THE DUTIES OF WITNESSES AND JURYMEN.
I am not a young man, and have passed much of my life in our Criminal
Courts. I am, and have been, in active practice at the Bar, and I
believe myself capable of offering some hints toward an improved
administration of justice.
I do not allude to any reform in the law, though I believe much to be
needed. I mean to confine myself to amendments which it is in the power
of the people to make for themselves, and indeed, which no legislature,
however enlightened, can make for them.
In no country can the laws be well administered, where the popular mind
stands at a low point in the scale of intelligence, or where the moral
tone is lax. The latter defect is of course the most important, but it
is so intimately connected with the former, that they commonly prevail
together, and the causes which remove the one, have, almost without
exception, a salutary effect upon the other.
That the general diffusion of morals and intelligence is essential to
the healthy working of jurisprudence in all countries, will be admitted,
when it is recollected that no tribunal, however skillful, can arrive at
the truth by any other way than by the testimony of witnesses, and that
consequently on their trustworthiness the enjoyment of property,
character, and life, must of necessity depend.
Again, wherever trial by jury is established, a further demand arises
for morals and intelligence among the people. It follows then, as a
consequence almost too obvious to justify the remark, that whatever in
any country enlarges and strengthens these great attributes of
civilization, raises its capacity for performing that noblest duty of
social man, the administration of justice.
Let me first speak of witnesses and their testimony. It is sometimes
supposed that the desire to be veracious is the only quality essential
to form a trustworthy witness--and an essential quality it is beyond all
doubt--but it is possessed by many who are nevertheless very unsafe
guides to truth. In the first place, this general desire for truth in a
mind not carefully regulated, is apt to give way, oftentimes
unconsciously, to impressions which overpower habitual veracity. It may
be laid down as a general rule that witnesses are partisans, and that,
often without knowing it, their evidence takes a color from the feeling
of partisanship, which gives it all the injurious effects of willful
falsehood--nay, it is frequently more pernicious. The witness who
knowingly perverts the truth, often betrays his mendicity by his voice,
his countenance, or his choice of words; while the unconscious perverter
gives his testimony with all the force of sincerity. Let the witness who
intends to give evidence worthy of confidence, be on his guard against
the temptations to become a partisan. Witnesses ought to avoid
consorting together on the eve of a trial; still more, discussing the
matters in dispute, and comparing their intended statements. Musicians
have observed that if two instruments, not in exact accordance, are
played together, they have a tendency to run into harmony. Witnesses are
precisely such instruments, and act on each other in like manner.
So much with regard to the moral tone of the witness; but the
difficulties which I have pointed out may be surmounted, and yet leave
his evidence a very distorted narrative of the real facts. Consideration
must be given to the intellectual requirements of a witness. It was the
just remark of Dr. Johnson that complaints of the memory were often
very unjust toward that faculty which was reproached with not retaining
what had never been confided to its care. The defect is not a failure of
memory, but a lack of observation; the ideas have not run out of the
mind--they never went into it.
This is a deficiency, which cannot be dealt with in any special relation
to the subject in hand; it can only be corrected by cultivating a
general habit of observation, which, considering that the dearest
interests of others may be imperiled by errors arising out of the
neglect to observe accurately, must be looked upon in the light of a
duty.
A still greater defect is the absence of the power of distinguishing
fact and inference. Nothing but a long experience in Courts of Justice,
can give a notion of the extent to which testimony is adulterated by
this defect. It is often exemplified in the depositions of witnesses, or
rather in the comparison between the depositions which, as your readers
know, are taken in writing before the committing magistrate, and the
evidence given on the trial.
Circumstances on which the witness had been silent when examined before
the magistrate shortly after the event, make their appearance in his
evidence on the day of trial; so that his memory purports to augment
inaccuracy in proportion to their time which has elapsed since the
transaction of which he speaks!
I have observed this effect produced in a marvelous degree in cases of
new trial, which in civil suits are often awarded, and which frequently
take place years after the event to which they relate. The comparison of
the evidence of the same witness as it stands upon the short-hand
writer's notes of the two trials, would lead an unpracticed reader to
the conclusion that nothing but perjury could account for the
diversities; and this impression would be confirmed, if he should find,
as in all probability he would, that the points on which the latter
memory was better supplied than the earlier, were just those on which
the greatest doubt had prevailed on the former occasion, and which were
made in favor of the party on whose side the witness had been called.
