Part XVII.
THE DUTIES OF WITNESSES AND JURYMEN.
I am not a young man, and have passed much of my life in our CriminalCourts. I am, and have been, in active practice at the Bar, and Ibelieve myself capable of offering some hints toward an improvedadministration of justice.
I do not allude to any reform in the law, though I believe much to beneeded. I mean to confine myself to amendments which it is in the powerof 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 mindstands at a low point in the scale of intelligence, or where the moraltone is lax. The latter defect is of course the most important, but itis so intimately connected with the former, that they commonly prevailtogether, and the causes which remove the one, have, almost withoutexception, a salutary effect upon the other.
That the general diffusion of morals and intelligence is essential tothe healthy working of jurisprudence in all countries, will be admitted,when it is recollected that no tribunal, however skillful, can arrive atthe truth by any other way than by the testimony of witnesses, and thatconsequently on their trustworthiness the enjoyment of property,character, and life, must of necessity depend.
Again, wherever trial by jury is established, a further demand arisesfor morals and intelligence among the people. It follows then, as aconsequence almost too obvious to justify the remark, that whatever inany country enlarges and strengthens these great attributes ofcivilization, raises its capacity for performing that noblest duty ofsocial man, the administration of justice.
Let me first speak of witnesses and their testimony. It is sometimessupposed that the desire to be veracious is the only quality essentialto form a trustworthy witness--and an essential quality it is beyond alldoubt--but it is possessed by many who are nevertheless very unsafeguides to truth. In the first place, this general desire for truth in amind not carefully regulated, is apt to give way, oftentimesunconsciously, to impressions which overpower habitual veracity. It maybe laid down as a general rule that witnesses are partisans, and that,often without knowing it, their evidence takes a color from the feelingof partisanship, which gives it all the injurious effects of willfulfalsehood--nay, it is frequently more pernicious. The witness whoknowingly perverts the truth, often betrays his mendicity by his voice,his countenance, or his choice of words; while the unconscious pervertergives his testimony with all the force of sincerity. Let the witness whointends to give evidence worthy of confidence, be on his guard againstthe temptations to become a partisan. Witnesses ought to avoidconsorting together on the eve of a trial; still more, discussing thematters in dispute, and comparing their intended statements. Musicianshave observed that if two instruments, not in exact accordance, areplayed together, they have a tendency to run into harmony. Witnesses areprecisely such instruments, and act on each other in like manner.
So much with regard to the moral tone of the witness; but thedifficulties which I have pointed out may be surmounted, and yet leavehis evidence a very distorted narrative of the real facts. Considerationmust be given to the intellectual requirements of a witness. It was thejust remark of Dr. Johnson that complaints of the memory were oftenvery unjust toward that faculty which was reproached with not retainingwhat had never been confided to its care. The defect is not a failure ofmemory, but a lack of observation; the ideas have not run out of themind--they never went into it.
This is a deficiency, which cannot be dealt with in any special relationto the subject in hand; it can only be corrected by cultivating ageneral habit of observation, which, considering that the dearestinterests of others may be imperiled by errors arising out of theneglect to observe accurately, must be looked upon in the light of aduty.
A still greater defect is the absence of the power of distinguishingfact and inference. Nothing but a long experience in Courts of Justice,can give a notion of the extent to which testimony is adulterated bythis defect. It is often exemplified in the depositions of witnesses, orrather in the comparison between the depositions which, as your readersknow, are taken in writing before the committing magistrate, and theevidence given on the trial.
Circumstances on which the witness had been silent when examined beforethe magistrate shortly after the event, make their appearance in hisevidence on the day of trial; so that his memory purports to augmentinaccuracy in proportion to their time which has elapsed since thetransaction of which he speaks!
