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Judges And Witnesses
by [?]

The proceedings in the recent Bravo poisoning case have raised a good deal of discussion in England as to the license of counsel in cross-examination–a question which recent trials in this country have shown to possess no little interest for us also. In the Bravo inquest, as in the Tichborne case and the Beecher trial of the last year, the cross-examination of the witnesses was pushed into matters very remotely connected with the issue under trial, so that the general result of the inquiry was not, as in most cases, the eliciting of a certain number of facts bearing on the question in court, but a complete revelation of the whole private life of a family, or of a certain part of it, and even of a whole circle of families. The glaring exposure of matters usually kept close, and not even talked about, formed in fact the great fascination of these causes celebres. It was difficult at the first blush to see how in the Beecher trial Tilton’s eccentric nocturnal habits could have thrown any light upon the question of Beecher’s guilt; nor in the Tichborne case was it at all apparent that an answer to the inquiry put to some witness–whether he had, at some distant period of time, had improper relations with some persons not connected with the case–could even remotely tend to settle the claimant’s identity. The Pall Mall Gazette, discussing this kind of cross-examination resorted to for the purpose of breaking down the credit of a witness–of “showing him up” to the jury, and thus inducing them to pay less attention to his evidence than they otherwise would–has stated the case in the following manner: “Suppose, it says, that the legislature of a free country were some fine morning to pass a law authorizing anyone who chose to take it into his head to compel any inhabitant of the country to answer any questions he might think fit to put with regards to the other’s moral character, his relations with his parents, brothers and sisters, wife and children, his business affairs, his property, his debts, and in fact his whole private life, and to do all this without there being any dispute between them or even any alleged grievance, what would be thought of such a law? Would it be endured for an instant?” Now, this, the Pall Mall Gazette continues, is to-day the law of England. It is just to this odious tyranny which anyone, by bringing a suit, can, under the vague and almost unlimited power to punish for “contempt of court,” force submission.

The law on this subject is, generally speaking, the same in the United States as in England, and this tyranny, if it really exists, weighs upon us as heavily as it does upon Englishmen. The first question that suggests itself is whether this is really a fair statement of law, and, of course, the Pall Mall Gazette admits that there exist limitations of the right of cross-examination, but it contends that these are so undefined as to amount to little or nothing in the way of protection. The authorities contain little on the subject, except that cross-examination as to credit is allowed to go very far, and that judges may in their discretion stop it when it goes too far. But judicial discretion is proverbially an uncertain thing. It varies not merely with the court, but even in the same judge it is affected by the state of his temper, his curiosity, his feeling toward the counsel who is examining, and by thousands of other things that no one can know anything about or depend upon. Usually it is easier not to exercise than to exercise discretion, and the result is that the right of cross-examination is usually unchecked, and in most important cases which are widely reported the right is pushed to lengths which, with witnesses of any sensibility, amount to a process of slow torture. If the right is abused in England, it is unquestionably abused here, and probably at the time of the Beecher trial we should have had complaints about it but for the fact that in the singular society in which the parties to that case lives, a craving for notoriety had been developed which made any discussion of their private affairs less disagreeable than it is to most people. But with the great majority of mankind there is nothing more odious than the extraction, by a sharp, hostile lawyer, from their own unwilling lips, of the details of their moral history. There is probably no one in existence, however good, and however quiet his conscience may be, who can endure without a shudder the thought of every transaction of his past life being dragged out in a court of justice for the amusement of a gaping crowd. Exactly how far the right is abused, and how far the discretionary powers of courts to limit its abuse accomplish their end, it is impossible to say, for it is only in sporadic cases of unusual importance that interest in the result is strong enough to warrant a lawyer’s going to great length in cross-examination. Usually, too, it should be said for the credit of the profession, reputable lawyers shrink from outraging a witness’s sensibility. But after everything is admitted that can be admitted in favor of the existing state of the law, it is impossible to deny that the door is left very wide open to disgraceful assaults upon credit which inflict serious and irreparable damage.