CROSS-EXAMINATION.

Temuka Leader, Volume 2, Issue 124, 26 February 1879, Page 3

CROSS-EXAMINATION.

The abuse of the liberty of crossexamination ought to be prevented, provided it can be done without interference with the beneficial freedom of the advocate. Wo do not hesitate to say that the prevailing licence of cross-ex-amination has become a means of extortion and for screening the wrong-doer. We do not blame the profession. True, the honorable lawyer will seek for victory per fas only, and not per nefas , but what the law allows he is bound to do for his client. When the litigant tells his solicitor how the testimony of this or that witness can be discredited, the solicitor is not free to say, “ I object on moral grounds to damage the hostile witness in the way you suggest.” The solicitor ujnler a professional obligation to do all that is lawful for his client, though that does not exclude an attempt to mislead the Court. The counsel must act on the instructions of his brief, except so far as he is of opinion that lie should disregard them in the interest of the client. He is instructed to disparage or even break down the testimony of a hostile witness by questions which have no relevancy to the action being tried, and bn is under professional obligation to do so. Therefore we have come to

i tiiis pars, that every man or woman who ■ out rs the witness-box, whether a party to the action or otherwise, is liable to have any incident of his or her past life presented in the most odious light in the course of cross-examination. A merchant happens to see a collision between two carriages, and he is subpoenaed to give evidence. He is asked if he has ever been bankrupt. He is shocked and confused, for twenty years before he was a bankrupt, though he has long ago regained his position and paid all his debts. A woman who is foully libelled seeks legal redress, and is asked in crossexamination whether when she was a girl she did not go to the play with Captain Blank without the permission of her parents. An aged clergyman is in the witness-box to defend his character from the slander that he is a drunkard, and he is asked whether he lias ever been charged with an offence before a magistrate. Perhaps forty years ago he was charged with riotous conduct on Guy Fawkes Day and was fined 2s. fid. and costs. A witness in a civil action, who had no interest whatever in the result, was asked if he had ever been in prison. It was pitiable to behold the horror and dismay of the witness. When a young man he had been convicted of fraud. For a minute he was speechless, and then said, “ Yes, but it was many years ago, and oh, my God, I never thought my children would hear of their father’s shame!” The foregoing examples will suffice, and any practising common-law barrister could cite scores of instances of such cruel torture in the witness-box. What are. the consequences ? Some of the worst and most despicable miscreants that infest society levy black-mail with impunity on those who at some time in their lives have done something that they would rather die than publicly confess. Some men and women bear with wicked libelling and slandering rather than go into the witness-box to be questioned by the hostile counsel about all their past lives. Also we are persuaded that very often perfectly good testimony is rejected by the jury on account of the irrevalcnt cross-examina-tion. It seems to us that cross-examination shsuld be restricted to questions touching the matter before the Court, and to questions that really go to the root of the witness’s credibility. The excuse for asking about the past life of the witness is to test credibility ; but surely there ought lobe some well-defined limitations. A conviction for perjury may fairly be held ever after to disparage the credibility of the person, but surely for other offences there should be limit as to time. Surely it would not unduly interfere with the liberty of cross-examination if no question could be asksd as to any conviction or charge after the lapse ot seven years ? In all other matters no question should be asked that merely has regard to the moral or social reputation of the witness, unless it has some bearing upon credibility. How can it affect the credibility of a witness in an action about a builders’ conti act, whether lie was or was not ten years ago a co-respondent in a divorce suit ? The evil of the license of cross-examination is so great and grievous, that unless it is speedily abated public opinion will demand the drastic remedy of an Act of Parliament. Indeed, we know of no other remedy for the judges are the interpreters and administrators of the law, and not law-makers, and therefore though they may exert themselves to the utmost to keep crossexamination within something like due bounds, it would be ultra vires for them to prohibit questions that are irrelevant to the issue being tried and also irrelevant to the question of the witness’s credibility, because custom has made the objectionable practice lawful. Yet it is manifest that such limitations to crossexamination are equally just and expedient.—London.