But the critic would be mistaken. The witness was not dishonest, but had
failed to keep watch over the operations of his own mind. He had perhaps
often adverted to the subject, and often discoursed upon it, until at
length he confounded the facts which had occurred, with the inference
which he had drawn from such facts, in establishment of the existence of
others, which had in reality no place except in his own cogitation, but
which after a time took rank in his memory with its original
impressions.
The best safeguard a witness could employ to preserve the unalloyed
memory of transactions, is to commit his narrative to writing, as soon
after the event as he shall have learned that his evidence respecting
them is likely to be required; and yet I can hardly recommend such a
course, because so little is the world, and even that portion of the
world which passes its life in Courts of Justice, acquainted with what
may be called the Philosophy of Evidence, that a conscientious endeavor
of this kind to preserve his testimony in its purity, might draw upon
him the imputation of having fabricated his narrative; and this is the
more probable, because false witnesses have not unfrequently taken
similar means for abiding by their fictions.
It is worthy of note how much these disturbing causes, both moral and
intellectual, fasten upon these portions of evidence which are most
liable to distortion. Words, as contra-distinguished from facts,
exemplify the truth of this position. Every witness ought to feel great
distrust of himself in giving evidence of a conversation. Language, if
it runs to any length, is very liable to be misunderstood, at least in
passages.
But supposing it to be well understood at the moment, the exact wording
of it can rarely be recalled, unless the witness's memory were
tantamount in minuteness and accuracy to the record of a short-hand
writer. He is consequently permitted to give an abstract, or, as it is
usually called, the substance of what occurred. But here a new
difficulty arises; to abstract correctly is an intellectual effort of no
mean order, and is rarely accomplished with a decent approach to
perfection. Let the juryman bear this in mind. He will be often tempted
to rely on alleged confessions of prisoners sworn to by witnesses who
certainly desire to speak the truth. These confessions often go so
straight to the point, that they offer to the juryman a species of
relief from that state of doubt, which, to minds unpracticed in weighing
probabilities, is irksome, almost beyond description. Speaking from the
experience of thirty years, I should pronounce the evidence of words to
be so dangerous in its nature as to demand the utmost vigilance, in all
cases, before it is allowed to influence the verdict to any important
extent.
While I am on the subject of evidence, infirm in its nature, I must not
pass over that of identity of person. The number of persons who resemble
each other is not inconsiderable in itself; but the number is very large
of persons, who, though very distinguishable when standing side by side,
are yet sufficiently alike to deceive those who are without the means of
immediate comparison.
Early in life an occurrence impressed me with the danger of relying on
the most confidential belief of identity. I was at Vauxhall Gardens
where I thought I saw, at a short distance, an old country gentleman
whom I highly respected, and whose favor I should have been sorry to
lose. I bowed to him, but obtained no recognition. In those days the
company amused themselves by walking round in a circle, some in one
direction, some in the opposite, by which every one saw and was seen--I
say, in those days, because I have not been at Vauxhall for a quarter of
a century. In performing these rounds I often met the gentleman, and
tried to attract his attention, until I became convinced that either his
eye-sight was so weakened that he did not know me, or that he chose to
disown my acquaintance. Some time afterward, going into the county in
which he resided, I received, as usual, an invitation to dinner; this
led to an explanation, when my friend assured me he had not been in
London for twenty years. I afterwards met the person whom I had mistaken
for my old friend, and wondered how I could have fallen into the error.
I can only explain it by supposing that, if the mind feels satisfied of
identity, which it often does at the first glance, it ceases to
investigate that question, and occupies itself with other matter; as in
my case, where my thoughts ran upon the motives my friend might have,
for not recognizing me, instead of employing themselves on the question
of whether or no the individual before my eyes was indeed the person I
took him for.
If I had had to give evidence on this matter my mistake would have been
the more dangerous, as I had full means of knowledge. The place was well
lighted, the interviews were repeated, and my mind was undisturbed. How
often have I known evidence of identity acted upon by juries, where the
witness was in a much less favorable position (for correct observation)
than mine.
Sometimes, a mistaken verdict is avoided by independent evidence.
Rarely, however, is this rock escaped, by cross-examination, even when
conducted with adequate skill and experience. The belief of the witness
is belief in a matter of opinion resulting from a combination of facts
so slight and unimportant, separately considered, that they furnish no
handle to the cross-examiner. A striking case of this kind occurs to my
recollection, with which I will conclude.