I have observed this effect produced in a marvelous degree in cases ofnew trial, which in civil suits are often awarded, and which frequentlytake place years after the event to which they relate. The comparison ofthe evidence of the same witness as it stands upon the short-handwriter's notes of the two trials, would lead an unpracticed reader tothe conclusion that nothing but perjury could account for thediversities; and this impression would be confirmed, if he should find,as in all probability he would, that the points on which the lattermemory was better supplied than the earlier, were just those on whichthe greatest doubt had prevailed on the former occasion, and which weremade 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 hadfailed to keep watch over the operations of his own mind. He had perhapsoften adverted to the subject, and often discoursed upon it, until atlength he confounded the facts which had occurred, with the inferencewhich he had drawn from such facts, in establishment of the existence ofothers, which had in reality no place except in his own cogitation, butwhich after a time took rank in his memory with its originalimpressions.
The best safeguard a witness could employ to preserve the unalloyedmemory of transactions, is to commit his narrative to writing, as soonafter the event as he shall have learned that his evidence respectingthem is likely to be required; and yet I can hardly recommend such acourse, because so little is the world, and even that portion of theworld which passes its life in Courts of Justice, acquainted with whatmay be called the Philosophy of Evidence, that a conscientious endeavorof this kind to preserve his testimony in its purity, might draw uponhim the imputation of having fabricated his narrative; and this is themore probable, because false witnesses have not unfrequently takensimilar means for abiding by their fictions.
It is worthy of note how much these disturbing causes, both moral andintellectual, fasten upon these portions of evidence which are mostliable to distortion. Words, as contra-distinguished from facts,exemplify the truth of this position. Every witness ought to feel greatdistrust of himself in giving evidence of a conversation. Language, ifit runs to any length, is very liable to be misunderstood, at least inpassages.
But supposing it to be well understood at the moment, the exact wordingof it can rarely be recalled, unless the witness's memory weretantamount in minuteness and accuracy to the record of a short-handwriter. He is consequently permitted to give an abstract, or, as it isusually called, the substance of what occurred. But here a newdifficulty arises; to abstract correctly is an intellectual effort of nomean order, and is rarely accomplished with a decent approach toperfection. Let the juryman bear this in mind. He will be often temptedto rely on alleged confessions of prisoners sworn to by witnesses whocertainly desire to speak the truth. These confessions often go sostraight to the point, that they offer to the juryman a species ofrelief from that state of doubt, which, to minds unpracticed in weighingprobabilities, is irksome, almost beyond description. Speaking from theexperience of thirty years, I should pronounce the evidence of words tobe so dangerous in its nature as to demand the utmost vigilance, in allcases, before it is allowed to influence the verdict to any importantextent.
While I am on the subject of evidence, infirm in its nature, I must notpass over that of identity of person. The number of persons who resembleeach other is not inconsiderable in itself; but the number is very largeof persons, who, though very distinguishable when standing side by side,are yet sufficiently alike to deceive those who are without the mean
s ofimmediate comparison.
Early in life an occurrence impressed me with the danger of relying onthe most confidential belief of identity. I was at Vauxhall Gardenswhere I thought I saw, at a short distance, an old country gentlemanwhom I highly respected, and whose favor I should have been sorry tolose. I bowed to him, but obtained no recognition. In those days thecompany amused themselves by walking round in a circle, some in onedirection, some in the opposite, by which every one saw and was seen--Isay, in those days, because I have not been at Vauxhall for a quarter ofa century. In performing these rounds I often met the gentleman, andtried to attract his attention, until I became convinced that either hiseye-sight was so weakened that he did not know me, or that he chose todisown my acquaintance. Some time afterward, going into the county inwhich he resided, I received, as usual, an invitation to dinner; thisled to an explanation, when my friend assured me he had not been inLondon for twenty years. I afterwards met the person whom I had mistakenfor 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 ofidentity, which it often does at the first glance, it ceases toinvestigate that question, and occupies itself with other matter; as inmy case, where my thoughts ran upon the motives my friend might have,for not recognizing me, instead of employing themselves on the questionof whether or no the individual before my eyes was indeed the person Itook him for.
