Bergami's, with only a corridor and a cabinet intervening, and that there was no access from the Queen's room to Bergami's except by that passage; to this the servant Majocchi, who for a time slept in the cabinet mentioned, testified as follows, on being asked by Mr. Solicitor-General Copley (afterwards L. C. Lyndhurst) whether there was no other intervening passage]: "There was nothing else. One was obliged to pass through the corridor, from the corridor to the cabinet, and from the cabinet into the room of Bergami. There was nothing else." Then, on his cross-examination, Mr. Brougham asked as follows: "Will you swear there was no passage by which her Royal Highness could enter Bergami's room, when he was confined with his illness, except going through the room [i.e. cabinet] where you slept?" Majocchi: "I have seen that passage; other passages I have not seen." Mr. Brougham: “Will you swear there was no other passage?" Majocchi: "There was a great saloon, after which there came the room of her Royal Highness, after which there was a little corridor, and so you passed into the cabinet. I have seen no other passage. Mr. Brougham: "Will you swear there was no other passage?" Majocchi: "I cannot swear; I have seen no other but this; and I cannot say there was any other but this." Mr. Brougham: "Will you swear that there was no other way by which any person going into Bergami's room could go, except by passing through the cabinet?" Majocchi: "I cannot swear that there is another; I have seen but that; there might have been, but I have not seen any, and I cannot assert but that alone." Mr. Brougham: "Will you swear that if a person wished to go from the Princess's [i.e. Queen's] room to Bergami's room, he or she could not go any other way than through the cabinet in which you slept?" Majocchi: "There was another passage to go into the room of Bergami." Mr. Brougham: "Without passing through the cabinet where you slept?" Majocchi: “Yes.”

264. CHARLES C. MOORE. A Treatise on Facts, or The Weight and Value of Evidence. (1908. Vol. II, §§ 699, 814, etc.) Memory Refreshed or Revived by Memorandum. ... We have elsewhere seen how readily imagination and inference produce false recollection. This facility often makes it extremely difficult for judges to arrive at satisfactory conclusions, because, in many cases, witnesses do really, by attentive and careful recollection, recall the memory of facts which had faded away, and were not, when first questioned, present to their minds. . . . A memorandum, however, may exert an improper control over the recollection of a witness, instead of merely refreshing his memory. We have already seen that the memory of an interested witness tends to favor himself. . . . Where a party testified in his own interest to a transaction of remote date, and the written evidence thereof favored his statement, the Court observed that “the witness would naturally rely more on the written papers as to what the transaction really was, than on any obscure or imperfect recollections of anything differing from them;" for example, it would not be singular if, looking at a deed to himself, absolute on its face, he should forget or deny a contemporaneous understanding that it was a mortgage. In a collision case between vessels some of the seamen testified, several months after the collision, as to the direction of the wind, their testimony in that regard agreeing with an entry in the log kept by the master. But it was found that the original entry had been obliterated by another entry in a different ink. The Court said it was most reasonable to believe that the altered log had been shown to the witnesses, and had led their recollection into the error committed in the fabricated entry.

265. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)1 Prepared Deposition. Since the witness' statement must correspond spontaneously to his actual recollection, it is plain that to permit him to commit to writing beforehand certain statements and then to read them or hand them in as his testimony would be to abandon all safeguard against fabrication and to make possible any manner of pretended testimony. This mode of furnishing testimony is universally prohibited. It is of course to be distinguished from the use of writings which genuinely revive a present recollection or record a past recollection. Indeed the object of the restrictions placed upon those two uses of writing is chiefly to insure that they are not writings of the prohibited and improper sort. The distinction is a clear one, namely, between writings which frankly purport to be used to aid memory (in which they are to be tested by the appropriate restrictions) and writings which do not purport to be so used; the latter falling within the present prohibition:

ELDON, L. C., in Shaw v. Lindsey. (1808. 15 Ves. Jr. 380, 381): "Upon general principals nothing is more clear than that a witness before commissioners cannot be examined in such a manner that the effect is, not his testimony given in answer to interrogatories, but (as it is termed) filing an affidavit. . . . All courts of justice are extremely anxious to secure the pure examination of witnesses by not permitting that mode of examination which could lead to infinite mischief. Many instances have occurred of a witness coming into court holding in his hand an answer which he has conscientiously framed as his answer to interrogatories, with the substance of which he may be acquainted, — the answer of an honest, conscientious man, and the value of his testimony perhaps not diminished by his anxiety to be correct. Yet courts of law and equity, with the view of excluding general mischief, concur in refusing to allow it. . . . The habitual practice of law, upon an examination viva voce is not to permit any suggestion to the witness by the attorney, counsel, or any other person; the same strictness prevails in this court, where the extent of mischievous management that would ensue, if a witness should be permitted to go before commissioners with a prepared deposition, is obvious."

