cross-examination. 559l~ cross-examination

(of the Court of King's Bench for Saskatchewan) .

CROSS-EXAMINATION . 559L~

CROSS-EXAMINATION.'

BY THE HONOURABLE MR. JUSTICE MACKENZIE

I shall undertake to-night to say something to youabout some features of cross-examination . I mustconfess that it is with a feeling of some temerity, for-I realize that there are many skilful masters of the-art of -cross-examination here. To them I fear I callsay nothing of novelty, or possibly of interest . Hence,,so far as they are concerned,, it is a case of my bring-ing coals to Newcastle .

My justification, if I -can have any, must be that 7Cstill have a most vivid recollection of my own embark-ation upon'the sea of advocacy, a sea in which crossexamination stood out as a dangerous and unchartedreef. Painful recollections of the dangers of that reef'then excited in me a curiosity and an interest in the ,subject which have directed my observations eversince .

The conclusion which I have come to as- a resultof those observations is that it is only one in ever somany lawyers anywhere who has any well defined idea,of the purpose and scope of cross-examination.

It isnot so much, perhaps, that they are not interested, asthat they do not know where to look for the learning,or, more often, that there is any. I am not vain enoughto believe that I can impart that learning,, though itwould be a matter of very great satisfaction to me ifI could say anything which might help to point theway.

The prevailing lack of understanding on this sub-ject is, I think, mainly due to our form of legal educa-tion.

The law student's time is taken up in abssorbingthe substantive, as distinguished from the adjectiveside of the law. His attention is intensively directedto the main fields of contracts, real property, torts,:

Address delivered before the Manitoba Bar Association,February 6th, 1923 .

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and equity, so that he has little time left to penetrateinto the byways of practice, and evidence and advocacy .Hence he is prone to be primarily interested in rightsand liabilities, and only to become secondarily im-pressed with the importance of knowing how to enforcethem. This perhaps is inevitable, having regard tothe large and increasing proportion which substan-tive bears to adjective law .

The young lawyer's attitude in this respect is, Ithink, also due in some considerable degree to the con-stantly increasing practice of holding trials withouta jury.

In former days, when the issues of fact con--stantly rested upon the findings of a jury, the law-yer's incentive to a close -study of the art of cross-examination for general use was most compelling,since, upon its effective application might possiblyhang the final success or failure of his case.

In thesetimes, however, with only a judge to go before, in thevast majority of cases, I have been led to suspect thatlawyers are disposed to take chances in making theircross-examinations and even to trust to luck that thejudge will help them out of difficult situations intowhich they may lead themselves by their want of skill .This may be a flattering tribute to the disposition andcapacity of the judge., but it is a hopeless way todevelop an aptitude for cross-examination.

To lawyers so, trained, cross-examiners, like poetsand painters, are born and not made. They seem tothink that unless nature has been good enough to endowone with the necessary aptitude it is futile to attemptit ; that there is such a thing as aptitude for cross-examination and that such aptitude differs much withdifferent individuals is undoubtedly true. I haveoften thought that the members of a large family haveperhaps a better chance of developing aptitude forcross-examination than others, on account of the con-stantly recurring quips and banter, and the close ques-tioning into the reasons for each other's conductwhich goes on unrestrainedly around the home fromtime to time throughout the day.

Occasionally, indeed, you find a man of such unusualnatural endowments that he can afford to disregardthe usually accepted principles of cross-examination .Such a man when at the bar was the late Sir CharlesRussell, afterwards Lord Russell of Killowen. Youwho have read his life by Barry O'Brien will recallthat Russell could never see merit in what he termedthe so-called rules of cross-examination . He main-tained -that there was too much subterfuge about them,and that he usually got what he wanted by goingstraight at the witness . 'This was a method of hisown which seldom failed of success, in practice; butthat success was due not to any fallacy in the ruleswhich he deprecated, -but to his substituting in theirplace his compelling personality . When he hardenedhis voice with an Ulster ring, and focussed his pene-trating eyes under their bushy brows upon a witness,that unfortunate is reported to have usually actedvery much - like the rabbit who has strayed within theorbit of the serpent's constraining gaze . All disposi-tion to equivocate or to mislead, if he ever had any,would quickly leave him, and he would ask no furtherprivilege than to be allowed to tell the plain, unvar-nished truth .

