To the layman this is absurd. The defendant should have shown the receipt in the first place and all the waste time of the trial would have been saved. "No," says the technical lawyer, "if I had disclosed my evidence before, the plaintiff would have framed his evidence to meet the situation." The modern view is otherwise. In France, for instance, no paper can be offered in evidence on a trial unless it has been shown to the attorney for the other side beforehand and everyone has had a chance to examine it. Indeed, this exhibition of original doc.u.ments is conducted in so open and honest a fashion that it is customary to send all the original papers to the other side without even taking a receipt or retaining a copy and in the whole history of the French bar the loss of such a paper has never been known.

It seems more practical and sensible that the lawyers for the defendant should be required to state the nature and detail the facts of his defense. It is the difference between the old idea of trial and the new. The first was an imitation battle, the new idea is not that it is so much a struggle as an investigation of the facts. If the plaintiff wants to meet the receipt he can make a counter-attack or explanation in the reb.u.t.tal and explain how he came to sign the receipt in full. The judge and the jury feel the necessary element of the trial is to arrive at the facts and that the planning and methods of charge and counter-charge are not so significant. The old conception of the trial as a battle is disappearing.

The opening by the defendant at the beginning directly after the plaintiff has finished his opening and before a witness is called, makes the trial simpler to the minds of the jurymen who are to decide the facts. The pleadings are supposed to define and state the issues but as they are usually technical they have become not sufficiently pliable. The defendant by his answer denies merely the facts stated in the plaintiff's complaint in the paragraphs numbered six, eight, and ten. The defendant on his opening should be compelled to make plain to the minds of the jury what he intends to show. He should take the position of a plain business man who says, These foolish people imagine they have a claim against me. They have nothing of the kind.

The plaintiff says that he understood the contract to be so and so and that acting on that a.s.sumption both parties did certain things and know the defendant with evil intent and wrongfully forgetting the duty he owes to keep his word refuses to live up to his agreement, therefore, "Gentlemen, we have been compelled to come to court and bring this action and we shall show you gentlemen facts from which you must find a verdict in our favor." The defendant then arises and says:

"Gentlemen, we are going to show a letter that contradicts all this."

Oratory has little place in the opening of the defendant.

The judge has been, during the two openings, attempting to keep the two counsels down to the facts which he thinks may be proved and from wandering too far afield. As quickly as they are both through he says, "Call your first witness," and with trepidation the witness takes the stand.

X

THE CONFUSED WITNESS

The whole question as to witnesses is whether they shall be allowed to tell what they want or what the lawyers want. As they are both in the court-room they must abide by the rules of the court. That is the trouble: the rules are against the witness.

When the witness goes on the stand for the first time the court attendant asks her to raise her right hand. She does so and tries to sit down in the witness chair so that she may feel a little more at ease. "Stand up," says the officer. The judge looks at her inquisitorially over his spectacles. She tries to smile and regains her feet. "Raise your hand," says the judge. The delightful and sanitary custom of kissing the Bible has been done away with. Even the habit of resting the hand on the Book is disappearing and in many courts a Bible is hard to find.

The lady, in the confusion of appearing on a stage for the first time and standing on a raised platform before an audience, holds up her left hand. The court attendant jumps at her. The judge has seen the same performance many times before and hardly notices the _contretemps_. By this time she is confused and ruffled and after hearing something murmured about the truth, the whole truth, and nothing but the truth, she sinks into the chair and begins in a very uncomfortable frame of mind the ordeal of giving testimony.

What she wants to say, what she ought to say, what she was told to say is all gone. The jury and the judge understand and feel sympathetic but the rules of the court do not permit them to be polite, and to ask her to take a more comfortable chair, to have some tea, whether the children have had any after-effects of the measles, or to take off her hat and stay a while. She knows she has to stay and that she is not going to enjoy it.

She is the important witness who was riding in the car at the time it crashed into the grocery wagon. She is honest, of average intelligence, and wants to tell the truth. She is asked:

"At the time of the accident, where were you?" She says that she was in the car going up-town to see her married daughter whose children were sick with the measles and she was in a hurry. The lawyer moves to strike out the latter part of the answer. The fact that she was going to see her daughter, that the children had the measles, and that she was in a hurry are not relevant and have nothing to do with the case.

The only relevant fact is that she was in the up-town car.

She was sitting four seats from the front and thinking the car was going very slowly and the children would be asleep before she got there. It is immaterial that she was thinking about her grandchildren or the measles, or that she was thinking about the car going slowly.

The real question is how fast the car was going.

