for otherwise much time would be wasted to no purpose. It is sometimes said that the test of a leading question is, whether an answer to it by "Yes" or "No" would be conclusive upon the matter in issue (b); but although all such undoubtedly come within the rule, it is by no means limited to them. Where "Yes" or "No" would be conclusive on any part of the issue the question would be equally objectionable: as, if on traverse of notice of dishonour of a bill of exchange, a witness were led either as to the fact of giving the notice, or the time when it was given. So, leading questions ought not to be put when it is sought to prove material and proximate circumstances. Thus, on an indictment for murder by stabbing, the asking a witness if he saw the accused covered with blood and a knife in his hand coming away from the corpse, would be in the highest degree improper, though all the facts embodied in this question are perfectly consistent with his innocence. In practice leading questions are often allowed to pass without objection by a sort of tacit consent. This chiefly occurs where the question relates to matters which, though strictly speaking in issue, the examining counsel is aware are not meant to be contested by the other side. On the other hand, however, very unfounded objections are constantly taken on this ground. A question is objectionable as leading when it suggests the answer, not when it merely directs the attention of the witness to the subject respecting which he is questioned. On a question whether A. and B. were partners, it has been held not a leading question to ask if A. has interfered in the business of B. (c), for suppose he has, that falls far short of constituting him a partner. So in an action for slander (d), in saying of a tradesman that "he was in bankrupt circumstances, that his name had (b) Rosc. Crim. Evid. 167, 3rd Ed. (c) Nicholls v. Dowding, 1 Stark. 81. (d) Rivers v. Hague, C. B. Nov. 29, 1837, MS. Exceptions. been seen in a list in the Bankruptcy Court, and would appear in the next Gazette;" a witness having deposed to a conversation with the defendant, in which he made use of the two first of these expressions, was asked, "Was anything said about the Gazette?" This was objected to as leading, but allowed by Tindal, C. J. So, although there is no case where leading should be avoided more than when it is sought to prove a confession, a witness who deposes to a conversation with the accused, may, at least after having first exhausted his memory by asking what took place at it, be asked whether anything was said on such a subject, i. e. on the subject-matter of the indictment. It should never be forgotten that "leading" is a relative, not an absolute term. There is no such thing as leading in the abstract-the very identical words which would be leading of the grossest kind in one case or state of facts, would be not only unobjectionable, but the very fittest mode of interrogation in another. § 612. There are some exceptions to the rule against leading. 1. For the purpose of identifying persons or things, the attention of the witness may be directly pointed to them. 2. Where a witness is called to contradict another as to expressions out of court which he denies having used, he may be asked directly, Did the former witness use such and such words (e)? The authorities are not quite agreed as to the reason of this exception (ƒ), and some strongly contend that the memory of the second witness ought first to be exhausted by asking what the other said on the occasion in question (g). 3. The rule which excludes leading questions being chiefly founded on the assumption that a witness (e) Edmonds v. Walter, 3 Stark. 7. (f) Courteen V. Touse, 1 Campb. 43; Hallett v. Cousens, 2 Moo. & R. 238. (g) Ph. & Am. Evid. 889; 1 Ph. Evid. 463, 10th Ed. must be taken to have a bias in favour of the party by whom he is called, whenever circumstances shew that this is not the case, and that he is either hostile to that party or unwilling to give evidence, the judge will in his discretion allow the examination in chief to be conducted as a cross-examination (h). And it would seem, that for the same reason, if the witness shews a strong bias in favour of the cross-examining party, the right of leading him ought to be restrained; but the authorities are not quite clear about this (i). 