If I had had to give evidence on this matter my mistake would have beenthe more dangerous, as I had full means of knowledge. The place was welllighted, the interviews were repeated, and my mind was undisturbed. Howoften have I known evidence of identity acted upon by juries, where thewitness 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 whenconducted with adequate skill and experience. The belief of the witnessis belief in a matter of opinion resulting from a combination of factsso slight and unimportant, separately considered, that they furnish nohandle to the cross-examiner. A striking case of this kind occurs to myrecollection, with which I will conclude.
A prisoner was indicted for shooting at the prosecutor, with intent tokill him. The prosecutor swore that the prisoner had demanded his money,and that upon refusal, or delay, to comply with his requisition, hefired a pistol, by the flash of which his countenance became perfectlyvisible; the shot did not take effect, and the prisoner made off. Herethe recognition was momentary, and the prosecutor could hardly have beenin an undisturbed state of mind, yet the confidence of his belief made astrong impression on all who heard the evidence, and probably would havesealed the fate of the prisoner without the aid of an additional fact ofvery slight importance, which was, however, put in evidence by way ofcorroboration, that the prisoner, who was a stranger to theneighborhood, had been seen passing near the spot in which the attackwas made about noon of the same day. The judge belonged to a class, now,thank God! obsolete, who always acted on the reverse of theconstitutional maxim, and considered every man guilty, until he wasproved to be innocent.
If the case had closed without witnesses on behalf of the prisoner, hislife would have been gone; fortunately, he possessed the means ofemploying an able and zealous attorney, and, more fortunately, it sohappened that several hours before the attack the prisoner had mountedupon a coach, and was many miles from the scene of the crime at the hourof its commission.
With great labor, and at considerable expense, all the passengers weresought out, and with the coachman and guard, were brought into court,and testified to the presence among them of the prisoner. An _alibi_ isalways a suspected defence, and by no man was ever more suspiciouslywatched than by this judge. But then witness after witness appeared,their names corresponding exactly with the way-bill produced by theclerk of a respectable coach-office, the most determined scepticism gaveway, and the prisoner was acquitted by acclamation. He was not, however,saved by his innocence, but by his good fortune. How frequently does ithappen to us all to be many hours at a time without having witnesses toprove our absence from one spot by our presence at another! And how manyof us are too prone to avail ourselves of such proof in the instanceswhere it may exist!
A remarkable instance of mistake in identity, which put the life of aprisoner in extreme peril, I heard from the lips of his counsel. Itoccurred at the Special Commission held at Nottingham after the riotsconsequent on the rejection of the Reform Bill by the House of Lords, in1831.
The prisoner was a young man of prepossessing appearance, belonging towhat may be called the lower section of the middle rank of life, being aframe-work knitter, in the employment of his father, a mastermanufacturer in a small way. He was tried on an indictment charging himwith the offence of arson. A mob, of which he was alleged to be one, hadburnt Colwick Hall, near Nottingham, the residence of Mr. Musters, thehusband of Mary Chaworth, whose name is so closely linked with that ofByron. This ill-fated lady was approaching the last stage ofconsumption, when, on a cold and wet evening in autumn, she was drivenfrom her mansion, and compelled to take refuge among the trees of hershrubbery--an outrage which probably hastened her death.
The crime with its attendant circumstances, created, as was natural, astrong sympathy against the criminals. Unhappily, this feeling, sopraiseworthy in itself, is liable to produce a strong tendency in thepublic mind to believe in the guilt of the party accused. Peoplesometimes seem to hunger and thirst after a criminal, and aredisappointed when it turns out that they are mistaken in their man, andare, consequently, slow to believe that such an error has been made.Doubtless, the impression is received into the mind unconsciously; butalthough on that ground pardonable, it is all the more dangerous. Inthis case, the prisoner was identified by several witnesses as havingtaken an active part in setting fire to the house.
He had been under their notice for some considerable space of time. Theygave their evidence against him without hesitation, and probably theslightest doubt of its accuracy. His defence was an _alibi_. The frameat which he worked had its place near the entrance to the warehouse, theroom frequented by the customers and all who had business to transact atthe manufactory. He acted, therefore, as doorkeeper, and in thatcapacity had been seen and spoken with by many persons, who in theirevidence more than covered the whole time which elapsed between thearrival of the mob at Colwick Hall and its departure. The _alibi_ wasbelieved, and the prisoner, after a trial which lasted a whole day, wasacquitted.
