7. It is, however, the evidence that gives the
greatest trouble to advocates. Evidence may be
given either in writing or orally by witnesses present
in court. Documentary evidence is easier to dispose
of. For it is likely that the deponent was less
ashamed of himself in the presence of a small
number of witnesses, and his absence from court is
attacked as indicating a lack of confidence. If we
cannot call the character of the deponent in question,
we may attack the witnesses to his signature.
[
2]
Further there is always a certain tacit prejudice
against documentary evidence, since no one can be
forced to give such evidence save of his own free will,
whereby he shows that he harbours unfriendly feelings towards the person against whom he bears
[p. 171]
witness. On the other hand an advocate should be
chary of denying that a friend may give true
evidence against a friend or an enemy against an
enemy, provided they are persons of unimpeachable
credit. But the subject admits of copious discussion, from whichever side it be regarded.
[
3]
The task of dealing with the evidence of witnesses
present in court is, however, one of great difficulty,
and consequently whether defending or impugning
them the orator employs a twofold armoury in the
shape of a set speech and examination.
1 In set
speeches it is usual to begin with observations either
on behalf of or against witnesses in general.
[
4]
In so
doing we introduce a commonplace, since one side
will contend that there can be no stronger proof than
that which rests on human knowledge, while the
other, in order to detract from their credibility, will
enumerate all the methods by which false evidence
is usually given.
[
5]
The next procedure is the common
practice of making a special attack, which all the
same involves impugning the validity of evidence
given by large numbers of persons. We know, for
instance, that the evidence of entire nations
2 and
whole classes of evidence have been disposed of by
advocates. For example, in the case of hearsay
evidence, it will be urged that those who produce
such evidence are not really witnesses, but are
merely reporting the words of unsworn persons, while
in cases of extortion, those who swear that they paid
certain sums to the accused are to be regarded not
as witnesses, but as parties to the suit.
[
6]
Sometimes
however the advocate will direct his speech against
single individuals. Such a form of attack may be
found in many speeches, sometimes embedded in
[p. 173]
the speech for the defence and sometimes published
separately like the speech against the evidence of
Vatinius.
3
[
7]
The whole subject, therefore, demands a
thorough investigation, as the task which we have
in hand is the complete education of an orator.
Otherwise the two books written on this subject by
Domitius Afer would suffice. I attended his lectures
when he was old and I was young, and consequently
have the advantage not merely of having read his
book, but of having heard most of his views from
his own lips. He very justly lays down the rule that
in this connexion it is the first duty of an orator to
make himself thoroughly acquainted with the case,
a remark which of course applies to all portions of
a speech.
[
8]
How such knowledge may be acquired I
shall explain when I come to the appropriate portion
of this work.
4 This knowledge will suggest material
for the examination and will supply weapons ready
to the speaker's hand: it will also indicate to him
the points for which the judge's mind must be
prepared in the set speech. For it is by the set speech
that the credit of witnesses should be established
or demolished, since the effect of evidence on the
individual judge depends on the extent to which he
has been previously influenced in the direction of
believing the witness or the reverse.
And since there are two classes of witnesses
5
[
9]
those who testify of their own free will and those
who are summoned to attend in the public courts of
whom the former are available to either party, the
latter solely to the accusers, we must distinguish
between the duties of the advocate who produces
witnesses and the advocate who refutes them.
[
10]
He who produces a voluntary witness is in a
[p. 175]
position to know what he is likely to say: consequently the task of examining him would seem to
be rendered easier. But even here such cases make
a great demand on the acumen and watchfulness of
the advocate, who must see that his witness is neither
timid, inconsistent nor imprudent.
[
11]
For the opposing
counsel have a way of making a witness lose his head
or of leading him into some trap; and once a witness
trips, he does more harm to his own side than he
would have done good, had he retained his composure
and presence of mind. The advocate must therefore
put his witnesses through their paces thoroughly
in private before they appear in court and must
test them by a variety of questions such as may
well be put to them by his opponent. The result
will be that they will not contradict themselves
or, if they do make some slip, can be set upon
their feet again by a timely question from the advocate who produces them.
[
12]
Still, even in the case
of witnesses whose evidence is consistent, we must
be on our guard against treachery. For such
witnesses are often put up by one's opponent and,
after promising to say everything that will help our
case, give answers of exactly the opposite character
and carry more weight by the admission of facts
which tell against us than they would have done had
they disproved them.
[
13]
We must therefore discover
what motives they have for doing our opponent a hurt,
and the fact that they were once his enemies will
not suffice our purpose: we must find out whether
they have ceased to be ill-disposed to him or whether
they desire by means of their evidence to effect a
reconciliation with him, in order to assure ourselves that they have not been bribed or repented of
[p. 177]
their previous attitude and changed their purpose.
Such precautions are necessary even with witnesses
who know that what they propose to say is true;
but it is still more necessary with those who promise
to give false evidence.
[
14]
For experience shows that
they are more likely to repent of their purpose, their
promises are less to be relied on, and, if they do keep
their promise, their evidence is easier to refute.
