to set up a dozen alibis at once some for himself and some for his friends so he must necessarily become confused, and as he will tell the truth and lie at the same time, you will find him pretty much at your mercy. It may be that he saw several people on that morning, and he may place so many of them together, by a little gentle humoring, that you may, at least, safely put the question, "Were not the people coming out of church?" Outwitted, the rogue will smile and say no, it was Thursday! but the effect of this, if done with tact, will utterly destroy the whole story. The jury will readily accept the suggestion which, indeed, you may be able to prove by independent testimony that the day he is speaking of must, from the incidents you have drawn from him, have been Good Friday, and not the preceding Thursday. But you will not rest there: at present you have only gone a little portion of the way. The next witness will fall into the same blunder, and may add another minute fact to the particles of evidence. Suppose Thursday was a fine and Friday a wet day. Here is a field for the exercise of ingenuity which counsel should hail with delight; and he ought not to sit down till he has proved from the witness that the day he and his companions were together was a wet day.... You would not be weak enough to let him suspect that you were cross-examining for a rainy day, otherwise you would fail; it is only by keeping him in the dark that you can succeed. His mind will be working intensely the whole time you are questioning him, and as his great object will be to find out what you are aiming at, yours must be to conceal it. As a policeman once said of an eminent friend of mine on the Midland circuit, "He's a good cross-examiner, sir, he never lets you know what he's driving at."

If you succeed in getting from these two witnesses an incident, however small, that even tends to show that the meeting took place on Friday you will have almost demolished the alibi. But C comes into the box, and may by a stretch of memory recollect for whom he worked at the time and what particular work he was engaged upon: and it might possibly have happened that some portion of the machinery broke on that particular morning. Nothing outside the case is too trivial if it throw but the faintest gleam upon it. If he answers flippantly he will be caught in two or three questions without much difficulty. If he answers overcautiously he will betray himself by his demeanor, and you may follow him up and give him line like a pike that has taken the bait. But if no work was done and no machinery broken, you will still be able to find out his habits, his mode of living, and his surroundings, and it will be strange if from all these you do not lay hold of some event which will be shown by its connection with some other event to have happened on the latter and not the former of the days in question. The smallest incident may be linked to a greater, which may be either patent of itself or notorious as to the day of the week on which it took place. Other witnesses may be dealt with in like manner, none of them being cross-examined to the same facts unless for the purpose of contradiction, but all of them questioned as to incidents which, small though they be, will in their united strength destroy the alibi altogether.

On the other hand, an honest case is sometimes spoiled by just such discrepancies, which give the impression that the witnesses are wrong on some of the more vital facts. It is extremely important that you should not try to prove too much, or you may in consequence prove too little. "Overlay

ing the case," as it is called, is a dangerous proceeding. It is like taking a feather-bed, bolster, and two pillows to smother a mouse with, when the feather-bed would be amply sufficient if well applied. A number of witnesses cannot agree on all points; I do not mean in words, because that would at once damn their evidence, but I mean as to facts themselves; and if you call a number of witnesses, the chances are that you will call a number of contradictions, and the moment you get one witness to contradict another upon any point how little material soever, if it be material, the jury, as a rule, will determine that portion of the evidence in favor of the accused, unless other circumstances lead them to a different conclusion. You will have given him already the benefit of one doubt.

... I may here mention (with all reverence) one great prosecuting institution which is very apt to overlay its infants, and that is THE CROWN. I remember one very important case in which the Crown was cruelly hoodwinked, and I have always had a feeling of deep sympathy with the Crown ever since. It was a case of murder. A very bad case. Horribly brutal. The public was shocked and intensely interested throughout the length and breadth of the land. It was a murder that ranks among the great murders of the world. In consequence whereof there was more bungling among the police, and more conflict among police authorities than usual. ... The "proofs" came thick and fast you may be sure; almost everybody had a "proof." The whole country seemed to have been called from its avocations to see the murder done. The prisoner was seen here and seen there; he was buying in this shop and visiting in that; he was singing in one place and dancing in another; courting in one lonely spot and murdering in another. There never were so many "clews" to a single crime. At last the perpetrator of one horrible murder, at all events, to the satisfaction of one section of the police, would be brought to justice. It would make up for many undiscovered and thrilling crimes. Let no one henceforth say the police cannot "find out anything." Into the office where they take the evidence, or "proofs," there stepped witness after witness scores of witnesses. Evidence was taken down, sifted, weighed, measured, as it might have been by the yard; and there stepped in among the crowd one or two of the simplest-looking, "innocentest" looking young men that could be found in all London, and an innocent looking woman or two, if I remember rightly. Now, the Crown being incapable of doing any wrong, is equally incapable of thinking any evil; so it thought no evil of these interesting witnesses, who gave their story with solemn faces, and went away with proper subpoenas in their pockets, proper Crown Office subpoenas.