Russell's great success made his unconventionalmethod the model of his day for budding cross-examiners .

Hence one beheld the youthful barristersof England raising their modulated voices, and con-tracting their unfurrotived brows in a hopeless effortto simulate him. It was a much happier day for themwhen Russell passed -on, and Sir Rufus Isaacs ledin his place . Sir Rfufus is reported to have de-lighted to resort comprehensively to all the conven-tional rules of cross-examination . The result was thathe enhanced greatly his naturally pleasing person-ality. He employed them with what was known as thesmiling style . $y these means he put himself on goodterms with the- -witness ; who was glad to tell such a'nice man all he knew, which he generally did be-forehe knew it . This process for the time being was as

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pleasing to the witness as Russell's had been painful,and it was, of course, the very apex of good advocacy .

While speaking of personality I may say that a-counsel not infrequently develops some pervadingIdea of his own in regard to cross-examination, someidea which he has learned by repeated experience tobe a key to the explanation of much adverse testimony .Thus, if you happened to be near the late Mr. B. B. Oslerwhen lie was listening to a witness whom he was pre-paring to cross-examine, you would probably hear himmutter to himself, "He has learned it off by heart ; hehas learned it off by heart."

The idea which had cometo prevail in his mind, and which consequently roseuppermost in such circumstances, was that witnessesseldom confine their tostiniony to what they haveactually seen or heard, but that when they knowthey are going to be called to give evidence, they talkthe matter over with some one and try to imagine whattook place. Then they come and give the Court, not.merely their actual recollections, but the fruits of theirimaginations . Perhaps if any of you have made aliabit of following the process of an ordinary witness'smind, you may conclude that Mr. Osler was not so veryfar wrong.

But while these great men had exceptional naturalendowments, and while there is no doubt whatever thatsuch aptitude counts, it is not the sine qua non of thecross-examiner, as so many seem to think. My con-tention is that aptitude may be developed, and that anylawyer of average ability, by thoughtful attention to astudy of the art, can become an efficient cross-examiner .By an efficient cross-examiner, I mean that lie can makehis cross-examination yield all the benefits to his casewhich any reasonable client has a right to expect . Hecan do this by combining the learning of books Withhis practice in the Courts.

Regarding the learning in the books, very few law-yers seem to know that there is any . As a matter offact, there is quite a literature on cross-examination .Beginning with the classic of the Roman, Quintilian,

you will find in his Institutes, Book 5, chapter 7, astatement of principles as good to-day as they werewhen he wrote them nearly two thousand years ago.If the Latin proves too much for you, you will find an,excellent. translation and discussion in the third volumeof Chitty's Practice of the Law; published in 1842.Coming to more recent times, we find . in England thefirst analytical work on the subject in "The Advocate ;His Training, Practice, Rights and Duties," publishedby Mr. Sergeant Edward Cox in the year 1852. Thisbook has formed the basis of many subsequent workson the subject. 'Then in 1879 "Hints on Advocacy"was published by the late Richard Harris, a bookwhich has gone through numerous editions since itsfirst appearance . Also "Illustrations in Advocacy,"by the same author, of which the 5th -edition came outin 1915. And later still, "Examination of Witnessesin Court," published by Frederick J. Wrottesley, in1910.

Then in America we find "Tact in Court," byJudge Donovan, of Detroit, -of which the 4th editionwas published in 1889 ; "Forensic Oratory," pub-lished by Professor Williann C. Robinson, of YaleUniversity in 1893-this is probably the most scientificwork on the subject ; and later still "The Art ofCross=examintion," published in 1904 by Francis C .Wellman, of the New York Bar. But the best book ofall on the subject, to my mind, because it is particu-larly suited to the conditions of practice in this coun-try, is "The Conduct of Law Sluts," published in 1885by the late John C. Reed,, a member of -the Georgia Bar.A second edition of this work was published in 1912 andedited by Professor Wigmore, who, in his preface, saysthat he hasmade no changes in the first edition, since inhis opinion it constituted a perfect work.