The reason for the rule of evidence is that the court always wants to know not what she thought, but what she actually saw. She will not be allowed to tell what she thought or what she told her daughter after the accident. The daughter can not be called to the stand to testify what her mother told her, when she reached her house, about what had happened. Newspaper accounts of the accident may not be allowed in evidence, nor what the policemen reported on the accident, because he arrived afterward. Anglo-Saxon law holds the proof down to what was actually perceived by the five senses. The court makes up its own mind from these perceptions and the facts themselves. It does not want to hear what someone thinks, or what the witness believes or concludes, but only what he perceived.

There is much to be said for and against this rule on both sides. A broader method to the lawyer seems shockingly loose and slipshod. The rules of evidence to the bystander seem an inhuman farce. The first allows an atmosphere to be created from which the whole truth may be reached. Would not an ordinary person, if he wanted to find out about the accident, read the newspapers, find out the police reports, ask what a witness thought, what that witness told someone else about the accident afterward? Is she not now giving someone an account of the accident?

Psychologists agree that no one can accurately narrate their perceptions and what happens before their eyes. Moreover, the tests performed on school and college graduates in regard to their powers of observation have shown the fallibility of human perception. The failure to perceive, plus the failure to remember, plus inadequacy of language, makes all testimony unsatisfactory. People of little education are still less able to either see or explain. The only safe way is to obtain a composite photograph of the witness's mind and of the thoughts that arise from the original perception, a continuation of impressions.

Judges or juries never determine cases by first deciding which witness is telling the truth or at least the exact truth. They take it for granted that both sides are lying somewhat; that no matter how well they mean and how hard they try, all witnesses are incapable of telling the exact truth. The unfortunate part of the law is that this is not officially recognized. There is a hypocrisy in not recognizing the inadequacy of human eyes and ears to grasp even simple concrete facts. A timidity exists that will not allow the admission of human imperfection.

The proof of this is that when three witnesses go on the stand and describe a thing as having happened in the same way, immediately there is a strong doubt in the mind of the jury about the whole case.

Suppose the question of the time a crime was committed arises and the defense tries to prove an alibi by showing the defendant was in a saloon at that time. There may have been three witnesses who really saw him at the same time. One witness comes on the stand and says 3:10, the next witness says he saw him at 3:10, and third says the same. The jury conclude that the story has been made up.

Yet suppose the first witness says he saw him sometime after lunch, and the second that he remembers seeing the defendant in the saloon sometime that day, but he is not sure whether it was in the morning or the afternoon, and the third witness says that he saw him during the week, but that he does not remember the day, whether a Thursday or a Friday--it is probable that the defendant will have a much better chance of succeeding with his alibi.

The lady in the car could not remember the time of the day, except that it was near the children's bed time. She had heard the crash and seen the wagon turn on to the car tracks. With a great many objections she finally gets to the point of the crash.

"Did you see the car hit the wagon?" "I object to that as leading,"

says the other lawyer. "It is leading and suggestive." Technically he may be correct, but if the judge has common sense he overrules the objection.

The proper question would be: "What happened next?" The witness, however, might remember the paper bag of oranges she was carrying to her grandchildren and instead of telling about the accident begin to describe how she dropped them on the floor. Leading questions are necessary in nearly every case. The reason that they are objectionable and ruled out is, that the judge and the jury ought to hear not the lawyer's narrative of the facts, but what the witness actually remembers.

A witness on the stand appears at his worst. If any one from real life were suddenly thrust unprepared and unlearned in theatrical art upon a stage the incongruity of the situation would be appalling. Yet the witness is thrown into new and strange surroundings. It is a portion of the reality of life shown vividly against a conventionalized background. The judge and jury in a vague manner understand this. The lawyer producing the witness feels this and elicits the testimony in a soothing manner.

The objects of cross-examination are as follows. The first is to prove that the story of the witness is not true, and the other is to bring out something new. The opposing counsel often forgets the purpose of his cross-examination and by attempting to bully and frighten the witness, usually either by sarcasm or a doubting manner, accomplishes very little. Not one cross-examination out of five hundred amounts to anything. The judge has heard many and he has little hope of their being of much interest. The jury make so much allowance for the witness being frightened on the stand and for the fact that she is in the hands of a clever lawyer, that they are not much impressed even if she contradicts herself or is proved mistaken. At best it is only a mistake, not a deliberate lie. The lawyer thinks he owes a moral obligation to his client and to himself to cross-examine. He is compelled to go on. There is a musty tradition of the law that a trial without cross-examination is not a proper trial. It is a legal fetish and one of the things that is done. The judge expects it, the jury expect it, the client expects it and the public.

The client pays his money and he ought not to be disappointed. If it were omitted altogether, the judge and jury might not feel the loss so bitterly. Perhaps they might prefer it and the question for the lawyer is whether it is better to satisfy the client or the jury. In this quandary the lawyer may forget that the main point is to win the battle. When the case is lost the client does not care at all how brilliantly the lawyer looked, acted, or fought.