The next morning he was to be tried again on another indictment,charging him with having set fire to the Castle of Nottingham. Thecounsel for the prosecution, influenced by motives of humanity, andfully impressed with the prisoner's guilt on both charges, urged thecounsel for the prisoner to advise his client to plead guilty,undertaking that his life should be spared, but observing at the sametime that his social position, which was superior to that of the otherprisoners, would make it impossible to extend the mercy of the Crown tohim unless he manifested a due sense of his offences by foregoing thechance of escape. "You know," said they, "how rarely an _alibi_ obtainscredit with a jury. You can have no other defence to-day than that ofyesterday. The Castle is much nearer than Colwick Hall to themanufactory, and a very short absence from his work on the part of theprisoner might reconcile the evidence of all the witnesses, both for himand against him; moreover, who ever heard of a successful _alibi_ twicerunning?"
The counsel for the prisoner had his client taken into a room adjoiningthe court, and having explained to him the extreme danger in which hestood, informed him of the offer made by the prosecutors. The young manevinced some emotion, and asked his counsel to advise what step heshould take. "The advice," he was answered, "must depend upon a factknown to himself alone--his guilt or innocence. If guilty, his chance ofescape was so small that it would be the last degree of rashness torefuse 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 wasfurther told, that in the course of a trial circumstances often arose atthe moment, unforeseen by all parties, which disclosed the truth; thatthis consideration was in his favor if he were innocent but showed atthe same time that there were now chances of danger, if he were guilty,the extent of which could not be calculated, nor even surmised. Theyouth, with perfect self-possession, and unshaken firmness, replied, "Iam innocent, and will take my trial." He did so. Many painful hours woreaway, every moment diminishing the prisoner's chance of acquittal, untilit seemed utterly extinguished, when some trifling matter which hadescaped the memory of the narrator, occurred, leading him to think itwas 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 theprisoner had a cousin so much like himself that the two were frequentlyaccosted in the street, the one for the other. The cousin had absconded.
It is hardly credible, though doubtless true, that a family ofrespectable station could have been unaware of the importance of such afact, or that the prisoner, who appeared not deficient in intelligence,and who was assuredly in full possession of his faculties, could beinsensible to its value. That either he or they could have placed suchreliance 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 resemblancebetween the two, and the counsel for the prosecution abandoned theircase, expressing their belief that their witnesses had given theirevidence under a mistake of identity.
The narrator added that an _alibi_ stood a less chance of favorablereception at Nottingham than elsewhere, although in every place receivedwith great jealousy. In one of the trials arising out of the outragescommitted by the Luddites, who broke into manufactories and destroyedall lace frames of a construction which they thought oppressive toworking-men, an _alibi_, he said had been concocted, which wassuccessful in saving the life of a man notoriously guilty, and which hadtherefore added to the disrepute of this species of defence. Thehypothesis was, that the prisoner, at the time when the crime wascommitted, at Loughborough, sixteen miles from Nottingham, was engagedat a supper party at the latter place; and the prisoner having thesympathy of a large class in his favor, whose battle he had beenfighting, no difficulty was experienced by his friends in findingwitnesses willing to support this hypothesis on their oaths; but itwould have been a rash measure to have called them into the boxunprepared. And when it is considered how readily a preconcerted storymight have been destroyed by cross-examination, the task of preparingthe witnesses so as to elude this test, was one requiring no ordinarycare and skill. The danger would arise thus:--Every witness would bekept out of court, except the one in the box. He would be asked where hesat at the supper? where the prisoner sat, and each of the other guests?what were the dishes, what was the course of conversation, and soforth--the questions being capable of multiplication _ad infinitum_; sothat however well tutored, the witnesses would inevitably contradicteach other upon some matters, on which the tutor had not foreseen thatthe witness would be cross-examined, or to which he had forgotten theanswer prescribed. The difficulty was, however, surmounted. After theprisoner's apprehension, the selected witnesses were invited to amackerel supper, which took place at an hour corresponding to that atwhich the crime was committed; and so careful was the ingenious agentwho devised this conspiracy against the truth that, guided by a sureinstinct, he fixed upon the same day of the week as that on which thecrime had been committed, though without knowing how fortunate it wouldbe for the prisoner that he took this precaution. When, oncross-examination, it was found that the witnesses agreed as to theorder in which the guests were seated, the contents of the dishes, theconversation which had taken place, and so forth--the counsel for theCrown suspected the plot; but not imagining that it had been soperfectly elaborated, they inquired of their attorneys as to whetherthere 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 wasalways rung, which must have been heard at the supper, if it had takenplace at the time pretended. The witnesses were separately called backand questioned separately as to the bell. They had all heard it; andthus not only were the cross-examiners utterly baffled, but thecross-examination gave ten-fold support to the examination in chief,that is, to the evidence as given by the witnesses in answer to thequestions put by the prisoner's counsel in his behalf. The triumph offalsehood was complete. The prisoner was acquitted.