A prisoner was indicted for shooting at the prosecutor, with intent to
kill him. The prosecutor swore that the prisoner had demanded his money,
and that upon refusal, or delay, to comply with his requisition, he
fired a pistol, by the flash of which his countenance became perfectly
visible; the shot did not take effect, and the prisoner made off. Here
the recognition was momentary, and the prosecutor could hardly have been
in an undisturbed state of mind, yet the confidence of his belief made a
strong impression on all who heard the evidence, and probably would have
sealed the fate of the prisoner without the aid of an additional fact of
very slight importance, which was, however, put in evidence by way of
corroboration, that the prisoner, who was a stranger to the
neighborhood, had been seen passing near the spot in which the attack
was made about noon of the same day. The judge belonged to a class, now,
thank God! obsolete, who always acted on the reverse of the
constitutional maxim, and considered every man guilty, until he was
proved to be innocent.
If the case had closed without witnesses on behalf of the prisoner, his
life would have been gone; fortunately, he possessed the means of
employing an able and zealous attorney, and, more fortunately, it so
happened that several hours before the attack the prisoner had mounted
upon a coach, and was many miles from the scene of the crime at the hour
of its commission.
With great labor, and at considerable expense, all the passengers were
sought out, and with the coachman and guard, were brought into court,
and testified to the presence among them of the prisoner. An _alibi_ is
always a suspected defence, and by no man was ever more suspiciously
watched than by this judge. But then witness after witness appeared,
their names corresponding exactly with the way-bill produced by the
clerk of a respectable coach-office, the most determined scepticism gave
way, and the prisoner was acquitted by acclamation. He was not, however,
saved by his innocence, but by his good fortune. How frequently does it
happen to us all to be many hours at a time without having witnesses to
prove our absence from one spot by our presence at another! And how many
of us are too prone to avail ourselves of such proof in the instances
where it may exist!
A remarkable instance of mistake in identity, which put the life of a
prisoner in extreme peril, I heard from the lips of his counsel. It
occurred at the Special Commission held at Nottingham after the riots
consequent on the rejection of the Reform Bill by the House of Lords, in
1831.
The prisoner was a young man of prepossessing appearance, belonging to
what may be called the lower section of the middle rank of life, being a
frame-work knitter, in the employment of his father, a master
manufacturer in a small way. He was tried on an indictment charging him
with the offence of arson. A mob, of which he was alleged to be one, had
burnt Colwick Hall, near Nottingham, the residence of Mr. Musters, the
husband of Mary Chaworth, whose name is so closely linked with that of
Byron. This ill-fated lady was approaching the last stage of
consumption, when, on a cold and wet evening in autumn, she was driven
from her mansion, and compelled to take refuge among the trees of her
shrubbery--an outrage which probably hastened her death.
The crime with its attendant circumstances, created, as was natural, a
strong sympathy against the criminals. Unhappily, this feeling, so
praiseworthy in itself, is liable to produce a strong tendency in the
public mind to believe in the guilt of the party accused. People
sometimes seem to hunger and thirst after a criminal, and are
disappointed when it turns out that they are mistaken in their man, and
are, consequently, slow to believe that such an error has been made.
Doubtless, the impression is received into the mind unconsciously; but
although on that ground pardonable, it is all the more dangerous. In
this case, the prisoner was identified by several witnesses as having
taken an active part in setting fire to the house.
He had been under their notice for some considerable space of time. They
gave their evidence against him without hesitation, and probably the
slightest doubt of its accuracy. His defence was an _alibi_. The frame
at which he worked had its place near the entrance to the warehouse, the
room frequented by the customers and all who had business to transact at
the manufactory. He acted, therefore, as doorkeeper, and in that
capacity had been seen and spoken with by many persons, who in their
evidence more than covered the whole time which elapsed between the
arrival of the mob at Colwick Hall and its departure. The _alibi_ was
believed, and the prisoner, after a trial which lasted a whole day, was
acquitted.
