unless he can be either conciliated, circumvented, or subdued. In order to conciliate him, the weak points in his disposition must be ascertained, and siege laid to his heart by questions which appeal directly to these vulnerable characteristics. Once in a good humor with himself and with the advocate, his motive for concealment or perversion of the truth exercises less influence upon his mind, and he replies with little hesitation to cautious inquiries which do not directly touch his prejudices, or present anew to him the exciting cause of his antagonism.

Classes of Liars: Mode of interrogating them. A witness who is not able, or is not disposed, to tell the truth, fails in the most essential attribute of credibility, and from the moment when this fault becomes apparent to the jury their confidence in him and in his testimony is at an end. Of such witnesses there are three classes: The innocent liar, whose imaginations are so intimately mingled with his memories that he does not distinguish between the facts and fancies which occupy his mind, but believes and utters both alike as true; the careless liar, whose love of the pathetic or the marvelous, or whose desire to attract attention to himself, overcomes his weak allegiance to the truth, and leads him to weave facts and falsehoods together in his common conversation, to round out his narrations by the insertion of invented incidents, to give dramatic completeness to events by supplying with fiction whatever may be wanting in the circumstance itself; the willful liar, who for some definite purpose deliberately asserts what he knows to be untrue. . . . The innocent, imaginative liar is generally endowed with no remarkable astuteness, and, being honest in his intentions, readily follows wherever a kindly questioner may wish to lead him. . . . When he is called upon to state facts, at the instance of the adverse party, the natural desire to serve a friend stimulates his imagination as well as his memory, and the story he relates is the net result of fancy and recollection. The cross-examiner may take advantage of the same docility in order to exhibit to the jury his liability to self-deception. If circumstances which they know did not occur, but which are in keeping with the other parts of the transaction as narrated by him, are now suggested to him, his imagination is very likely to insert them into the picture which his memory preserves, and he will express his certainty of their existence with as much positiveness as that of any other matter to which he has testified. This process may be indefinitely repeated, until the jury see that he is willing to adopt and swear to any details which are not manifestly improbable, or until his contradiction of other witnesses, or of former portions of his own evidence, destroys their faith in his intelligence or honesty. . . . The exposure of the careless liar is a work of little difficulty. The cross-examiner needs but to apply the goad, and give him rein. The same qualities which mislead him in his statements in regard to one event operate on all the occurrences of life, and in his mouth a little one" always "becomes a thousand," and "two roistering youths" develop into "eleven men in buckram" and "three in Kendalgreen." Let fitting incidents, whose details are already accurately before the jury, be but presented to him for description, and his palpable additions and exaggerations will complete his ruin. . . . The willful liar, though probably a rare phenomenon, sometimes appears within our courts, and when he does appear generally eludes or baffles all the artifices of the cross-examiner.

66

An open attack upon a willful liar in order to compel him to confess

his voluntary falsehood is nearly always useless, at least until he has been driven to the wall by a superior foe, or has been reduced to such a state of mental confusion that he is willing to admit whatever the victorious crossexaminer may see fit to demand. His willingness to lie may with more ease and certainty be shown by unveiling the evil motives which impel him, or by entangling him in inconsistencies and contradictions which render it impossible to accept any of his statements as worthy of belief.

276. RICHARD HARRIS. Hints on Advocacy. (Amer. ed. 1892. pp. 65, 107.) The Flippant Witness. When a witness comes into the box with what is commonly called a "knowing" look, and with a determined pose of the head, as though he would say, "Now, then, Mr. Counselor, I'm your man, tackle me," you may be sure you have a Flippant and masterful being to deal with. He has come determined to answer concisely and sharply; means to say "no" and "yes," and no more; always to be accompanied with a lateral nod, as much as to say, "take that."

But although I have used the masculine pronoun, this witness is very often a female. She has come to show herself off before her friends; she told them last night how she would do it, and feels quite equal to "any counselor as ever wore a wig."

In dealing with this witness, an advocate should carefully abstain from administering rebukes, or attempting "to put the witness down." His object should be to keep her up as much as possible, to encourage that fine frenzied exuberance, which by and bye will most surely damage the case she has come to serve.

You will always approach her as if she were a wild animal ready to tear you if she could get near enough. Therefore, circumvent. You may be sure she will never give an answer that she supposes may be favorable. I have known this kind of witness so "worked up," that at last she has refused to give an answer that she may think favorable even to her own side, for fear it may be made use of somehow by the other.