[
15]
Witnesses appearing in answer to a subpoena may
be divided into two classes: those who desire to
harm the accused, and those who do not. The
accuser sometimes is aware of their disposition,
sometimes unaware. For the moment let us assume
that he is aware of their disposition, although I must
point out that in either case the utmost skill is required in their examination.
[
16]
For if an advocate is
producing a witness who is desirous of harming the
accused, he must avoid letting this desire become
apparent, and must not at once proceed to question
him on the point at issue. On the contrary this
point must be approached by a circuitous route in
such a manner as to make it seem that the statement which the witness is really desirous of making
has been forced from him. Again lie should not
press the witness too much, for fear he should impair
his credit by the glibness with which lie answers
every question, but should draw from him just so
much as may seem reasonable to elicit from a single
witness.
[
17]
On the other hand in the case of a witness
who is reluctant to tell the truth, the essential for
successful examination is to extort the truth against
his will This can only be done by putting questions
which have all the appearance of irrelevance.
If this he done, he will give replies which he
[p. 179]
thinks can do no harm to the party which he
favours, and subsequently will be led on from the
admissions which he has made to a position which
renders it impossible for him to deny the truth of
the facts which he is reluctant to state.
[
18]
For just as
in a set speech we usually collect detached arguments which in themselves seem innocuous to the
accused, but taken together prove the case against
him, so we must ask the reluctant witness a number
of questions relative to acts antecedent or subsequent
to the case, places, dates, persons, etcetera, with a
view to luring him into some reply which will force
him to make the admissions which we desire or to
contradict his previous evidence.
[
19]
If this fails, we
must content ourselves with making it clear that he
is reluctant to tell what he knows, and lead him
with a view to tripping him up on some point or
other, even though it be irrelevant to the case; we
must also keep him in the witness-box for an unusual
length of time, so that by saying everything that can
be said and more than is necessary on behalf of the
accused, he may be rendered suspect to the judge.
Thus he will do the accused no less harm than if he
had told the truth against him.
[
20]
But if (to proceed to
our second supposition) the advocate does not know
what the intentions of the witness may be, he must
advance gradually inch by inch and sound him by
examination and lead him step by step to the particular reply which it is desired to elicit.
[
21]
But since
these witnesses are sometimes so artful that their
first replies are designed to meet the wishes of the
questioner, in order to win all the greater credit
when subsequently they answer in a very different
way, it will be the duty of the advocate to dismiss
[p. 181]
a suspect witness while he can still do so with
advantage.
[
22]
In the case of advocates for the defence examination is in some respects easier, in some more
difficult. It is more difficult because it is rarely
possible for them to have any previous knowledge of
what the witness is likely to say, and easier because,
when they come to cross-examine, they know what
he has already said.
[
23]
Consequently in view of the
uncertainty involved, there is need for careful inquiry with a view to discovering the character of the
witness against the accused and what are his motives
for hostility and what its extent: and all such points
about the witness should be set forth in advance
and disposed of, whether we desire to represent the
evidence against the accused as instigated by hatred,
envy, bribery or influence. Further, if our opponents
bring forward only a small number of witnesses, we
must attack them on that head; if on the other
hand they produce an excessive number, we must
accuse them of conspiracy: if the witnesses are
persons of inconspicuous rank, we must minimise
their importance, while if they are powerful, we shall
accuse our adversaries of bringing undue influence to
bear.
[
24]
It will, however, be still more helpful if we
expose the motives which they have for desiring to
injure the accused, and these will vary according to
the nature of the case and the parties concerned.
For the other lines of argument mentioned above
are often answered by the employment of commonplaces on similar lines, since the prosecutor, if he
produce but few witnesses of inconspicuous rank, can
parade the simple honesty of his methods on the
ground that he has produced none save those who
[p. 183]
are in a position to know the real facts, while if he
produce a number of distinguished witnesses, it is
even easier to commend them to the court.
[
25]
But at
times, just as we have to praise individual witnesses,
so we may have to demolish them, whether their
evidence has been given in documentary form or they
have been summoned to appear in person. This was
easier and of more frequent occurrence in the days
when the examination of the witnesses was not
deferred till after the conclusion of the pleading.
6
With regard to what we should say against individual
witnesses, no general rules can be laid down: it will
depend on the personality of the witness.
[
26]
It remains to consider the technique to be followed
in the examination of witnesses. The first essential
is to know your witness. For a timid witness may
be terrorised, a fool outwitted, an irascible man
provoked, and vanity flattered. The shrewd and
self-possessed witness, on the other hand, must be
dismissed at once as being malicious and obstinate;
or refuted, not by cross-examination, but by a brief
speech from the counsel for the defence; or may be
put out of countenance by some jest, if a favourable
opportunity presents itself; or, if his past life admits
of criticism, his credit may be overthrown by the
scandalous charges which can be brought against him.