Excellentsummaries on the subject are also to be, found in Phip-son on Evidence and Wigmore on Evidence, and ifyou would like to study the famous examples ofcross-examination in practice, you can read Lordrougham's and Sergeant Williams' cross-examina-

tions in Queen Caroline's, case, that of Sir Henry


564


Hawkins in the Tichborne case, and those of SirCharles Russell in the Parnell case against the Tivies .

But, as I intimated before, one cannot become across-examiner simply by reading books and cases,any more than he can learn to swim by going throughthe motions on the kitchen table . He must proceedby a process of reading and practice, reading andpractice, always trying to keep his reading ahead ofhis practice .

His reading should be for the purposeof acquiring and assimilating the experiences of others,while his practice should be designed for extendinghis own experience, his own observations and his ownknowledge of human nature . The power to apply whathe reads may not always come easily . Sometimes awitness may frustrate him when he knows, or thinks,he should not do so.

He keeps on wondering what hemight have done to prevent this, and one of thesetimes, more likely than not, when he has almost givenit up, he will awaken to realize that that must havebeen one of the cases when so-and-so did so-and-so, orwhen so-and-so says that you should do so-and-so .Having thus found one after another the proper appli-cation of the principles in practice, they graduallybecome a part of himself, and so are happily his forall time.

One thing a lawyer has to get rid of, and that is thepopular notion of the function of cross-examination .The multitude, with its love of the spectacular, conceives it to be designed to involve every witness in glar-ing inconsistencies and palpable self-contradictions,that it is, in short, to " turn him inside out," and showhim up as a perjured villain. I recall particularly oneKing's Counsel of 'a former generation whose cross-examinations were always conducted with a volubil-ity and a vituperative noise which split the ears of thegroundlings ; he was consequently held by them inhigh regard as a great cross-examiner. Nothing, how-ever, was farther from the truth, since no one so con-sistently proved lli.s adversary's case instead of hisown, or otherwise had a greater ignorance of the cardi-nal principles of cross-examination .

If, in making his disastrous cross-examinations,my friend, this King's Counsel, had been a little lesssusceptible to the plaudits of the crowd, . and a littlemore susceptible to improvement, he should have satdown with a depressed rather than a confident air .ad he -done so there might have been some hope for

him ; it might have driven him to sight the reefs uponwhich he had so often rent his forensic barque ; hemight have discerned their dangers from afar ; hemight have remarked that it is not wise in cross-examination, any more than in some other things, tofollow the line of least resistance ; he might haveevolved and laid to heart that fundamental precept ofall real cross-examiners,, that it is not upon what youdo, but upon what you do not do, that safety and suc-cess more often in the first place depend. He shouldhave learned not to start in by taking a witness againover his examination-in-chief, when, facilitated by hisown privilege of asking leading questions, he mightcause the witness to state new facts against him, orto state in a more potent and destructive form factswhich the witness had already given in chief. Heshould have learned to take pause and to desist beforehe asked questions ;the answers to which might proveconclusively adverse to his case. He should havelearned not to cross-examine upon new matter whichhis adversary might develop against him on re-examination, but which must remain -forever closedagainst that same adversary were it not so opened.

This King's Counsel's experiences remind me of astory which was told me by a Philadelphia lawyer,who said that he had got it one day when he was inWashington and happened upon a group of lawyersenators who were discussing the dangers of cross-examination . One of them said he had started prac-tice in Indiana, and his first criminal defence was thatof a farm laborer who was charged with unlau=fullywounding his employer. It seems that the accusedand his employer had gone out to a field with sickles

c.B.R-voL. z.-37

CROSS-EXAMINATION . 565

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to cut standing corn . After working for awhile theygot into an altercation, anal, dropping their sickles,proceeded to fight . A clineIn followed, in which theaccused threw his employer to the ground, and whenthe latter got up his right ear was badly lacerated anda bit of it was missing, hence the charge .

The young advocate conceived the bright andwholly commendable idea that the complainant in fall-ing had struck his ear on the sharp stubs of the cornstalks which had been cut, and which projected frontthe ground. ''o lie decided to adopt this explanationas the theory of his client's defence . The complainantgave his evidence in chief quietly and without sign ofvindictiveness ; he simply said that lie and the accusedhad got into a fight, and that the accused had hurt hisear . The prospect looked most encouraging, so theyoung advocate started in .