The next morning he was to be tried again on another indictment,
charging him with having set fire to the Castle of Nottingham. The
counsel for the prosecution, influenced by motives of humanity, and
fully impressed with the prisoner's guilt on both charges, urged the
counsel for the prisoner to advise his client to plead guilty,
undertaking that his life should be spared, but observing at the same
time that his social position, which was superior to that of the other
prisoners, would make it impossible to extend the mercy of the Crown to
him unless he manifested a due sense of his offences by foregoing the
chance of escape. "You know," said they, "how rarely an _alibi_ obtains
credit with a jury. You can have no other defence to-day than that of
yesterday. The Castle is much nearer than Colwick Hall to the
manufactory, and a very short absence from his work on the part of the
prisoner might reconcile the evidence of all the witnesses, both for him
and against him; moreover, who ever heard of a successful _alibi_ twice
running?"
The counsel for the prisoner had his client taken into a room adjoining
the court, and having explained to him the extreme danger in which he
stood, informed him of the offer made by the prosecutors. The young man
evinced some emotion, and asked his counsel to advise what step he
should take. "The advice," he was answered, "must depend upon a fact
known to himself alone--his guilt or innocence. If guilty, his chance of
escape was so small that it would be the last degree of rashness to
refuse the offer; if, on the other hand, he were innocent, his counsel,
putting himself in the place of the prisoner, would say, that no peril,
however imminent, would induce him to plead guilty." The prisoner was
further told, that in the course of a trial circumstances often arose at
the moment, unforeseen by all parties, which disclosed the truth; that
this consideration was in his favor if he were innocent but showed at
the same time that there were now chances of danger, if he were guilty,
the extent of which could not be calculated, nor even surmised. The
youth, with perfect self-possession, and unshaken firmness, replied, "I
am innocent, and will take my trial." He did so. Many painful hours wore
away, every moment diminishing the prisoner's chance of acquittal, until
it seemed utterly extinguished, when some trifling matter which had
escaped the memory of the narrator, occurred, leading him to think it
was possible that another person, who must much resemble the prisoner,
had been mistaken for him. Inquiry was instantly made of the family,
whether they knew of any such resemblance; when it appeared that the
prisoner had a cousin so much like himself that the two were frequently
accosted in the street, the one for the other. The cousin had absconded.
It is hardly credible, though doubtless true, that a family of
respectable station could have been unaware of the importance of such a
fact, or that the prisoner, who appeared not deficient in intelligence,
and who was assuredly in full possession of his faculties, could be
insensible to its value. That either he or they could have placed such
reliance on his defence as to induce them to screen his guilty relative,
is to the last degree improbable, especially as the cousin had escaped.
Witnesses, however, were quickly produced, who verified the resemblance
between the two, and the counsel for the prosecution abandoned their
case, expressing their belief that their witnesses had given their
evidence under a mistake of identity.
The narrator added that an _alibi_ stood a less chance of favorable
reception at Nottingham than elsewhere, although in every place received
with great jealousy. In one of the trials arising out of the outrages
committed by the Luddites, who broke into manufactories and destroyed
all lace frames of a construction which they thought oppressive to
working-men, an _alibi_, he said had been concocted, which was
successful in saving the life of a man notoriously guilty, and which had
therefore added to the disrepute of this species of defence. The
hypothesis was, that the prisoner, at the time when the crime was
committed, at Loughborough, sixteen miles from Nottingham, was engaged
at a supper party at the latter place; and the prisoner having the
sympathy of a large class in his favor, whose battle he had been
fighting, no difficulty was experienced by his friends in finding
witnesses willing to support this hypothesis on their oaths; but it
would have been a rash measure to have called them into the box
unprepared. And when it is considered how readily a preconcerted story
might have been destroyed by cross-examination, the task of preparing
the witnesses so as to elude this test, was one requiring no ordinary
care and skill. The danger would arise thus:--Every witness would be
kept out of court, except the one in the box. He would be asked where he
sat at the supper? where the prisoner sat, and each of the other guests?
