If, in making his disastrous cross-examinations, my friend, this King's Counsel, had been a little less susceptible to the plaudits of the crowd, and a little more susceptible to improvement, he should have sat down with a depressed rather than a confident air. Had he done so there might have been some hope for him; it might have driven him to sight the reefs upon. which he had so often rent his forensic barque; he might have discerned their dangers from afar; he might have remarked that it is not wise in crossexamination, any more than in some other things, to follow the line of least resistance; he might have evolved and laid to heart that fundamental precept of all real cross-examiners, that it is not upon what you do, but upon what you do not do, that safety and success more often in the first place depend. He should have learned not to start in by taking a witness again over his examination-in-chief, when, facilitated by his own privilege of asking leading questions, he might cause the witness to state new facts against him, or to state in a more potent and destructive form facts which the witness had already given in chief. He should have learned to take pause and to desist before he asked questions the answers to which might prove conclusively adverse to his case. He should have learned not to cross-examine upon new matter which his adversary might develop against him on reexamination, but which must remain forever closed against that same adversary were it not so opened.

This King's Counsel's experiences remind me of a story which was told me by a Philadelphia lawyer, who said that he had got it one day when he was in Washington and happened upon a group of lawyer senators who were discussing the dangers of crossexamination. One of them said he had started practice in Indiana, and his first criminal defence was that of a farm laborer who was charged with unlawfully wounding his employer. It seems that the accused and his employer had gone out to a field with sickles

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to cut standing corn. After working for awhile they got into an altercation, and, dropping their sickles, proceeded to fight. A clinch followed, in which the accused threw his employer to the ground, and when the latter got up his right ear was badly lacerated and a bit of it was missing, hence the charge.

The young advocate conceived the bright and wholly commendable idea that the complainant in falling had struck his ear on the sharp stubs of the corn stalks which had been cut, and which projected from the ground. So he decided to adopt this explanation as the theory of his client's defence. The complainant gave his evidence in chief quietly and without sign of vindictiveness; he simply said that he and the accused had got into a fight, and that the accused had hurt his The prospect looked most encouraging, so the young advocate started in.

ear.

"You were cutting corn when this thing happened?" "Yes."

There were a good many corn stubs standing in the ground around?" "Yes."

"Those corn stubs were very sharp and hard?" "Yes."

"In fact, if, when falling, you had struck one of those corn stubs, it might have hurt your ear?" "Yes."

"Well, now, will you tell me how you know it was not one of those corn stubs that did hurt your ear?" "Well," says the complainant, "I know, because when I was getting up I saw the accused open his mouth and spit that bit of my ear on the ground."

My informant said that the vividness with which the Senator told his story showed its lesson had not been lost on him.

How often one sees counsel hanging on every word of his opponent's cross-examination, watching and longing for an opening which will let him get some choice bit in, usually a conversation. Counsel for the defendant, say, without looking ahead, asks a witness

for the plaintiff if he didn't have a conversation with the plaintiff on a certain occasion. The witness says yes. Counsel then asks him something which was said in the course of such conversation. The witness states it. The statement is often of little or no importance, and counsel passes on. This is probably the very opening which the plaintiff's counsel has been looking for. He has been unable to refer to this conversation on his examination-in-chief because the defendant was not present at it. On re-examination, however, he can ask the witness all about it, and will probably bring out something which will so go to confirm the plaintiff's testimony as to enable him to sustain the onus of proof, with the result that the defendant may lose his case.

This seems such an obvious danger when so stated, and yet it is encouraged by counsel far too often. To avoid such dangers the only safe attitude of mind for the cross-examiner to adopt is, not merely how much good is this inquiry going to do me, but how much harm may possibly follow.

It may be remarked that the dangers of crossexamination are not always exemplified by a witness who happens to be an astute man of affairs, but just as often by the young and inexperienced. You may have seen an incident published by one of the newspapers which illustrates this. A boy of ten years of age was being cross-examined by counsel who questioned him in this wise:

"Have you any occupation?" "No."

"Don't you do any work of any kind?" "No." "Just loaf around?" "That's about all." "What does your father do?" "Nothing much."

"Doesn't he do anything to support the family?" "He does odd jobs once in a while when he can get them."

"As a matter of fact, isn't your father a worthless fellow?" "I don't know, sir, you had better ask him. He is sitting over there on the jury."

Having touched on some of the dangers to be avoided, what then, are the cross-examiner's proper objectives? First and foremost, not to begin by endeavouring to impair the credibility of the opposing witnesses, but to try and use them to establish the foundations of his own case. This cardinal principle was first emphasized by Mr. Sergeant Scarlett, afterwards Lord Abinger, one of the greatest advocates of all time, who says in his "Autobiography," "I cross-examined in general very little, and more with a view to enforce the facts which I meant to rely on, than to affect the witness's credit, for the most part a vain attempt." Mr. Sergeant Ballantine, in his "Experiences," speaks to the same effect. He says,

"The object of cross-examination is not to produce startling effects, but to elicit facts which will support the theory intended to be put forward."

I have been making a habit of watching the application of this principle from the vantage point of the Bench, and my conclusion is that counsel who employ it make ground many times for every once they do when they proceed by attacking the credibility of the witnesses. One signal advantage of this method is that the cross-examiner does not have to shatter his adversary's case, but, by taking it so far as it goes, and by adding something more to it, by way of explanation or qualification, he may successfully avoid the consequences of it. Another advantage of it is that it helps to preclude your adversary from attacking the foundations of your own conclusions, since those foundations lie within the evidence given by his own witnesses.

As a result of pursuing this objective where possible, counsel should, at the conclusion of his crossexamination of the opposing witnesses, have a mental picture of the position of his own case as that of the concrete footings for a new building with rods projecting upon which may be imposed and perfectly fitted the superstructure of his own proofs.

The second objective of the cross-examiner should be to disclose the unreliability of the adverse witnesses in those cases in which the Court cannot make its findings without determining who are trustworthy and who are not. This does not necessarily mean, as so many seem to think, that some of the witnesses are lying. The number of cases in which witnesses deliberately tell what they know to be untrue is comparatively small. It means rather that these witnesses are mistaken. In order to detect such mistakes, it is well to view the adverse witnesses objectively, as so many instruments of evidence or human documents, capable of receiving, retaining, and giving off impressions; much more fallible and less reliable than ordinary documents, it is true, but none the less capable of being read with a fair degree of accuracy by one who possesses some insight into the operation of the physical senses, and has some understanding of human nature. Viewing adverse witnesses, then, as so many human documents, how do they receive their impressions? Ordinary documents receive theirs through the medium of pen or pencil; the witness receives his through his physical senses. Here, then, may be the first opening for an attack upon his reliability. What was the condition of his physical senses at the time about which he testifies? That the defective operation of the physical senses may effectually prevent a witness from acquiring exact impressions of an action or event is self-evident. Every witness therefore who professes to have seen or heard or otherwise to have had physical apprehension of an object may well be doubted until the soundness of the sense employed has been established.

Again, what previous preparation or training has the human document had to enable him to take impressions of the things about which he has assumed to testify? Ordinary documents require preparation of material or surface to be ready for pen or pencil. Likewise a witness requires some previous familiarity or acquaintance with the object which he apprehends