in it, and if it was a promise of pardon for speaking what was not true, the witness was not bound to answer that question.” It has been before mentioned, that, if a witness is asked, whether he has been convicted of an offence, and admits the fact, yet the mere admission will not make him incompetent; notwithstanding that he might be incompetent, if the conviction were legally proved by an examined copy of the record. (1)
It has been doubted whether a witness could be compelled to give any evidence which might subject him to a civil action or charge him with a debt. But now, “ It is declared by stat. 46 G. 3. c. 37. that a witness cannot by law refuse to answer a question relevant to the matter in issue, (the answering of which has no tendency to accuse himself, or to expose him to penalty or forfeiture of any nature whatsoever,) on the ground, that the answering of such question may establish, or tend to establish, that he owes à debt, or is otherwise subject to a civil suit.” But the right, which the parties to a suit have, to refuse answering any question, is not in any degree affected by this statute ; and therefore, on a question of settlement, a rated parishioner is not compellable by the adverse parish to give evidence, as he is directly interested as party to the
(1) See R.v. Teale, R. v. Careinion, suprà, p. 24.
appeal, and does not come within the words or meaning of the act. (1)
A witness can depose only to such facts as are within his own recollection. But to assist his memory he may use a written entry, or memorandum, or the copy of a memorandum; and, if afterwards he can positively swear to the truth of the fact there stated, such evidence will be sufficient. But, if he cannot from recollection speak to the fact any further, than as finding it stated in a written entry, his testimony will amount to nothing (2). When a witness has recourse to a written memorandum for the purpose of assisting his recollection, there seems to be no good reason for confining him to such writings only as were drawn up at the precise time when the facts occurred; for one person may have as clear and strong a recollection, from looking at a paper written half a year after the fact, as another who wrote down the fact on the very day it happened. However, the entry ought to have been made by the witness himself, or, if made by another, examined by him, while the fact was fresh in his memory. (3)
In general, the opinion of a witness is not evidence: he must speak to facts. But on questions of science or trade, or others of the same kind, persons of skill may speak not only as to facts, but are allowed also to give their opinions in evidence. Evidence of character is founded on opinion, and the opinion of a medical man is evidence as to the state of a patient. So, ship-builders have been admitted to state their opinion on the sea-worthiness of a ship, from a survey, which had been taken by others, and at which they were not present (4). So, in an action of trespass for making an embankment, which was said to have gra
(1) R. v. Inhabitants of Woburn, so East, 395.
(2) Sandwell v. Sandwell, per Holt c.). Com berb. 445. Doe v. Perkins, 3 T.R.752. Tauner v. Taylor, ib. 754. 8 East, 284.289
(3) Burrough v. Martin, 2 Campb. 112.
(4) Thornton v. Royal Exch. Ass. Company, Peake, N.P.C. 25. Chau. rand v. Angerstein, ib. 43.