lessness or oversight he may omit to mention some circumstances; he may think or fancy the circumstances he withholds are not material to a proper understanding of his story; indeed, he may think or fancy that his story will be best understood, if it be not loaded with matters which he views as redundant, but which nevertheless are essential to see the facts in their proper proportions and color. . . . Supposing, besides, the witness does not wish to speak the whole truth, it is obvious his wish will be promoted, by leaving him to tell his tale in his own way..

In the other method of obtaining a relation of facts, the one by question and answer, the object of the interrogator is, to get from the witness all he himself saw, heard, said, and did, excluding all hearsay, and other irrelevant matter. And the questions being framed with a view to this exclusion, if the witness confines himself strictly to the questions addressed to him, his answers will contain no hearsay nor other irrelevant matter. But as, according to this method, the witness's narrative consists solely of his answers to the questions put to him, this obvious inconvenience attends it, that if all the questions required to bring out the witness's whole story are not put to him, he may in his evidence leave out circumstances important to be known...

The basis of interrogation of a witness is something of which his examiner desires to be informed, and which he knows, thinks, assumes, or hopes, the witness will be able to tell him. There are two ways of questioning: one where the words made use of in the question suggest or prompt a particular answer, and which is called a leading question; the other, where the question does not so lead, but is put in general terms, without at all pointing to a particular reply. This may be called an open question; it is open to any answer. "Did not you see this?" or "Did not you hear that?" are leading questions. In them the person questioned is in a manner prompted to answer, he did see or hear this or that particular thing. "It is a good point of cunning for a man to shape the answer he would have in his own words and propositions: for it makes the other party stick the less." "Ye will, therefore (addressing Morris), please tell Mr. Justice Inglewood, whether we did not travel several miles together on the road, in consequence of your own anxious request and suggestion, reiterated once and again, baith on the evening that we were at Northallerton, and there declined by me, but afterward accepted, when I overtook ye on the road near Clobery Allers, and was prevailed on by you to resign my ain intentions of proceeding to Rothbury; and, for my misfortune, to accompany you on your proposed route. 'It's a melancholy truth,' answered Morris, holding down his head, as he gave this general assent to the long and leading question which Campbell put to him." Assuming that the person questioned honestly desires to speak the truth, and that his memory is not defective, a strong probability is that, whether the question be open or leading, he will return precisely the same answer to it.

Each kind of question has, however, its advantages and disadvantages. If the witness be dishonest, and there be connivance between him and his interrogator; or supposing the former honest, and the latter not to be so; it is plain that a leading question may tend to bring out the answer which the interrogator desires. And assuming that both the witness and the 2 Rob Roy.

1 Bacon's Essays: Of Cunning.

interrogator are honest, both wishing the truth to be spoken; here, if the witness remembers little or nothing, or if he be dull, or heedless, or be confused, or embarrassed by timidity or any other cause, there is danger that, if he is addressed by a leading question, he may, without thought or consideration, echo in his reply the words put in the question, and so fail to speak the truth.

An open question imposes on an honest witness the necessity of thought, a consideration of both the question and reply. It forces him to resort to, and, if need be, to ransack his memory, and obliges him to utter only what he remembers. On the other hand, it is very possible, in many cases probable, that from sickness, old age, or other cause, his memory may be so infirm that he cannot be brought to a correct answer, except by a leading question. All open questions, every question short of a leading one, may fail to quicken his memory, and bring him to express the fact of which he has knowledge. Nothing, for instance, is more common, than to forget a person's name, and, without hearing it again, to be quite unable to call it to mind. We constantly hear people say, "If I heard his name, I should know it directly." If the name be pronounced, the hearing of it refreshes the power of recollection, and the name is instantly remembered.

259. CHARLES C. MOORE. A Treatise on Facts, or the Weight and Value of Evidence. (1908. Vol. II, §§ 699, 814, etc.) ... Leading Questions. Lord Bacon said: "It is a good point of cunning for a man to shape the answer he would have in his own words, for it makes the other party stick the less." A leading question propounded to a witness may, by creating an inference in his mind, cause him to testify in accordance with the suggestion conveyed by the question; his answer may be "rather an echo to the question” than a genuine recollection of events, and in some cases may alone be inadequate to support a verdict or decree. Professor Kuhlmann gives the results of some laboratory experiments by Lipmann, and says they "leave no doubt that memory illusion is greater when the statements made are answers to particular questions, than when the statements are made spontaneously on the part of the subject without special questioning." In an article elsewhere cited Professor Claparède says: "In the giving of evidence suggestion plays a most important part. The simple fact of questioning a witness, of pressing him to answer, enormously increases the risk of errors in his evidence. The form of the question also influences the value of the reply that is made to it. Let us suppose, for instance, that some persons are questioned about the color of a certain dog. The replies are likely to be much more correct if we ask the witnesses, 'What is (was) the color of the dog?' than if we were to say to them, 'Was the dog white, or was it brown?' The question will be positively suggestive if we ask, 'Was the dog white?' To such a question the answer is probably of no value. In questioning witnesses that is to say, in pressing them and forcing their memory we may obtain, it is true, a much more extensive deposition than if we leave them free to answer spontaneously. Any advantage thus obtained, however, is problematical, since we lose in fidelity whatever we may gain in extent of information."