The trial came on, as, after so much elaborate preparation, it was only proper that it should; and the evidence looked uncommonly black against the unhappy prisoner. An anxious and highly sensational public watched for justice to be avenged. But it was curious that amid the Crown witnesses, interspersed, were witnesses who made some matters deposed to impossible, who undid fastenings and knocked the heads off several of the Government rivets; in fact, who seemed altogether to upset the elaborately constructed evidence of the prosecution. Crown became confused, looked at the notes taken down at the institution, compared them with the evidence in court to-day, questioned the witnesses no use, there were contradictions, irreconcilable disagreements, all in favor of the prisoner. Dates were wrong;

prisoner was in two or three places at once. And so it went on, until the judge summed up. The judge did not reconcile the discrepancies — could not, in fact; jury never attempted to. So the man was acquitted. Evidence not sufficient because too much.

332. JAMES RAM. On Facts as Subjects of Inquiry by a Jury. (3d Amer. ed. 1873. p. 193.) A question of credit often arises on different, or contradictory, evidence given by two witnesses. When two persons have been present when a fact took place, when something was heard or seen, and each gives an account of the fact, their stories sometimes quite, or at least very nearly, agree. But at other times it is found that the account which one gives of the fact, or if not of the fact itself, the main fact, yet of some accompanying circumstance, differs much from the account given by the other. A discrepancy of this kind necessarily raises a question of credit; and this whether the witnesses are honest or dishonest.

Assuming that each of the two is an honest witness, the disagreement in their accounts is to be sought for in each one's perception of the thing seen or heard, the impression it made on him, and his remembrance of it. From inattention, interruption, a less acute sense of hearing or sight, distance from the sound or object heard or seen, or from some other cause, one may not have had the same perception or impression which the other had of the particular thing; or the memory of the one may be better than that of the other.

It may happen that when one person does one thing, and another another, each may think and say he did that which the other did. Here each is mistaken, but his mistake need not at all affect his credit. On the same trial of Frost, part of the evidence for the Crown was that a large and armed mob had assembled in front of an inn, in which soldiers were placed, the soldiers being in a room looking toward the front, and having in it one projecting window, namely, a bow with three windows, one of which, that nearest to the passage or entrance to the inn, being, to a person in the room, and looking toward the projecting window, on the left of the middle of the three windows. The lower half of the shutters of each of the three windows was closed; and it becoming necessary, for the purpose of firing on the mob, to open the shutters, they were opened by Phillips and Gray, witnesses on the trial. On the fact that the shutters were opened, Phillips and Gray agreed in their evidence; but they differed in their evidence of the person who opened the shutters of the left-hand window and those of the middle window. Phillips said that he opened the shutters of the window on the left, and that Gray opened the shutters of the middle window. On the contrary, Gray said that he opened the shutters of the window on the left, and that Phillips opened the shutters of the middle window. Lord Chief Justice Tindal told the jury the point was perfectly immaterial, unless the variance and discrepancy between the witnesses was of such a nature as to impair their confidence in the one or the other.1

Also, when a thing is done by one person, and the like may be done by another, and each of two persons thinks and says he did a something, which may correspond either with the thing first mentioned, or with that like it, it will not follow that the two persons mean the same thing; and there may consequently be no contradiction between them, and their credit may be in 1 Frost's Trial (taken by Gurney), pp. 238, 248, 249, 707.

no wise affected by what they say. On the same trial of Frost, the two witnesses, Phillips and Gray, agreed so far that the soldiers were ordered to load; and Phillips said he ordered them, and Gray said he did. “It is possible," said the Lord Chief Justice Tindal, "that both might have done it, and that Gray did not hear the order given by Phillips. It is very immaterial to the main question, because such discrepancies as this may exist very well between witnesses, without at all breaking in upon the weight due to the testimony of each."1