"You were cutting corn when this thing hap-pened" "Yes."

"There were a good many corn stubs standingin the ground around?" "Yes ."

"Those corn stubs were very sharp and bard?"`Yes, "

"In fact, if, when falling, you lead struck one ofthose corn stubs, it might have hurt your ear?"Yes.""Well, now, will you tell me how you know it

was not one of those corn stubs that did hurt yourear?"

" Well," says the complainant, "I know,because when I was getting up I saw the accusedopen his mouth and spit that bit of my ear on theground."AZv informant said that the vividness with which

the Senator told his story showed its lesson had notbeen lost on him.

How often one sees counsel hanging on every wordof his opponent's cross-examination, watching and'nilginl for an opening which will let him get somechoice bit in, usually a conversation . Counsel for thedefendant, say, without looking ahead, asks a witness

Cross-EYAMÎ1`ATIÔ\T .

567

for the plaintiff if he didn't have a conversation withthe plaintiff on a certain occasion. The witness saysyes . "Counsel then asks him something which was saidin the-eCurse of such conversation. The witness statesit. The statement is often of little or no importance,and counsel passes on. This is probably the very open-ing which the plaintiff's counsel has been looking for.He has been unable to refer to this conversation 'on hisexamination-in-chief because the defendant was notpresent at it . ®n re-examination, however, he canask the witness all about it, and will probably bringout something which will so go to confirm the plain-tiff's testimony as to enable him to sustain the onusof proof, with the result that the defendant may losehis case.

This seems such an obvious danger when so stated,and yet it is encouraged by counsel far too often. Toavoid such dangers the only safe attitude of mind forthe cross-examiner to adopt is, not merely how muchgood is this inquiry going to do me, but how muchharm may possibly follow .

It may be remarked that the dangers of cross-examination are not always exemplified by a witnesswho happens to be an astute man of affairs, but justas often by the young and inexperienced . You mayhave seen an incident published by one of the news-papers which illustrates this . A boy of ten years ofage was being cross-examined lay counsel who ques-tioned him in this wise

"Have you any occupation?" "No." -

" Don't you do any work of any kind?" " No.""Just loaf around?" "That's about all.""What ;does your father do?" "Nothing

much. I I

"Doesn't he do anything to support the fam-ily?" "He does odd jobs once in a while when he-can get them." I

"As a matter of fact; isn't your father a worth-less fellow?" "I don't know, sir, you had betterask him .

He is sitting over_ there on the fury."

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Having touched on some of the dangers to beavoided, what then, are the cross-examiner's properobjectives? First and foremost, not to begin byendeavouring to impair the credibility of the opposingwitnesses, but to try and use them to establish thefoundations of his own case. This cardinal principlewas first emphasized by Mr. Sergeant Scarlett, after-wards Lord Abinger, one of the greatest advocatesof all time, who says in his "Autobiography," "Icross-examined in general very little, and more witha. view to enforce the facts which I meant to rely on,than to affect the witness's credit, for the most part avain attempt." Mr. Sergeant Ballantine, in his"Experiences," speaks to the same effect . He says,

"The object of cross-examination is not to pro-duce startling effects, but to elicit facts which willsupport the theory intended to be put forward."

I have been making a habit of watching the appli-cation of this principle from the vantage point ofthe Bench, and my conclusion is that counsel whoemploy it make ground many times for every oncethey do when they proceed by attacking the credibil-ity of the witnesses . One signal advantage of thismethod is that the cross-examiner does not have toshatter his adversary's case, but, by taking it so faras it goes, and by adding something more to it, by wayof explanation or qualification, he may successfullyavoid the consequences of it . Another advantage ofit is that it helps to preclude your adversary fromattacking the foundations of your own conclusions,since those foundations lie within the evidence givenby his own witnesses .

As a result of pursuing this objective where pos-sible, counsel should, at. the conclusion of his cross-examination of the opposing witnesses, have a mentalpicture of the position of his own case as that of theconcrete footings for a new building with rods pro-jecting upon which may be imposed and perfectly fittedtho superstructure of his own proofs .