The Dogged Witness. The dogged witness is the exact opposite of the one I have just been dealing with. He will shake his head rather than say no. As much as to say: "You don't catch me. You see him, gentlemen, and you see me. I'm up to him." He seems always to have the fear of perjury before his eyes, and to know that if he keeps to a nod or a shake of the head, he is safe. He is under the impression that damage the case he must, whatever he says. 'A still tongue makes a wise head," has always been his

maxim.

66

How are you to deal with him? . . . Insinuation will help you with this witness. But carefully avoid asking for too much at the time. Get little answers to little questions, and you will find as a rule that answers are strung together like a row of beads within the man.

This witness, without being untruthful, is always hostile; he looks on you as a dangerous man, a sort of spy, regards you as he would an ill-looking stranger on a race course who wanted to draw him into conversation. He will become bolder as he proceeds, especially if you prove to him that you are by no means the terrible creature he at first thought you. And the best way to foster this idea is to accustom him to answer. Let him see that your questions are of the simplest possible kind; even so simple and

so easily answered, that it seems almost stupid to ask or answer them. "Of course," he says to one; "Certainly," to another; "No doubt about that," to a third, and so on. Presently you slip one in that is neither "of course" nor "certainly," and get your answer.

He may be an old man (generally is), and the subject of inquiry a right of way. He may be "the oldest inhabitant." What are the moving springs of human conduct? Love of justice, which he has known from a boy upwards, and his father before him, as "right is right, and wrong is no man's right." Self-approbation, or vanity, concentrated in him under the form of “a wonderful memory," which has been the talk of the neighbors for years; the knowing more of by-gone times than any man or woman in the place; Selfishness, called by him his "uprightedness and downstraightedness"; Independence of spirit, "he cares for no man, and always paid twenty shillings in the pound". these are the vulnerable points in his armor; and if you cannot thrust an arrow in at any of these, you had better hang up your bow, for you will never make a good archer. He will answer anything if you appeal to his memory, or if your question magnifies his independence of spirit, or brings out in all its dazzling luster that "uprightedness and downstraightedness," of which exalted virtue he believes himself to have been ever a most distinguinshed example, if not the actual discoverer.

And thus the Dogged witness may be tamed and rendered docile, even as that more sagacious creature, the elephant, may be taught to stand on its head. The Hesitating Witness. A hesitating witness may be a very cautious and truthful witness, or a very great liar. You will find this out before you begin to cross-examine. In most cases the hesitating man is wondering what effect the answer will have upon the case, and not what the proper answer is. By no means hurry this individual. Let him consider well the weight of his intended answer, and the scale into which it should go, and in all probability he will put it into the wrong one after all. If he should, leave it there by all means. I advise this, because I have so often seen young advocates carefully take it out again and put it into the other. Besides, your giving him plenty of time will tend to confuse him as confused he should be if he is not honest. He can't go on weighing and balancing answers without becoming bewildered as to their probable results. . . . Very often he will repeat the question to gain time. Sometimes he pretends not to hear, sometimes not to know; all this time he is adjusting his weights, and in all probability some of them are false. .

Hesitation, however, may result from a desire to be scrupulously accurate, in which case you must be careful that the mere strictness of language do not convey a false impression. The letter sometimes, even in advocacy, kills, where the spirit would make alive.

The Nervous Witness. A nervous witness is one of the most difficult to deal with. The answers either do not come at all, or they tumble out two or three at a time; and then they often come with opposites in close companionship; a "Yes" and a "No" together, while "I don't know" comes close behind. "I believe so," or "I don't think so," is a frequent answer with this witness, as it is with the lying and the truthful witness. They are all partial to this expression, but all from different and opposite motives. You must deal gently with this curious specimen of human nature. He is to be encouraged. It is no use to bray him in a mortar.

You

should deal as gently with a weakness of this kind as you would with a shying horse; encourage and humor him, while you familiarize him with the dreaded object, which is your learned self. The nervous witness, like all others, is either to be cross-examined or not; if he be, you must do it without driving him into such a state that his answer, however favorable, will have no value in the eyes of the jury; and this will surely be the effect of agitating him by petulant impatience. Endeavor to quiet his nerves if you think you can obtain anything serviceable to your case; if not, leave him alone altogether. Great allowance is always made for a nervous witness, who invariably receives the sympathy of the jury. You have to guard, therefore, against offending that sympathy, as you undoubtedly would by a severe tone or manner.

The Humorous Witness. The humorous witness is mostly found in theatrical cases, where he is generally looked for; and in the majority of them he seems to be conscious that he is expected. He scarcely ever says a good thing, although everybody laughs whenever he tries to. He is generally encouraged all round, and very often the judge will say a good thing for him. This witness is a public character, and at any risk he must not disappoint his eager patrons. If he says a good thing, it will be in to-morrow's paper, and the theatrical world will have it for breakfast. If he cannot manage it, his performance will be a failure. So he mounts the box and looks all round the court as much as to say, "The last witness was nothing, now comes the real performance."

