Written evidence; how to be refuted, § 1, 2. Modes of proceeding with regard to witnesses that appear in person, 3-6. An intimate knowledge of the cause necessary, 7, 8. How voluntary witnesses should be produced, 9-11. Caution requisite in respect to them, 12-14. How a pleader must act with regard to a witness whom he knows to be adverse or favorable to the accused, 15-19. How he must act in regard to one whose disposition he does not know, 20, 21. Of the interrogation of witnesses, 22-32. Of the collision between written and oral testimony, 32-34. Of supernatural testimony, 36-37. 1. THE greatest efforts of pleaders, however, are employed about evidence. Evidence is given either in writing or by witnesses present in court. The opposition to writings is the more simple, for shame may seem to have had less preventive power in the presence of only a few witnesses, and absence may be unfavorably represented as intimating self-distrust. If the character of the writer is open to no reflection, we may perhaps throw some discredit on that of the witnesses to it. 2. Besides, a secret feeling is entertained unfavorable to all who offer evidence in writing, as no man gives it in that way unless of his own free-will, and thus shows that he is no friend to the party against whom he deposes. Yet a pleader on the opposite side should not be ready to admit that a friend may not speak truth on behalf of a friend, or an enemy against an enemy, if the credit of either be unimpeached. But the subject, in both its bearings, furnishes much matter for consideration. 3. With witnesses who are present there may be great contention, and we accordingly engage, whether against them or for them, with the double force of regular speeches and interrogatories. 4. In regular speeches, we commonly offer observations, first of all, for and against witnesses in general. This is a common topic for argument, one side maintaining that there is no evidence stronger than that which rests on human knowledge, and the other, to detract from the credit of such knowledge, enumerating every cause by which testimony is rendered false. 5. The next step is when pleaders make special attacks, though on bodies of men, for we know that the testimonies of whole nations have been invalidated by orators, as well as whole classes of evidence, as in the case of hear-say witnesses, for pleaders maintain that they are not in reality witnesses, but mere reporters of the words of unsworn individuals. In cases of extortion, those who swear that they have paid money to the accused are to be regarded as parties in the prosecution, not as witnesses. 6. Sometimes a pleader's remarks are directed against individual witnesses, a kind of attack which we find in many pleadings, sometimes combined with a defense, and sometimes given separately, as that of Cicero on the witness Vatinius. 7. Let me therefore consider the whole subject, as I have taken upon myself to attempt the entire education of an orator; otherwise, the two books composed on this head by Domitius Afer would have been sufficient, a rhetorician whom I attended with great respect when he was old and I was young, so that the contents of his books were not only read by me, but learned from his own mouth. He very justly makes it a rule that it is the great business of an orator, in regard to this part of his cause, to gain a thorough knowledge of the whole of it, but it is a rule to be observed in regard to every part. 8. How this knowledge may be attained, I shall show when I arrive at the part of my work destined for that subject. Such knowledge will suggest matter for questions, and supply, as it were, weapons to the hand. It will also show us for what the mind of the judge should be prepared by our speech, as it is by a regular address that the credit of witnesses should be either established or overthrown, since every judge is affected by testimony just as he has been previously influenced to believe or disbelieve it. 9. Since, then, there are two sorts of witnesses, those who appear voluntarily and those whom the judge commonly summons on public trial according to law (of the first of which kinds either party may avail themselves, while the latter is conceded only to accusers), let us distinguish the duty of the pleader who produces witnesses from that of him who refutes their testimony. 10. He that produces a voluntary witness may know what he has to say and consequently appears to have the easier task in examining him. But even this undertaking requires penetration and watchfulness, and we must be cautious that the witness may not appear timid, inconsistent, or foolish, 11. for witnesses are confused, or caught in snares, by the advocates on the opposite side, and when they are once caught, they do more harm than they would have done service if they had been firm and resolute. They should therefore be well exercised before they are brought into court, and tried with various interrogatories, such as are likely to be put by an advocate on the other side. By this mean they will either be consistent in their statements or, if they stumble at all, will be set upon their feet again, as it were, by some opportune question from him by whom they were brought forward. 12. But even in regard to those who are consistent in their evidence, we must be on our guard against treachery, for they are often thrown in our way by the opposite party and, after promising everything favorable, give answers of a contrary character and have the more weight against us when they do not refute what is to our prejudice, but confess the truth of it. 13. We must inquire, therefore, what motives they appear to have for declaring against our adversary. Nor is it sufficient to know that they were his enemies. We must ascertain whether they have ceased to be so; whether they may not seek reconciliation with him at our expense; whether they have been bribed; or whether they may not have changed their purpose from penitential feeling. These precautions are not only necessary in regard to witnesses who know that which they intend to say is true, but far more necessary in respect to those who promise to say what is false. 