Leading questions do, however, often stimulate genuine recollection. But if counsel are permitted to so frame a question put to their own witness as

to suggest the answer desired, there is always imminent danger of getting before the jury the phrases and ideas not really those of the witness. Comparatively small weight, in any case, is due to testimony as to critical facts, elicited from a friendly witness under strenuous pressure of leading questions by counsel for the party on whose behalf he testifies.

260. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.) Assuming a Controverted Fact. A question which in part assumes the truth of a controverted fact may lead a witness to reply without taking care to specify that his answer is based on that assumption, and may thus commit him to an assertion of the assumed fact, though in fact he may not desire or be able to do so. This is obviously a danger to be prevented:

1888. Parnell Commission's Proceedings. 19th day, Times' Rep., pt. 5, p. 221; the "Times" having charged the Irish Land League with complicity in crime and outrage, a constable testifying to outrages was cross-examined by the opponents as to his partisan employment by the "Times" in procuring its evidence; Mr. Lockwood: "How long have you been engaged in getting up the case for 'The Times'?" Sir H. James: "What I object to is that Mr. Lockwood, without having any foundation for it, should ask the witness 'How long have you been engaged in getting up the case for 'The Times'?" Mr. Lockwood: "I will not argue with my learned friend as to the exact form of the question, but I submit that it is perfectly proper and regular. If the man has not been engaged in getting up the case for 'The Times,' he can say so;" Sir H. James: "I submit that my learned friend has no right to put this question without foundation. Counsel has no right to say 'When did you murder A. B.?' unless there is some foundation for the question. In this same way he has no right to ask 'How long have you been engaged in getting up this case?' for it assumes the fact." President Hannen: "I do not consider that Mr. Lockwood was entitled to put the question in that form and to assume that the witness has been employed by 'The Times.'" 2

261. FRANCIS L. WELLMAN.. Day in Court. (1910. p. 79.) The rule against leading questions (with few exceptions) is strictly adhered to, and very properly so. Some lawyers put the clearly inadmissible question which suggests the answer, and though it is ruled out, perhaps with a rebuke from the court, the witness nevertheless has caught the idea. This is disreputable practice. . . . Every advocate is in honor bound not to transgress the rule against "leading questions" when it really comes. to important matters.

But it is sometimes extremely difficult. Indeed, there are cases in which the Court, in its discretion, may permit him to ask leading questions in the interests of justice, so that important testimony may not be lost. Suppose, for instance, a witness is giving his memory of a long conversation he overheard between the parties to an action, and, as often happens, leaves out of his narrative perhaps what, in law, amounts to the most important part. In vain the advocate tries not to lead him. He asks, “Have you given all

forked" ques

1 [Adapted from the same author's Treatise on Evidence. (1905. Vol. I, § 771.)] 2 The following anecdote neatly illustrates this trick of a "loaded" or tion: "Sir Frank Lockwood was once engaged in a case in which Sir Charles Russell (the late Lord Chief Justice of England) was the opposing counsel. Sir Charles was trying to browbeat a witness into giving a direct answer, 'Yes,' or 'No.' 'You can answer any question yes or no,' declared Sir Charles. 'Oh, can you?' retorted Lockwood. 'May I ask if you have left off beating your wife?'" (Green Bag, Vol. XII, p. 671.)

the conversation?" "Was that all that was said?" The witness remembers no more. The memory of the witness had been exhausted by direct questions, and then the Court may properly permit him to lead the witness so far as to ask the witness whether anything was said about so and so (without suggesting what was said), and thus call his attention to the matter which the witness had inadvertently overlooked, and thus save very important testimony which should otherwise be lost.

So, too, when it is discovered that a witness is hostile, the Court, as already intimated, may permit leading questions to be put, because the reason for the rule against them no longer exists. In other words, the rule against putting leading questions to your own witness is based upon the tendency of the human mind to adopt the suggestion of the person or side that it desires to aid and to quickly respond to any hint of what is wanted to assist the party making the suggestion. Hence, in the case of a hostile witness obviously the reason for the rule is gone.