4. The rule will be relaxed where the inability of a witness to answer questions put in the regular way evidently arises from defective memory, or the complicated nature of the matter to which he is interrogated. § 613. Although the not leading one's own witness Expediency of when allowable is by no means so bad a fault as leading allowable. leading when improperly, still it is a fault; for it wastes the time of the court, has a tendency to confuse the witness, and betrays a want of expertness in the advocate. There are however cases where it is advisable not to lead. Thus on a criminal trial, where the question turns on identity, although it would be perfectly allowable to point to the accused and ask a witness if that is the person to whom his evidence refers, yet if the witness can unassisted single out the accused his testimony will have more effect. adversary's witnesses. § 614. 4. One of the chief rules of evidence, as has 4. Discrediting been shewn, is, that no evidence ought to be received which does not bear, immediately or mediately, on the matters in dispute (k). As a corollary from this, all (h) Ph. & Am. Evid. 888; 2 Ph. Evid. 462, 10th Ed. (i) See Rosc. Crim. Evid. 168, 3rd Ed.; 2 Phill. Evid. 472-3, (k) Part 3, bk. 1, ch. 1. questions tending to raise collateral issues, and all evidence offered in support of such issues, ought to be rejected. But many difficulties arise in practice as to what shall be deemed a collateral issue with reference to the credit of witnesses. In addition to counter-proofs and cross-examination, there are three ways of throwing discredit on the testimony of an adversary's witness. 1. By giving evidence of his general bad character for veracity, i. e. the evidence of persons who depose that he is in their judgment unworthy of belief, even though on his oath. And here the inquiry must be limited to what they know of his general character, on which alone that judgment should be founded; particular facts can not be gone into (m). "There are two reasons," says ef: 17/18 bict: c 125 Parke, B., in the Attorney-General v. Hitchcock (n), 1. Evidence of general bad character for veracity. 6:25. "why collateral questions, such as a witness having committed some particular crime, cannot be entered into at the trial. One is that it would lead to complicated issues and long inquiries without notice; and the other that a man cannot be expected to defend all the acts of his life." And Alderson, B., in his judgment in that case, says, "The inconvenience of asking a witness about particular transactions which he might have been able to explain if he had had reasonable notice that he would be required to do so, would be great--a man does not come into the witness-box prepared to shew that every act of his life has been perfectly pure: and you therefore compel the opposite party to take his answer relative to the matter imputed, as otherwise you might go on to try a collateral issue; and if you were allowed to try the collateral issue of the witness having committed some of fence, you might call witnesses to prove that fact, and they again might likewise be cross-examined as to their own conduct; and so you might go on proving collateral issues without end before you could come to the main (m) Part 3, bk. 1, ch. 1, § 257. (n) 11 Jurist, 478. one. The rules of evidence stop this in the first instance for the more convenient administration of justice; and you must therefore take the witness's answer, and indict inconsistent connected with the proceedings. him for perjury if it is false." 2. By shewing that he 2. Statements has on former occasions made statements inconsistent with his eviwith the evidence he has given. But this is limited dence. to such evidence as is relevant to the cause: for a witness cannot be contradicted on collateral matters (o). 3. By proving misconduct connected with the proceed- 3. Misconduct ings, or other circumstances evincing that he does not stand indifferent between the contending parties (p). Thus it may be proved that a witness has been bribed to give his evidence (7), or has offered bribes to others for that purpose (r), that he has used expressions of animosity and revenge towards the party against whom he testifies (s), &c. We must also direct attention to an observation of Parke, B., in the Attorney-General v. Hitchcock (t). "Under the old law," said his Lordship, "when an objection was raised to the competency of a witness, he might be examined as to it on the voir dire, and evidence might be adduced to contradict his statement; and the issue thus raised was determined by the judge. *** Those objections went to the disability of the witness; but it becomes an important question whether the same course should be adopted now, since Lord Denman's act, 6 & 7 Vict. c. 85, has provided that no (0) 1 Stark. Evid. 189, 3rd Ed.; 2 Ph. Evid. 517, et seq. 10th Ed. (p) There are some authorities to the contrary; but they seem overruled by the Attorney-General v. Hitchcock, 1 Exch. 91, 11 Jur. 478, and the cases there cited, and are indefensible on principle. (q) Langhorn's case, 7 Ho. St. Tr. 446, recognized in R. v. Hitchcock, 1 Exch. 91; 11 Jur. (r) Lord Stafford's case, 7 Ho. (s) Yewin's case, 2 Camp. 638. |