what were the dishes, what was the course of conversation, and so
forth--the questions being capable of multiplication _ad infinitum_; so
that however well tutored, the witnesses would inevitably contradict
each other upon some matters, on which the tutor had not foreseen that
the witness would be cross-examined, or to which he had forgotten the
answer prescribed. The difficulty was, however, surmounted. After the
prisoner's apprehension, the selected witnesses were invited to a
mackerel supper, which took place at an hour corresponding to that at
which the crime was committed; and so careful was the ingenious agent
who devised this conspiracy against the truth that, guided by a sure
instinct, he fixed upon the same day of the week as that on which the
crime had been committed, though without knowing how fortunate it would
be for the prisoner that he took this precaution. When, on
cross-examination, it was found that the witnesses agreed as to the
order in which the guests were seated, the contents of the dishes, the
conversation which had taken place, and so forth--the counsel for the
Crown suspected the plot; but not imagining that it had been so
perfectly elaborated, they inquired of their attorneys as to whether
there was any occurrence peculiar to the day of the week in question,
and were told that, upon the evening of such day, a public bell was
always rung, which must have been heard at the supper, if it had taken
place at the time pretended. The witnesses were separately called back
and questioned separately as to the bell. They had all heard it; and
thus not only were the cross-examiners utterly baffled, but the
cross-examination gave ten-fold support to the examination in chief,
that is, to the evidence as given by the witnesses in answer to the
questions put by the prisoner's counsel in his behalf. The triumph of
falsehood was complete. The prisoner was acquitted.
When, however, the attention of prosecutors is called to the possibility
of such fabrications they become less easy of management. The friends of
a prisoner are often known to the police, and may be watched--the actors
may be surprised at the rehearsal; a false ally may be inserted among
them; in short, there are many chances of the plot failing. This,
however, is an age of improvement, and the thirty years which have
elapsed since the days of Luddism have not been a barren period in any
art or science. The mystery of cookery in dishes, accounts, and
_alibis_, has profited by this general advancement.
The latest device which my acquaintance with courts has brought to my
knowledge is an _alibi_ of a very refined and subtle nature. The
hypothesis is, that the prisoner was walking from point A to point Z,
along a distant road, at the hour when the crime was committed. The
witnesses are supposed each to see him, and some to converse with him,
at points which may be indicated by many or all the letters of the
alphabet. Each witness must be alone when he sees him, so that no two
may speak to what occurred at the same spot or moment of time; but,
with this reservation, each may safely indulge his imagination with any
account of the interview which he has wit to make consistent with
itself, and firmness to abide by, under the storm of a cross-examination.
"The force of _falsehood_ can no farther go." No rehearsal is necessary.
Neither of the witnesses needs know of the existence of the others. The
agent gives to each witness the name of the spot at which he is to place
the prisoner. The witness makes himself acquainted with that spot, so as
to stand a cross-examination as to the surrounding objects, and his
education is complete. But as panaceas have only a fabulous existence,
so this exquisite _alibi_ is not applicable to all cases; the witness
must have a reason for being on the spot, plausible enough to foil the
skill of the cross-examiner; and, as false witnesses cannot be found at
every turn, the difficulty of making it accord with the probability that
the witness was where he pretends to have been on the day and at the
hour in question is often insuperable, to say nothing of the possibility
and probability of its being clearly established, on the part of the
prosecution, that the prisoner could not have been there. I should add,
that, except in towns of the first magnitude, it must be difficult to
find mendacious witnesses who have in other respects the proper
qualifications to prove a concocted _alibi_, save always where the
prisoner is the champion of a class; and then, according to my
experience--sad as the avowal is--the difficulty is greatly reduced.
These incidents illustrate the soundness of the well-known proposition,
that mixture of truth with falsehood, augments to the highest degree the
noxious power of the venomous ingredient. That man was no mean
proficient in the art of deceiving, who first discovered the importance
of the liar being parsimonious in mendacity. The mind has a stomach as
well as an eye, and if the bolus be neat falsehood, it will be rejected
like an over-dose of arsenic which does not kill.
Let the juryman ponder these things, and beware how he lets his mind
lapse into a conclusion either for or against the prisoner. To perform
the duties of his office, so that the days which he spends in the
jury-box will bear retrospection, his eye, his ears, and his intellect,
must be ever on the watch. A witness in the box, and the same man in
common life, are different creatures. Coming to give evidence, "he doth
suffer a law change." Sometimes he becomes more truthful, as he ought to
do, if any change is necessary; but unhappily this is not always so, and
least of all in the case of those whose testimony is often required.
I remember a person, whom I frequently heard to give evidence quite out
of harmony with the facts; but I shall state neither his name nor his
profession. A gentleman who knew perfectly well the unpalatable
designation which his evidence deserved, told me of his death. I
ventured to think it was a loss which might be borne, and touched upon
his infirmity, to which my friend replied in perfect sincerity of heart,
"Well! after all, I do not think he ever told a falsehood in his
life--_out of the witness' box_!"