14. For they are more likely to repent, and their promises are more to be suspected. Even if they keep to their word, it is much more easy to refute them. 15. Of witnesses who are summoned to give evidence, some are willing to hurt the accused party and some unwilling, and the accuser sometimes knows their inclination and is sometimes ignorant of it. Let us suppose for the moment that he knows it, yet in either case, there is need of the greatest circumspection on the part of him who examines them. 16. If he finds the witness disposed to prejudice the accused, he ought to take the utmost care that his disposition may not show itself, and he should not question him at once on the point for decision, but proceed to it circuitously, so that what the examiner chiefly wants him to say may appear to be wrung from him. Nor should he press him with too many interrogatories, lest the witness, by replying freely to everything, should invalidate his own credit, but he should draw from him only so much as it may seem reasonable to elicit from one witness. 17. But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is to extort from him what he does not wish to say. This cannot be done otherwise than by questions that seem wide of the matter in hand, for to these he will give such answers as he thinks will not hurt his party, and then, from various particulars which he may confess, he will be reduced to the inability of denying what he does not wish to acknowledge. 18. For as in a set speech, we commonly collect detached arguments, which, taken singly, seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be questioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects, so that he may be brought to give some answer. After this he must either acknowledge what we wish or contradict what he himself has said. 19. If we do not succeed in that object, it will then be manifest that he is unwilling to speak, and he must be led on to other matters that he may be caught tripping, if possible, on some point, though it be unconnected with the cause. He may also be detained an extraordinary time, that by saying everything and more than the case requires, in favor of the accused, he may make himself suspected by the judge, and he will thus do no less damage to the accused than if he had stated the truth against him. 20. But if (as we supposed in the second place) the accuser be ignorant of the witness's disposition, he must sound his inclination cautiously, interrogating him, as we say, step by step and leading him gradually to the answer which is necessary to be elicited from him. 21. But as there is sometimes such art in witnesses, that they answer at first according to an examiner's wish, in order to gain greater credit when they afterwards speak in a different way, it is wise in an orator to dismiss a suspected witness before he does any harm. 22. For advocates that appear on behalf of defendants, the examination of witnesses is in one respect easier, and in another more difficult, than for those who are on the side of the prosecutor. It is more difficult on this account, that they can seldom or ever know, before the trial, what the witness is going to say; and it is easier, in as much as they know, when he comes to be questioned, what he has said. 23. Under the uncertainty, therefore, which there is in the matter, great caution and inquisition is necessary, to ascertain what sort of character he is that prosecutes the defendant; what feeling he entertains against him; and from what motives. All such matters are to be exposed and set aside in our pleading, whether we would have the witnesses appear to have been instigated by hatred, by envy, by desire of favor, or by money. If the opposite party, too, produces but few witnesses, we may reflect on their small number. If they are extraordinarily numerous, we may insinuate that they are in conspiracy; if they are of humble rank, we may speak with contempt of their meanness; if persons of consequence, we may deprecate their influence. 24. It will be of most effect, however, to expose the motives on which the witnesses speak against the defendant, which may be various, according to the nature of causes and the parties engaged in them. For to such representations as I have just mentioned, the opposite party can answer with commonplace arguments, as when the witnesses are few and humble, the prosecutor can boast of his simple honesty in having sought for none but such as were acquainted with the case in hand, while to commend a large number or persons of consideration is a somewhat easier task. 25. But occasionally, as we have to commend witnesses, so we have to decry them, whether their testimony is read in our pleading or they are summoned to give it personally. Such attempts were easier and more frequent in the times when the witnesses were not examined after the pleading was ended. As to what we should say against the witnesses respectively, it can only be drawn from their individual characters. 26. The manner of questioning witnesses remains to be considered. In this part of our duty, the principal point is to know the witness well, for if he is timid, he may be frightened; if foolish, misled; if irascible, provoked; if vain, flattered; if prolix, drawn from the point. If, on the contrary, a witness is sensible and self-possessed, he may be hastily dismissed as malicious and obstinate; or he may be confuted, not with formal questioning, but with a short address from the defendant's advocate; or he may be put out of countenance, if opportunity offer, by a jest; or, if anything can be said against his moral character, his credit may be overthrown by infamous charges. 