No one need be told that his weak point, like that of almost all men, is vanity, and his strong one good temper. You will scarcely ever find him intentionally false, and he seldom attempts to mislead. He rarely has any interest in the case, and most frequently not the excitement incident to party feeling. As a rule he is the friend of both sides, as he is with the human family generally; for though he may be out at elbows with all the world, he brings "railing accusation" against no one.

Supposing the action to be one of assault, you can successfully appeal to his good nature if you are for the defendant; and he will almost rub the cause of action out for you as he would a debtor account from a slate. Play him with his superabundant good humor, and lay aside the style of the crossexaminer altogether. Be with him like a schoolmaster with the boys after school, and you will find that he will jump to your conclusions if you offer him a back. . .

The Cunning Witness. The cunning witness must be dealt with cunningly. Humor would be mere pastime, and straightforward questioning out of character with him. But by way of contrast, and for that only, straightforwardness may not be out of place with the jury. Whatever of honesty, whether of appearance, manner, tone, or language contrasts with the vulgar, self-asserting and mendacious acting of this witness will tend to destroy him. It will be the antidote to his craftiness. It is strange, but true, that no man can be what is usually understood as a "cunning person" and conceal the fact. He is not really a shrewd man, but only thinks he is, tries to be, and, above all, wishes to be thought so. He always pretends that he has some deep and hidden meaning in what he says and does, which no amount of skill or perception on your part can penetrate. He would be an impostor to the world if he could, but the only person he really imposes upon is him

self. Every one can see that he tries to appear what he is not, and that he pretends to know a great deal more than he does. This is the man to show to the jury in his real character, and they will enjoy your good-humored exposure of the cheat. . .

The Canting Hypocrite. The canting hypocrite is not the least pleasing object of creation when in the witness box, nor is he the most difficult to cross-examine. He invariably speaks from the very best and purest of motives. His desire is only to speak the truth; no, not merely that, but without so much as an apparent tinge of partiality. He has no interest in the case no feeling. It is such a pity it could not have been settled out of court as he proposed, himself to be the arbitrator.

Here is a good man for you! It is a pity that necessity and a sense of duty should compel you to cross-examine such a man at all. It seems almost an insult, but excusable on this ground—that his extreme disinterestedness and impartiality might impose upon the jury and do your client an injustice if you did not. Now you will observe about this rogue that whenever he approaches a downright lie he shirks it. It is a part of his very character to believe he is an honest man. When he comes to a lie, therefore, that he dares not face, he is like a bad hunter who will not leap the fence, but looks round to see if there be a gap somewhere hard by or a somewhat lower fence that he may scramble over, and so not do violence to himself in the event of a mishap. The hypocrite coming up to the lie, says: "I am not quite clear; I should hardly like to go so far as that." But he will wriggle over on to the other side somehow if you show him a place. So, if you put it to him something in this form: "I presume I may take it, Mr. Pecksniff, that so-and-so is the case?" "Well," says he, "I think you may.' Now he's fairly over. You will not fail to mark this characteristic in him, that whenever he begins to think, to be not quite sure, not clear, and to believe and presume, and so forth, he is incubating a downright lie. He himself is a lie that needs little telling. His evidence, which may and will be always on the confines of truth, must be closely examined to see on which side of the boundary it really is. . . . He is too excellent to deny the truth if you put it to him in infinitesimally small quantities at a time in the shape of simple leading questions, each one carrying with it the shadow of perjury, which this man will always avoid committing at any cost.

The rogue believes in two things-Religion and his own Goodness. His religion is covetousness, which he always construes into a Special Providence ; and his Goodness is exemplified in an enthusiastic worship of Himself. He is an eminently moral man, as every one will tell you; but his morality springs not from a genuine piety, but from arrant cowardice. He would sin to his heart's content but for the dread of punishment. He is a weak sinner nevertheless, who cannot even plead a robust constitution in mitigation. The Witness partly True and partly False. The witness who is partly true and partly false, without hypocrisy, knowing that he is giving color to some facts, suppressing others, and adding little ones to make good measure for his party, is the most difficult of all to deal with. The process of separating the true from the false requires skill as well as ingenuity and patience. You must have a delicacy of touch in manipulating evidence of this kind that comes only by actual practice. Experienced advocates are frequently deceived, and judges even fail at times to separate what is true from what is