[
27]
It has been found advantageous at times when confronted with an honest and respectable witness to
refrain from pressing him hard, since it is often the
case that those who would have defended themselves
manfully against attack are mollified by courtesy.
But every question is either concerned with the
case itself or with something outside the case. As
regards the first type of question counsel for the
[p. 185]
defence may, by adopting a method which I have
already recommended for the prosecutor,
7 namely by
commencing his examination with questions of an
apparently irrelevant and innocent character and
then by comparing previous with subsequent replies,
frequently lead witnesses into such a position that
it becomes possible to extort useful admissions from
them against their will.
[
28]
The schools, it is true, give
no instruction either as to theory or practice in this
subject, and skill in examination comes rather
from natural talent or practice. If, however, I am
asked to point out a model for imitation, I can
recommend but one, namely that which may be
found in the dialogues of the Socratics and more
especially of Plato, in which the questions put are
so shrewd that although individually as a rule the
answers are perfectly satisfactory to the other side,
yet the questioner reaches the conclusion at which
he is aiming.
[
29]
Fortune sometimes is so kind that a
witness gives an answer involving some inconsistency,
while at times (and this is a more frequent occurrence)
one witness contradicts another. But acute examination methodically conducted will generally reach
the same result which is so often reached by chance.
[
30]
There are also a number of points strictly irrelevant
to the case on which questions may be put with
advantage. We may for example ask questions about
the past life of other witnesses or about the witness'
own character, with a view to discovering whether
they can be charged with some disgraceful conduct,
or degrading occupation, with friendship with the
prosecutor or hostility toward the accused, since
in replying to such questions they may say something which will help our cause or may be convicted
[p. 187]
of falsehood or of a desire to injure the accused.
But above all our examination must be circumspect,
[
31]
since a witness will often launch some smart repartee
in answering counsel for the defence and thereby
win marked favour from the audience in general.
Secondly, we must put our questions as far as possible
in the language of everyday speech that the witness,
who is often an uneducated man, may understand our
meaning, or at any rate may have no opportunity of
saying that he does not know what we mean, a
statement which is apt to prove highly disconcerting
to the examiner.
[
32]
I must however express the
strongest disapproval of the practice of sending a
suborned witness to sit on the benches of the opposing party, in order that on being called into the
witness-box from that quarter he may thereby do all
the more damage to the case for the accused by
speaking against the party with whose adherents he
was sitting or, while appearing to help him by his
testimony, deliberately giving his evidence in such
an extravagant and exaggerated manner, as not only
to detract from the credibility of his own statements, but to annul the advantage derived from
the evidence of those who were really helpful. I
mention this practice not with a view to encourage
it, but to secure its avoidance.
Documentary evidence is not frequently in conflict
with oral. Such a circumstance may be turned to
advantage by either side. For one party will rest
its case on the fact that the witness is speaking on
oath, the other on the unanimity of the signatories.
8
[
33]
Again there is often a conflict between the evidence
and the arguments. One party will argue that the
witnesses know the facts and are bound by the
[p. 189]
sanctity of their oath, while the arguments are
nought but ingenious juggling with the facts. The
other party will argue that witnesses are procured by
influence, fear, money, anger, hatred, friendship, or
bribery, whereas arguments are drawn from nature;
in giving his assent to the latter the judge is believing the voice of his own reason, in accepting the
former he is giving credence to another.
[
34]
Such
problems are common to a number of cases, and are
and will always be the subject of vehement debate.
Sometimes there are witnesses on both sides and the
question arises with regard to themselves as to which
are the more respectable in character, or with regard
to the case, which have given the more credible evidence, with regard to the parties to the case, which
has brought the greater influence to bear on the
witnesses.
[
35]
If to this kind of evidence anyone should
wish to add evidence of the sort known as supernatural, based on oracles, prophecies and omens, I
would remind him that there are two ways in which
these may be treated. There is the general method,
with regard to which there is an endless dispute
between the adherents of the Stoics and the Epicureans, as to whether the world is governed by providence. The other is special and is concerned with
particular departments of the art of divination, according as they may happen to affect the question at issue.
[
36]
For the credibility of oracles may be established
or destroyed in one way, and that of soothsayers,
augurs, diviners and astrologers in another, since
the two classes differ entirely in nature. Again the
task of establishing or demolishing such evidence as
the following will give the orator plenty to do; as
for example if certain words have been uttered under
[p. 191]
the influence of wine, in sleep or in a fit of madness,
or if information has been picked up from the mouths
of children, whom the one party will assert to be incapable of invention, while the other will assert that
they do not know what they are saying.
[
37]
The following method may not merely be used with great effect,
but may even be badly missed when it is not employed.
You gave me the money. Who counted it out?
Where did this occur and from what source did the money
come? You accuse me of poisoning. Where did I buy
the poison and from whom? What did I pay for it and
whom did I employ to administer it? Who was my
accomplice? Practically all these points are discussed
by Cicero in dealing with the charge of poisoning in
the
pro Cluentio.9 This concludes my observations
upon inartificial proofs. I have stated them as briefly
as I could.