27. It has been advantageous, on certain occasions, not to press too severely on men of probity and modesty, for those who would have fought against a determined assailant are softened by gentle treatment. Every question is either about some point within the cause or on some point without it. On matters within the cause, the advocate of the accused, as we also directed the accuser, may frequently, by putting questions a little widely and on subjects from which no suspicion will arise, and by comparing previous with subsequent answers, reduce witnesses to such a dilemma as to extort from them against their will what may be of service to his own cause. 28. On this point, there is certainly no instruction or exercise given in the schools, and excellence in it depends rather on natural acuteness or experience than anything else. If any model, however, ought to be pointed out for imitation, the only one that I can recommend is that which may be drawn from the dialogues of the Socratic philosophers, and especially Plato, in which the questions are so artful that though the respondent answers correctly to most of them, the matter is nevertheless brought to the conclusion which the questioner wishes to establish. 29. Fortune sometimes favors us by causing something to be said by a witness that is inconsistent with the rest of his evidence, and sometimes (as more frequently happens) she makes one witness say what is at variance with the evidence of another, but an ingenious mode of interrogation will often lead methodically to that which is so frequently the effect of chance. 30. On matters without the cause, also, many serviceable questions are often put to a witness, as concerning the character of other witnesses; concerning his own; whether anything dishonorable or mean can be laid to the charge of any of them; whether they have any friendship with the prosecutor, or enmity against the defendant. In replying to such questions, they are likely to say something of which we may take advantage, or may be convicted of falsehood or malevolence. 31. But all questioning ought to be extremely circumspect, because a witness often utters smart repartees in answer to the advocates and is thus regarded with a highly favorable feeling by the audience in general. Questions should be put, too, as far as possible, in familiar language, that the person under examination, who is very frequently illiterate, may clearly understand or at least may not pretend that he does not understand, an artifice which throws no small damp on the spirit of the examiner. 32. It is a disgraceful practice to send a suborned witness to sit on the benches of the opposite party, that in being called from thence he may do him the more damage, either by speaking directly against the person on whose side he had placed himself, or by assuming, after having appeared to benefit him by his evidence, airs of impudence and folly, by which he not only discredits his own testimony, but detracts from the weight of that of others who may have been of service. I mention them, not that they may be adopted, but that they may be shunned. There is frequently a collision between written attestations on the one side and the witnesses who appear in person on the other, and this furnishes matter of debate for both parties, the one resting their arguments on the oaths of the witnesses, and the other on the unanimity of those who signed the depositions. 33. There is often a question, too, between the witnesses and the arguments. On the one side, it is argued that there is in the witnesses knowledge of facts and regard for their oaths, and in the arguments nothing but mere subtlety. On the other side, it is argued that witnesses are procured favor, fear, money, malice, hatred, friendship, or solicitation, while arguments are drawn from the nature of the subject, that in hearing witnesses, the judge trusts to himself, in listening to arguments, to another. 34. Such questions are common to numbers of causes; they have always been, and always will be, subjects for violent discussion. Sometimes there are witnesses on both sides, and the question arises, with regard to themselves, "Which of them are the most respectable?" with regard to the cause, "Which of them have given the most credible evidence?" and, with regard to the litigating parties, "Which may have had most influence over the witnesses?" 35. To these kinds of evidence, if any one wishes to add what are called supernatural testimonies, from responses, oracles, and omens, let him be reminded that there are two modes of treating them, the one general, in respect to which there is an eternal dispute between the Stoics and Epicureans, whether the world is governed by a divine providence, the other special, in reference to certain parts of supernatural evidence, as they happen severally to affect the question. 36. For the credit of oracles may be established or overthrown in one way, and that of soothsayers, augurs, diviners, and astrologers in another, as the nature of the things themselves is entirely different. In supporting or demolishing such circumstances in a cause the voice of the pleader has much to do, as if, for instance, expressions have been uttered under the effects of wine, or in sleep, or in madness, or if information has been caught from the mouths of children, for in regard to all such individuals, one party will say that they do not feign, and the other that they mean nothing. 37. The mode of proof by witnesses may not only be offered with great effect, but may also be greatly missed where it is not produced: "You gave me the money; who counted it? where? whence did he come? You accuse me of poisoning; where did I buy the poison? from whom? for how much? by whose agency did I administer it? who had any knowledge of the deed?" Almost all these points Cicero discusses in his speech for Cluentius under a charge of poisoning. Such are the remarks which I have ventured to offer, as briefly as I could, concerning inartificial proofs.
|