CROSS-EXAMINATION. - 569

The second objective of the cross-examiner shouldbe to disclose the unreliability of the adverse wit-nesses in those cases in , which the Court cannot makeits findings without determining who are trustworthyand who are not . This does not necessarily mean, asso many seem to think, that some of the witnessesare lying. The number of cases in which witnessesdeliberately tell what they know to be untrue- is com-paratively small . It means rather that these wit-nesses are mistaken . In order to detect such mistakes,it is well to view the adverse witnesses objectively, asso many instruments of evidence or human documents,capable of receiving, retaining, -and giving off impres-sions; much more fallible and less reliable than ordi-nary documents, . it is true, but none the less capable ofbeing read with a fair degree of accuracy by one whopossesses some insight into the operation of the physi-cal senses, and has some understanding of humannature. Viewing adverse witnesses, then, as so manyhuman documents, how do they receive their impres-sions? Ordinary documents receive theirs throughthe medium ~of pen or pencil ; the witness receiveshis through his physical senses . Here, then, may bethe first opening for an attack upon his reliability .What was the condition of his physical senses at thetime about which he testifies? That the defective opera-tion of the physical senses may effectually preventa witness from acquiring exact impressions of anaction or event is self-evident. Every witness there-fore who professes to have seen or heard or otherwiseto have had physical apprehension of an object maywell be doubted until the soundness of the senseemployed has been established.

Again, what previous preparation or training hasthe human document had to enable him to take impres-sions of the things -about which he has assumed to testify? Ordinary documents require preparation ofmaterial or surface to be ready for pen or pencil.Likewise a witness requires some previous familiarityor acquaintance with the object which he apprehends

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or with the class of objects to which it belongs, or hisimpressions are likely to be vague and unreliable. Sucha previous familiarity or acquaintance, therefore,determines in no small degree the measure and char-acter of the witness's impressions . Hence in everyinquiry concerning past events, the ignorance or inex-perience of the witness is a most important elemeiit .

Once more ; what use has the human document madeof his physical senses to enable him to acquire exactimpressions of the things about which he has assuniedto testify? Pens and pencils require to be kept sharpand to be properly- supplied with ink and lead, i n orderto make clear and legible impressions . So also the wit-ness must have paid sharp attention to all that wasgoing on about him, or his impressions will be hidis-tinct and fragmentary, and so unreliable . The degreeof intellectual attention with `Which each witness hasregarded the objects about which lie testifies is there-fore another element to be considered in deteriiiiningthe accuracy with which lie observed them.

Yet, again, what is the capacity of the humandocument to retain the impressions which he hasreceived? The ink or lead upon ordinary -documentsmay become blurred, or fade away with lapse of time ;so may the witness's impressions, unless he happen tonave a good and faithful memory.

And finally, what is the ability of the human docu-ment to give off the iinpressions which he has receivedand still retains! From ordinary- documents, inscribedwith pen or pencil, may be taken impressions by Way ofletterpress, or carbon copies . A witness gives off hisimpressions through his powers of verbal expression .His reliability, therefore, as a source of knowledge, isalso marked by his power of expressing accurately andintelligibly the ideas which he has received and stillretains .

At the risk of being thought tedious, I have consid-ered these several possible openings for an attack uponthe reliability of the adverse witnesses, because I havefound diem to be of great. service to keep them before

CROSS-EXAMINATION . elrhl.

me in practice.

They were first suggested to me soonafter I was called to the Bar by a counsel who was amost able cross-examiner . He was good enough to askme how I was getting on, and I told him that on 'cross-examination I found it hard to know what to ask about.He then said, "You know, of course, that each witnessupon his examination-in-chief is supposed to testify towhaf he has actually seen or heard? Well," he says,"perh-aps if you learn all you can about the witness andstudy him while he is being examined in chief you mayfind that he has something wrong with his sight orhearing, so that he could not see or hear that to whichhe has testified and then you can cross-exanvine himto show that.

Or. if his sight and hearing were with-out defect, perhaps he didn't know enough to under-stand what he saw or heard.

Or, if he saw or heardand understood, perhaps he' was not paying attentionto what was going on. Or, if he saw or heard andunderstood and was paying attention, perhaps he can-not rightly remember what he saw or heard.