When, however, the attention of prosecutors is called to the possibilityof such fabrications they become less easy of management. The friends ofa prisoner are often known to the police, and may be watched--the actorsmay be surprised at the rehearsal; a false ally may be inserted amongthem; in short, there are many chances of the plot failing. This,however, is an age of improvement, and the thirty years which haveelapsed since the days of Luddism have not been a barren period in anyart 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 myknowledge is an _alibi_ of a very refined and subtle nature. Thehypothesis is, that the prisoner was walking from point A to point Z,along a distant road, at the hour when the crime was committed. Thewitnesses 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 thealphabet. Each witness must be alone when he sees him, so that no twomay speak to what occurred at the same spot or moment of time; but,with this reservation, each may safely indulge his imagination with anyaccount of the interview which he has wit to make consistent withitself, 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. Theagent gives to each witness the name of the spot at which he is to placethe prisoner. The witness makes himself acquainted with that spot, so asto stand a cross-examination as to the surrounding objects, and hiseducation is complete. But as panaceas have only a fabulous existence,so this exquisite _alibi_ is not applicable to all cases; the witnessmust have a reason for being on the spot, plausible enough to foil theskill of the cross-examiner; and, as false witnesses cannot be found atevery turn, the difficulty of making it accord with the probability thatthe witness was where he pretends to have been on the day and at thehour in question is often insuperable, to say nothing of the possibilityand probability of its being clearly established, on the part of theprosecution, that the prisoner could not have been there. I should add,that, except in towns of the first magnitude, it must be difficult tofind mendacious witnesses who have in other respects the properqualifications to prove a concocted _alibi_, save always where theprisoner is the champion of a class; and then, according to myexperience--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 thenoxious power of the venomous ingredient. That man was no meanproficient in the art of deceiving, who first discovered the importanceof the liar being parsimonious in mendacity. The mind has a stomach aswell as an eye, and if the bolus be neat falsehood, it will be rejectedlike an over-dose of arsenic which does not kill.
Let the juryman ponder these things, and beware how he lets his mindlapse into a conclusion either for or against the prisoner. To performthe duties of his office, so that the days which he spends in thejury-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 incommon life, are different creatures. Coming to give evidence, "he dothsuffer a law change." Sometimes he becomes more truthful, as he ought todo, if any change is necessary; but unhappily this is not always so, andleast of all in the case of those whose
testimony is often required.
I remember a person, whom I frequently heard to give evidence quite outof harmony with the facts; but I shall state neither his name nor hisprofession. A gentleman who knew perfectly well the unpalatabledesignation which his evidence deserved, told me of his death. Iventured to think it was a loss which might be borne, and touched uponhis infirmity, to which my friend replied in perfect sincerity of heart,"Well! after all, I do not think he ever told a falsehood in hislife--_out of the witness' box_!"