262. PAT HOGAN'S CASE. (J. RODERICK O'FLANAGAN. The Irish Bar. 1879. p. 238.)

O'Connell defended a man named Hogan, charged with murder. A hat, believed to be the prisoner's, was found close to the body of the murdered man, and this was the principal ground for supposing Hogan was the perpetrator of the foul deed. That the deceased came by his death by violence, the state of the body clearly showed; and O'Connell felt the case for the prisoner required the exercise of his utmost powers. The Crown counsel made a strong point on the hat, which was produced in produced in court. O'Connell cross-examined the neighbor of the prisoner, who identified it.

"It is not different from other hats," said O'Connell.

A. "Well, seemingly, but I know the hat."

Re

263. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 peating precisely the same question on cross-examination, in order by sheer moral force to compel a witness to admit the truth, after an original false answer or refusal to answer is a process which not only savors of intimidation and browbeating, but also tends to waste time. Accordingly, it is not doubtful that the trial Court has discretion to refuse or to allow this, as seems best under the circumstances. Nevertheless, when used sparingly 1[Adapted from the same author's Treatise on Evidence. (1905. Vol. I, § 782.)]

and against a witness who in the cross-examiner's belief is falsifying, there ought to be no judicial interference; for there is perhaps none of the lesser expedients (that is, ranking after Cross-examination and Sequestration) which has so keen and striking an efficacy, when employed by skillful hands, in extracting the truth and exposing a lie. Simple as this expedient seems, it rests on a deep moral basis; and the annals of our trials demonstrate its power. In the following passages, ranging over three centuries, some of the most notable illustrations will be found:

Count Coningsmark's Trial. (1682. 9 How. St. Tr. 1, 55.) [The Count, charged with murder, was said to have absconded in disguise; and a Swedish fellow countryman of his, at whose house he had changed his clothes, was called]: Q. "Pray, what did the Count say to you about his coming in disguise to your house?" A. "He said nothing, but that he was desirous to go to Gravesend; . . . I helped him to a coat, stocking, and shoes." Q. "Then I ask you, what did he declare to you?" A. "Why, he did desire to have those clothes." Q. "You are an honest man, tell the truth." A. "He declared nothing to me.' Q. "Did he desire you to let him have your clothes because he was in trouble?" A. "He desired a coat of me, and a pair of stockings to keep his legs warm." Q. "I do ask you, did he declare the reason why he would have those cloaths was because he would not be known?" A. "He said he was afraid of coming into trouble." Q. "Why were you unwilling to tell this?"

Lord Baltimore's Trial. (1768. Gurney's Rep. 77.) [Abduction and rape of Sarah Woodcock; the testimony showed plainly that the case was in truth one of willing seduction, although the complainant testified flatly to the use of force and coercion ; her evidence was suspiciously inconsistent, and, on her cross-examination by the accused himself, the following answers were elicited:] Q. "How old are you?" A. "I am twenty-seven." Q. "Will you swear you are no older?" A. "I will swear I am twenty-eight." Q. "Will you swear you are no older?" A. "I will swear I am that." Q. "Will you swear you are no older?" A. "I do not know I need tell; I am twenty-nine, and that is my age; I cannot exactly tell." Q. "To the best of your belief, how old are you?" A. "I believe I am thirty next July; I cannot be sure of that, whether I am or no."

Horton's Trial. (1784. Sel. Crim. Trials at Old Bailey, I, 456.) [The accused, aged 11, was indicted for felonious larceny; and one Isaac Barney, a patrolman, swore to a confession by the boy when under arrest that he had watched while two men entered the house; the following comprised the entire cross-examination of this witness] Counsel: "You had frighted this poor child out of his senses?" Witness: "I do not think he was afraid." Counsel: “Do you know what reward there is for the conviction of this poor infant?" Witness: "Upon my oath I do not know." Counsel: "Do you mean to say that you, a patrol, do not know?" Witness: "I am sure it is a thing I never had." Counsel: "You shall not slip through my fingers so." Witness: "Upon my word and honor I do not know." Counsel: "Upon your oath, sir?" Witness: "I do not." Counsel: "Did you never hear that there was a reward of forty pounds upon the conviction of that child?" Witness: "I never knew any such thing." Counsel: "But you have heard it?" Witness: "I never heard any such thing." Counsel: "Come, come, sir, it is a fair question, and the jury see and hear you. Upon your oath, did you never hear that you would be entitled to forty pounds as the price of that poor infant's blood?" Witness: "Your honor, I cannot say." Counsel: “But you shall say before you leave that place." Witness: "I have heard other people talking about such things." Counsel: "So I thought; and with that answer I leave your testimony with the jury."

Queen Caroline's Trial. (1820. Linn's ed., I, 48, 78.) [In attempting to prove an act of adultery at Naples, between the Queen and her servant Bergami, one of the material facts alleged by the prosecution was that the Queen's sleeping room adjoined