Or,. if hesaw -or heard and understood and was paying attentionand can remember, perhaps he cannot p'rope'rly expresswhat he saw or heard. Thus," he says, "you havefive successive chances to impair the witnesss',s relia-bility, and. he must be a good witness indeed fromwhom you cannot obtain by cross-examination someadvantage out of at least one chance in the five .

Andthen," he says,

"after you have disposed of those five chances,there is still left ~to you a chance to demonstratethat the witness's evidence is influenced by impro-per motives, and after that, another chance to showthat he is warped by bias or partiality."

So when I left this good friend I had a grasp ofseven trusty arrows in my cross-examining quiverwhich I did not have before. After that I used tomake a habit of inserting at the head -of my notes to abrief the words, "senses," "knowledge," ",attention,""memory," "expression," "motives," and "bias,"

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until I was mentally able to observe and to direct myinquiry into these matters automatically and withoutfear of oversight . Such matters may never safely beconsidered of casual importance which by cross-exaill-ination can co often be made material to success.

The third and last objective of the cross-examineris to discredit those witnesses whose statements forcehim to the conclusion that they are lying.

This, whilethe most unimportant branch of the subject, is themost complex and often the most difficult, because thecross-examiner is contending with intentional, as dis-tinguished from unintentional, error, and so is oper-ating against the witness's will .

The witness who is unable or indisposed to tell thetruth fails, of course, in the most essential attribute ofcredibility, and from the moment that this faultbecomes apparent to the tribunal, its confidence in himand in his testimony is at an end. Such witnesses arecommonly said to resolve themselves into three classes .Thus, we hear of innocent liars, and careless liars, andwilful liars, and in recent years, a fourth class hasjocularly been added under the title of expert witnesses .Time will not suffice for me to discuss within the com-pass of this address the method by which these variousclasses of liars may best be baffled and exposed .Enough for me to say now that it is mainly to be doneby strategy ; a strategy which is most easily evolvedby the lawyer who has a comprehensive knowledge ofhuman nature, an intelligent understanding of mentalprocesses, and a clear insight into the motives whichimpel human action.

As the possession of these quali-ties depends to a considerable extent upon the disposi-tion and acumen of the lawyer, his success in attainingthis objective depends more than in the others -uponhis natural aptitude, but even here much good workmay be done as the result of study and practice .

Speaking of strategy reminds me of an illustra-tion to be found in Mr. Wellman's book, which most ofyou have probably read.

It was the case of a laboringman who brought an action against a traction company

CROSS-EXAMINATION . 573

for personal injuries. In giving his evidence in chiefthe plaintiff claimed that his right shoulder had beenso seriously dislocated thathe could not raise his armhigher than its level . Counsel far :the defendant com-menced by asking him some personal questions of asympathetic nature, -and having put himself on goodterms with the witness, he then said, "Will you showthe Court and the fury how high you have been able toraise your, right arm since the -accident?"

With anappearance -of much pain and effort, the witness raisedthe arm barely to the level of his right shoulder . Hav-ing- made this demonstration, counsel then asked himto show how high, using the same arm, he had been ableto raise it before the accident . Whereupon, to theintense enjoyment of all-present, save his own counsel,the witness promptly and freely extended his right -armperpendicularly to its full length above his head.

In the brief sketch which I have given, I hope thatI have at least made it clear that cross-examinationis not such a matter of hit and miss, or of luck, as somany lawyers seem to think; that there are certainprinciples, based upon definite and intelligible objec-tives, underlying it ; and that to the lawyer even with-out original aptitude, -who pursues the application ofthese principles in practice, aptitude may come, andwith it a reasonable measure of success .

What I have ,said will show that such an aptitudecannot be won without sustained effort. It is just herethat the lawyer who thinks that the cross-examiner'sskill is heaven-born, makes his first fundamental mis-take. He- may occasionally stray into a court room toobserve some counsel establishing his case by his skil-ful cross-examination of the opposing witnesses . Tothe lawyer who thinks he cannot learn to do this him-self, it all seems so easy for the counsel that he comesto think that there must be some divine afflatus whichdescends upon counsel as he rises to his task andinspires him with his seemingly lucky questions . Whatsuch a lawyer fails to realize is that he is beholdingonly the ripened fruits of careful study and thorough

J(4


preparation ; a study and preparation which, by repeti-tion, have become a habit, until in course of time coun-sel pursues them as unfailingly as he does any otherprocess necessary to the proper submission of his case .Here then, as in all other phases of litigation, prepar-ation is nine points of success.