KENT, C., in Underhill v. Van Cortlandt. (1817. 2 Johns. Ch. 339, 346): "He went before the examiner with a prepared deposition. This is against the course and policy of the court, and it would lead to the most dangerous practices. The witness should go before the examiner, as Lord Coke observes, 'untaught and without instruction.' He should be free to answer the sifting interrogatories that are framed for the issue in that case, instead of merely filing an affidavit ready drawn.”

266. BROWN v. BRAMBLE. (PETER HARVEY. Reminiscences of Daniel Webster. 1901. p. 67.)

One Brown had taken from one Bramble a bond to pay said Brown $100 a year for life. After a while Bramble began to persuade Brown to cancel said bond for a definite sum, but Brown would always refuse. It was Bramble's custom to indorse the annual payments on the bond. At next payment Bramble indorsed, not $100, but $1000 as paid on the bond, adding,

"in full consideration of and canceling this bond." Brown, not being able to read or write, signed the indorsement by making his mark, and the bond was kept by him. When Brown demanded payment the following year, the other contended that he owed nothing, citing the indorsement of the previous year. Brown consulted Mason, but finding him retained by

1 [Adapted from the same author's Treatise on Evidence. (1905. Vol. I, § 787.)]

Bramble, went with his story to Webster, who, putting faith in his story, entered into the fight, which came on at Exeter, New Hampshire. There was at that trial a witness for Bramble by the name of Lovejoy, who, it appears, was a "chronic" witness, appearing in nearly every case held in the neighborhood. A friend of Brown, seeing Bramble in conversation with Lovejoy, noticed that the former gave to Lovejoy a paper, and informed Webster of the fact just before the trial. Lovejoy's testimony seeming to Webster somewhat unnatural, Webster came to the conclusion that said paper given by Bramble must contain the evidence, or rather testimony, which

267. CHARLES C. MOORE.

Lovejoy was supposed to give. Webster says: "There sat Mason, full of assurance, and for a moment I hesitated. Now, I thought, I will make a spoon or spoil a horn. I took the pen from behind my ear, drew myself up, and marched outside of the box to the witness stand. 'Sir,' I exclaimed to Lovejoy, ‘give me the paper from which you are testifying! In an instant he pulled it out of his pocket; but before he had it quite out he hesitated, and attempted to put it back. I seized it in triumph. There was his testimony in Bramble's handwriting!”

The end was that the case was settled on terms dictated by Webster.

A Treatise on Facts, or The Weight and Value of Evidence. (1908. Vol. II, §§ 699, 814, 828, 836, 838, 1268.) Prepossession [Autosuggestion] causing Error in Observation. . . . Froude says: “In certain conditions of mind the distinction between objective and subjective truth has no existence. An impression is created that it is fit, right, or likely that certain things should take place, and the outward fact is assumed to correspond with that impression." The effect of prepossession, of which interesting illustrations relating to both observation and memory are found in various places in this work, was strikingly stated by Mr. Justice Grier. "Tell a man that a person's name with which he is acquainted has been forged," said he, "and nine cases out of ten, he will be astute enough to fancy he discovers some marks of it." Belief that there were such creatures as witches, which obsessed the witnesses for the prosecution in the old witchcraft cases, undoubtedly caused frightful errors in their testimony to what they had seen. An observer's false preconceived conclusion may cause him to testify erroneously to the identity of persons or objects that he has If a man believed that another man introduced to him by a woman was her husband, it would not be strange if he failed to notice that the man was not introduced as her husband, and if he subsequently testified erroneously on that point. . . . In New York City instances scandalously numerous have occurred where ambulance surgeons, judging from a man's environment or other circumstances, have erroneously diagnosed insensibility caused by a fracture of the skull as a case of alcoholism. In a case in Canada where the plaintiff was severely injured by walking off a sidewalk, the defendant city contended that he was under the influence of liquor at the time; the attendants at a hospital to which he had been immediately taken made such an entry in their records. "Instances of such mistakes are not rare," said Chief Justice Mulock, of Ontario. "The plaintiff a short time before had had a glass of whisky, which, doubtless, would be observable by a person dressing his wounds. He arrived at the hospital in an excited state, doubtless resulting largely, if not wholly, from the accident. His

seen.