If the lawyer reasons he will say:

"If the object of my cross-examination is to show that the witness is not telling the truth, have I much chance of getting him to confess the fact?" The witness knows something about perjury. He is afraid and he has heard about those pitfalls of cross-examination. Does the lawyer remember his own hopeful son and how only yesterday he could not get him to admit stealing the cake even with the prospect of immediately impending punishment? Only that little rim of chocolate about the ears was the proof. Even the deaf little child, who is not as intelligent as the witness, will not admit that he was untruthful.

But still he goes on cross-examining.

If the witness is finally shown a paper which he or she signed when the investigator of the railroad came to see her, and in which she said she was sitting on the sixth seat, there is not such a great deal to be proud of.

"Ha, Ha," thinks the lawyer "at last," "didn't you just now say you were sitting on the fourth seat?" "I don't remember," says the witness. "What," thunders the lawyer, "you don't remember; then your memory is poor. I will read you what you said on your direct examination," and he does. "Now which was it, the sixth or the fourth seat."

The other object of cross-examination is to elicit new facts. This is a dangerous risk for the lawyer, and unless he is sure of his ground, he had better not take it. He will do better to let his own side tell the facts than to bring them out through an unwilling witness who is on his guard and thinking the opposing lawyer is trying to trap him.

The mistake that most lawyers make in cross-examination is to ask the witness to repeat what he said in his direct testimony. Telling the same story over again merely accents the facts in the minds of the jury. The lawyer asks:

"You say that you saw the driver whip up his horses when the car was a block away." The lawyer may doubt the truth of the statement but the mere repet.i.tion of the words affects the memory of the jury. Unless he has a distinct object in going over the testimony, either to show the direct contrary strongly, or the fact that the witness has learned the testimony by rote and that the repet.i.tion is in exactly the same words, the lawyer would do better to desist.

Strange as it may seem the rules of evidence are actually based upon common sense. The ordinary experience of mankind gave rise to the rules of evidence, but the difficulty is that the further experience of civilization is giving rise to new rules which are not consistent with the old. Nevertheless the present rules when reasonably applied are fairly good. The question really is whether there should be any at all.

Accepting the fact that there should be rules they are based on two principles; the first is that only something which has to do with a case can be proved and second that it can be proved only in a safe and reasonable way. It may seem impossible to the lawyer and equally to the laymen to state the rules of evidence in simple language. But the principles of common sense will govern in the end, as they have in the past, notwithstanding they have been hidden under a ma.s.s of verbiage, ancient forms, and obsolete customs.

The theory is that justice wants the highest and best it can obtain, the court insists on the two princ.i.p.al rules; that evidence must be the very best that can be obtained and must be brought out in the safest, clearest, and most authentic manner.

Take, for instance, the rule that conclusions of the witness are not allowed. If the court considered as evidence that the testimony "the defendant brought the goods and they were delivered," and the defendant came on the stand and said, "I did not buy the goods and they were not delivered," the court would have before it merely two contrary beliefs or conclusions. It would be a case of "Katy did, Katy didn't."

The rule of evidence is plain that makes it necessary for the plaintiff to show where he saw the defendant, what was done, and what was said or written by the two parties. If the question is as to the delivery, it is not enough for the plaintiff to say "I delivered the goods." The court must have proof of the history of the goods. The driver of the wagon must be called who can testify where he drove, what package he carried, and what was done with it when he reached the house.

The whole subject of expert witnesses is not so complicated after all.

They are merely persons of exceptional experience who are allowed to testify as to something of which they know nothing. They may have never seen nor heard the facts in dispute but because they have had so much experience on similar facts they are allowed to say what they think of facts produced by eye witnesses before the court. As conclusions and opinions may be various, there is at times a great variety in experts, and because the very name of experts implies technicality, there is a feeling in the minds of the jury and the public, that the testimony of experts will befog by a ma.s.s of non-understandable terms.

The doctor who testified in a case in which the plaintiff suffered a sore back and had seventy-five dollars damages from the jury is an example. He said:

"The plaintiff was suffering from traumatic sacro-illiac disease, traumatic sinovitis of the knee and wrist and from traumatic myositis of the muscles of the back."

In reality the testimony of expert witnesses is very good evidence. If it is given in plain and understandable English and the jury think the expert a clean-cut, sensible man, it is just what the jury want to learn. An expert's method of reasoning about the facts in evidence is the same as that employed by the jury in the jury-room. It is merely an opinion; for on the opinion of the jury, based on the evidence depends their verdict.

While the witnesses are being examined, called to the stand, sworn, being excused, and being cross-examined, there occur numberless incidents of the trial known as the objections, exceptions, and motions.