The part which preparation has to do with success-ful cross-examination is well emphasized by anacknowledged master of the art, the late Mr. E . F. B.Johnston, in an address which he gave to the OntarioBar Association in April, 1910. To my mind it is themost admirable part of a wholly instructive address .You will find it in 30 Canad-ia-v. Laic Times, 1910, atpage 403 . Mr. Johnston there says

"The only wad- you can reach the true object ofa cross-examiner is to ascertain from your witnessthe correctness, not of the fact deposed to, but theabsolute correctness, if you can, of the impressionsfrolu which he draws his conclusion of fact .

Now,this means what'!

It means a great deal more thanmany of us very often pay attention to, and I shalltry and explain it .

"It means the most careful preparation-a manwill prepare the heads of his speech to a jury, hewill often be rash enough to prepare the heads ofan address to the Member.; of the Ontario BarAssociation-but few people, I venture to say, sitdown and spend an hour, or two hours, or a day,if necessary, summarizing and considering whatmethod he should adopt with a particular -Avitnessin a particular case. The only way in which a mancan ever hope to be a successful cross-examiner isto prepare, and not wait until the moment, ex-pecting favorable circumstances which will ariseoccasionally . I look upon the preparation forcross-examination as being infinitely more import-ant, if there is a serious dispute about the facts,than the preparation of a brief . . . .

"In these days, of course, we all know prettywell what is coming on at a trial .

We have our dis-


covery ; we have our witnesses ; we all know whatline the man is going to take. 1f a counsel willonly devote himself to it, and will spend an hour ortwo, or a day, if necessary, to prepare his methodof the cross-examination of that particular person,he will find that in every case he has accomplishedinfinitely more than he could possibly do, no mat-ter how crafty he may be, by trusting to the spurof the moment. ,,

But .apart from the . object of professional success,there are other reasons which may well appeal to themind of the, Canadian lawyer and incite him to endeavour to develop an aptitude for effective cross-examination . Thus cross-examination is essentially,in its origin and development, a product of our goodold common law. The Common-Law -Commissionersof 1853, -a body which included the eminent legal namesof Jervis and Cockburn, of Martin, Bramwell, andWilles, declared that the circumstances which gave toEnglish procedure its characteristic merits, wereviva voce interrogation, cross-examination, publicity,and examination in .the presence of the Tribunal, whileaccording to Bentham, if we omit political considera-tions of broader range, cross-examination, and not trialby jury, is the great and permanent contribution ofAngle-Saxon jurisprudence to the best methods of trialprocedure.

Another,eminent jurist has said that cross-examina-tion is the most powerful instrument yet devised forthe ascertainment of the truth ; and if we but contrastits efficiency in this respect with the affidavits and thedepositions which were the only instruments known tothe civilians for arriving at the facts, we must realizehow much truth there is in this statement, and howuncertain not -to say hopeless would be our task ofdetermining the facts without it .

Fortunately, cross-examination is an instrumentwhich no one has yet sought to abolish ; a reflectionwhich may afford us some comfort in these days when

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TxE ekNADIA- BAR REVIEW .

one beholds attacks upon so many of our establishedlegal institutions. Such immunity is the more remark-able since the occasional abuse of the right to cross-examine is, I daresay, almost universally known,though, happily, such occasions nowadays are few andfar between. What then, is the reason for such immun-ity? It is, I believe, because the efficacy of cross-examination as a trusty weapon against the omissions,the errors and the false statements, of the accusing orhostile witness is recognized by all, no matter howignorant or unthinking ; an efficacy whose loss none ofHis Majesty's subjects can contemplate without anapprehension which must far outweigh the fear of anyinjury likely to arise by reason of its occasional abuse. .

cross-examination. 559l~ cross-examination

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