face was covered with blood, and he was in the company of a policeman. On such evidence the attendants concluded that he was under the influence of liquor. The evidence does not, I think, support such a conclusion.” . . . Witness influenced by hearing Others Testify. The lawyer who has practiced long in jury causes cannot have failed to observe that the practice of permitting witnesses to hear each other's testimony has often resulted in a great and gross abuse of public justice. Human nature is frail, and that frailty is as often illustrated in the witness box as elsewhere. The witness in an excited litigation often becomes the mere partisan of the litigant whose cause he represents. His solicitude in the cause, and his anxiety to win the verdict, are often no less than those of his friend and summoner, whose life, liberty, or property may depend upon that verdict. He comes to regard the adverse party and the adverse witnesses as his adversaries, and often, with scarce a consciousness of the serious obligation that is upon him, lapses into the conviction that the scene before him is a mere tilt and tourney in which he enters to overturn and countervail the testimony of the adverse party. He has heard the evidence of his own party in regard to the transaction, and perhaps he remembers it somewhat differently; but a conflict would be fatal; and he often reasons his flexible conscience into the opinion that his own memory is at fault, and the statement of his confederate is the true version, and he therefore corroborates it. He has heard the testimony of the adverse party, and his ingenuity is taxed at once to strike it where it is vulnerable, and to destroy it. . . . The purpose to be subserved in putting witnesses "under the rule" [by separating them during each other's testimony] is that they may not be able to strengthen or color their own testimony, or to testify to greater advantage in line with their bias, or to have their memories refreshed, sometimes unduly, by hearing the testimony of other witnesses.

...

Tutored Witnesses. The mere fact that attorneys at law, in preparing their case for trial, have talked with a witness, should not be presented to the jury as ground for discrediting such witness, for it is the duty of the attorney to learn from witnesses what testimony they can give, in order to enable him to conduct the trial on his part with expedition. To endeavor to learn from a witness, for the first time, on the witness stand, whether he knows anything of the facts at issue, would involve a needless waste of the time of the court. Nevertheless, the substance of conversation had before the trial, between the witness and the attorney or others, in relation to the testimony to be given, is proper subject of inquiry and within the field of legitimate cross-examination, and it may be that the trier of facts will receive a strong impression that the vague and indistinct recollection of a witness has been pointed for the purposes of the case by the suggestions of counsel — that the latter controlled and mastered the memory of the witness. . . . Courts look with great suspicion upon the testimony of witnesses when there is reason to believe that they have been willing pupils diligently instructed by interested parties how to make their several testimonies fit in with each other so as to give united support to the cause and yet avoid the appearance of confederacy. For example, in considering the course followed to get together a host of witnesses to prove testamentary incapacity in a will case, Sir John Nicholl, who was not only a celebrated jurist, but a magistrate of transcendent sagacity in estimating the value of testimony,

spoke as follows: "A room is taken at 'The Ship in Distress,' a tavern at Horsleydown; there the witnesses attend and are entertained; they talk the matter over, a long bill is incurred, the landlord and landlady are two of the witnesses; Mr. Alderson (an interested party) goes there frequently, and carries his own claret there. How is the court to estimate the degree of reliance to be placed on witnesses so got together and so brought forward?"

268. JOHN C. REED. Conduct of Lawsuits. (2d. ed. 1912. § 101). . . . It is also an advantage that [at an early interview] you commit and fasten the witness to his narrative. For sometimes a witness is wavering. When the transaction is fresh, he is full of nothing but its actual details, but frequently he is disposed afterwards to alter his first report. He may begin to recoil from the effect of his testimony upon the interest or feelings of the opposite party and his relatives and friends, and he is usually influenced by their appeals and solicitations. All of us have observed that the testimony of good men is shaped and colored by their associates. You will sometimes find that the others, while testifying to the same facts, repeat many particulars of the first witness, although they may have been excluded from court during his examination. This is because they have talked over the matter together, each desiring to avoid being contradicted by the rest. Many times the others labor to reproduce the narrative of the one of most intelligence and standing; and he may be strongly biased, for all of his seeming frankness. You have a multitude of reasons for being in haste to make your slippery witness sure and steadfast.

269. FRANCIS L. WELLMAN. Day in Court. (1910. p. 79).... The advocate should get his client to bring his witnesses to him at once; should take their stories in detail, squeeze them dry of information; and be careful not to suggest any answers by his questions. He should always bear in mind. that the same witness in the quiet of a lawyer's office, where he may want to appear important as well as obliging, is apt to tell an entirely different story from the one he will stick to when he takes his oath in a court room in the presence of the judge, jury, and audience, especially if he has heard other witnesses broken down by cross-examination. Unless an advocate is care

ful, therefore, when he takes a witness's statement in his office, he will be entirely deceived by him. Nearly every witness is prone to exaggeration and can be easily encouraged to state as facts matters that are merely hearsay or his own inference. Lawyers themselves are in a large measure to blame for this state of things because they lead and push a witness too far. . . .

There is a great difference between "coaching" a witness and preparing him for the witness stand. If a witness is "coached," he is apt to be led to perjury, but if he is merely prepared, then, in my judgment, the cause of truth is advanced. Why should a timid, nervous witness be left to the tender mercies of the opposing lawyer without a word of advice? ... There is nothing so annoying as a fool in the witness box, especially when the examiner knows the man who is making a fool of himself is really telling the literal truth. Why not remind a witness to keep his temper, to speak slowly and distinctly, to be respectful to the court and the opposing lawyer? Why