"I know not," says Paley, "a more rash or unphilosophical conduct of the understanding, than to reject the substance of a story, by reason of some diversity in the circumstances with which it is related. The usual character of human testimony is substantial truth under circumstantial variety. This is what the daily experience of courts of justice teaches. When accounts of a transaction come from the mouths of different witnesses, it is seldom that it is not possible to pick out apparent or real inconsistencies between them. These inconsistencies are studiously displayed by an adverse pleader, but oftentimes with little impression upon the minds of the judges. On the contrary, a close and minute agreement induces the suspicion of confederacy and fraud. When written histories touch upon the same scenes of action, the comparison almost always affords ground for a like reflection. Numerous, and sometimes important, variations present themselves; not seldom also absolute and final contradictions; yet neither one nor the other are deemed sufficient to shake the credibility of the main fact. The embassy of the Jews to deprecate the execution of Claudian's order to place his statue in their temple, Philo places in harvest, Josephus in seed-time; both contemporary writers. No reader is led by this inconsistency to doubt whether such an embassy was sent, or whether such an order was given. Our own history supplies examples of the same kind. In the account of the Marquis of Argyle's death, in the reign of Charles the Second, we have a very remarkable contradiction. Lord Clarendon relates that he was condemned to be hanged, which was performed the same day; on the contrary, Burnet, Woodrow, Heath, Echard, concur in stating that he was beheaded; and that he was condemned upon the Saturday, and executed upon the Monday. Was any reader of English history ever skeptic enough to raise from hence a question, whether the Marquis of Argyle was executed or not?" 2

333. JOHN H. WIGMORE. Principles of Judicial Proof. (1913.)3 Sequestration of Witnesses. The probative service rendered by this expedient is somewhat different according as the witnesses separated are called for opposing parties or for the same parties.

(1) If the hearing of an opposing witness were permitted, the listening witness could thus ascertain the precise points of difference between their testimonies, and could shape his own testimony to better advantage for his cause. The process of separation, then, is here purely preventive; i.e. it is designed, like the rule against leading questions, to deprive the witness of suggestions as to the false shaping of his testimony.

(2) But the separation of witnesses on the same side may do something

1 Frost's Trial (taken by Gurney), pp. 237, 248, 251, 707.

2 Paley's Evidences of Christianity, part iii, chap. i.

3 [Adapted from the same author's Treatise on Evidence.

(1905. Vol. III, § 1838.)]

more than this. It is equally preventive, in that it deprives the later witness of the opportunity of shaping his testimony to correspond with that of the earlier one. But it is, additionally, detective in its effects; i.e. it exposes their difference of statement on points on which, had they truly spoken, they must have made identical statements. This variance of statements is the significant achievement of the witnesses' separation, and seems to rest for its probative cogency on two salient circumstances, namely, (a) that the witnesses speak upon the same side, and (b) that the subject of their statements is the details of a single occurrence. (a) The first circumstance serves to remove uncertainty, by fixing unmistakably upon one party's case the whole burden of error. Where two persons, claiming to have been present on the same occasion with equal opportunities of observation, are called upon opposite sides and contradict each other, the contradiction does not of itself establish anything; it may indicate that one of the two is falsifying, but it does not indicate one rather than the other as the falsifier; it is still open to either side to claim its witness as the truthful one, so that neither side is clearly fixed with the error of falsity. But where both speak for the same party, contradicting each other, it is manifest without anything further that the error is upon that particular side; the result is achieved by mere comparison of statements, without the necessity of first granting credit to an opposing witness and without any of the troublesome uncertainty which arises from being forced to weigh their respective credits. (b) The second circumstance, mentioned above, emphasizes the probability of a downright manufacture of testimony. The truth of the main fact is put forward by the party as confirmatively established by the harmony of their joint testimony; and, where two persons come purporting to have observed the same event in the same way, the details of that fact, necessarily and equally open to their observation at the same time, ought to produce the same harmony of impression, and therefore of testimony. If, then, that harmony disappears upon further questioning as to these details, one of two inferences follows: Either (b) there is an honest mistake, in observation or in memory on the part of one; but the former is less likely to the extent that the one fact was necessarily connected in observation with the other, and the latter is almost impossible where (as is usual) the statements are positive, and therefore mere failure of memory does not serve to explain; moreover, even an honest mistake as to details shows the probability of a mistake on the main fact. Or, (bb) there is a collusive arrangement, or a deliberate intention by one, to testify falsely; for if, on connected matters of detail, which by the operation of the senses ought equally to have produced identical impressions and therefore identical statements, there is no harmony, then the apparent harmony of statement on the principal fact can be explained only as artificial (i.e.) as the result of an individual plan or a combination to manufacture false testimony. This not only discredits one or both of the witnesses in all their testimony, but also throws suspicion on the entire mass of evidence of that party, if this fabrication by the witnesses may seem to have been known to him. More concisely and less accurately: If matters A, B, C, and D must have happened together, then a disagreement as to the tenor of matters B, C, and D, by witnesses called on the same side to prove A, indicates probable perjury by one or more as to A. and possible subornation of perjury by the party.