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Historical hints and tips regarding witness handling

Quintilians general guidance on witness handling

10. He that produces a voluntary witness may know what he has to say and consequently appears to have the easier task in examining him. But even this undertaking requires penetration and watchfulness, and we must be cautious that the witness may not appear timid, inconsistent, or foolish,11. for witnesses are confused, or caught in snares, by the advocates on the opposite side, and when they are once caught, they do more harm than they would have done service if they had been firm and resolute. 12. But even in regard to those who are consistent in their evidence, we must be on our guard against treachery, for they are often thrown in our way by the opposite party and, after promising everything favourable, give answers of a contrary character and have the more weight against us when they do not refute what is to our prejudice, but confess the truth of it.13. We must inquire, therefore, what motives they appear to have for declaring against our adversary. Nor is it sufficient to know that they were his enemies. We must ascertain whether they have ceased to be so; whether they may not seek reconciliation with him at our expense; whether they have been bribed; or whether they may not have changed their purpose from penitential feeling.

15. Of witnesses who are summoned to give evidence, some are willing to hurt the accused party and some unwilling, and the accuser sometimes knows their inclination and is sometimes ignorant of it. Let us suppose for the moment that he knows it, yet in either case, there is need of the greatest circumspection on the part of him who examines them. 16. If he finds the witness disposed to prejudice the accused, he ought to take the utmost care that his disposition may not show itself, and he should not question him at once on the point for decision, but proceed to it circuitously, so that what the examiner chiefly wants him to say may appear to be wrung from him. Nor should he press him with too many interrogatories, lest the witness, by replying freely to everything, should invalidate his own credit, but he should draw from him only so much as it may seem reasonable to elicit from one witness. 17. But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is to extort from him what he does not wish to say. This cannot be done otherwise than by questions that seem wide of the matter in hand, for to these he will give such answers as he thinks will not hurt his party, and then, from various particulars which he may confess, he will be reduced to the inability of denying what he does not wish to acknowledge. 18. For as in a set speech, we commonly collect detached arguments, which, taken singly, seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be questioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects, so that he may be brought to give some answer. After this he must either acknowledge what we wish or contradict what he himself has said. 19. If we do not succeed in that object, it will then be manifest that he is unwilling to speak, and he must be led on to other matters that he may be caught tripping, if possible, on some point, though it be unconnected with the cause. He may also be detained an extraordinary time, that by saying everything and more than the case requires, in favour of the accused, he may make himself suspected by the judge, and he will thus do no less damage to the accused than if he had stated the truth against him. 20. But if (as we supposed in the second place) the accuser be ignorant of the witness's disposition, he must sound his inclination cautiously, interrogating him, as we say, step by step and leading him gradually to the answer which is necessary to be elicited from him. 21. But as there is sometimes such art in witnesses, that they answer at first according to an examiner's wish, in order to gain greater credit when they afterwards speak in a different way, it is wise in an orator to dismiss a suspected witness before he does any harm.

22. For advocates that appear on behalf of defendants, the examination of witnesses is in one respect easier, and in another more difficult, than for those who are on the side of the prosecutor. It is more difficult on this account, that they can seldom or ever know, before the trial, what the witness is going to say; and it is easier, in as much as they know, when he comes to be questioned, what he has said. 23. Under the uncertainty, therefore, which there is in the matter, great caution and inquisition is necessary, to ascertain what sort of character he is that prosecutes the defendant; what feeling he entertains against him; and from what motives. All such matters are to be exposed and set aside in our pleading, whether we would have the witnesses appear to have been instigated by hatred, by envy, by desire of favour, or by money. If the opposite party, too, produces but few witnesses, we may reflect on their small number. If they are extraordinarily numerous, we may insinuate that they are in conspiracy; if they are of humble rank, we may speak with contempt of their meanness; if persons of consequence, we may deprecate their influence. 24. It will be of most effect, however, to expose the motives on which the witnesses speak against the defendant, which may be various, according to the nature of causes and the parties engaged in them. For to such representations as I have just mentioned, the opposite party can answer with commonplace arguments, as when the witnesses are few and humble, the prosecutor can boast of his simple honesty in having sought for none but such as were acquainted with the case in hand, while to commend a large number or persons of consideration is a somewhat easier task. 25. But occasionally, as we have to commend witnesses, so we have to decry them, whether their testimony is read in our pleading or they are summoned to give it personally. Such attempts were easier and more frequent in the times when the witnesses were not examined after the pleading was ended. As to what we should say against the witnesses respectively, it can only be drawn from their individual characters.

26. The manner of questioning witnesses remains to be considered. In this part of our duty, the principal point is to know the witness well, for if he is timid, he may be frightened; if foolish, misled; if irascible, provoked; if vain, flattered; if prolix, drawn from the point. If, on the contrary, a witness is sensible and self-possessed, he may be hastily dismissed as malicious and obstinate; or he may be confuted, not with formal questioning, but with a short address from the defendant's advocate; or he may be put out of countenance, if opportunity offer, by a jest; or, if anything can be said against his moral character, his credit may be overthrown by infamous charges. 27. It has been advantageous, on certain occasions, not to press too severely on men of probity and modesty, for those who would have fought against a determined assailant are softened by gentle treatment.

27. Every question is either about some point within the cause or on some point without it. On matters within the cause, the advocate of the accused, as we also directed the accuser, may frequently, by putting questions a little widely and on subjects from which no suspicion will arise, and by comparing previous with subsequent answers, reduce witnesses to such a dilemma as to extort from them against their will what may be of service to his own cause. 

28. On this point, there is certainly no instruction or exercise given in the schools, and excellence in it depends rather on natural acuteness or experience than anything else. If any model, however, ought to be pointed out for imitation, the only one that I can recommend is that which may be drawn from the dialogues of the Socratic philosophers, and especially Plato, in which the questions are so artful that though the respondent answers correctly to most of them, the matter is nevertheless brought to the conclusion which the questioner wishes to establish. 29. Fortune sometimes favours us by causing something to be said by a witness that is inconsistent with the rest of his evidence, and sometimes (as more frequently happens) she makes one witness say what is at variance with the evidence of another, but an ingenious mode of interrogation will often lead methodically to that which is so frequently the effect of chance.

30. On matters without the cause, also, many serviceable questions are often put to a witness, as concerning the character of other witnesses; concerning his own; whether anything dishonourable or mean can be laid to the charge of any of them; whether they have any friendship with the prosecutor, or enmity against the defendant. In replying to such questions, they are likely to say something of which we may take advantage, or may be convicted of falsehood or malevolence. 31. But all questioning ought to be extremely circumspect, because a witness often utters smart repartees in answer to the advocates and is thus regarded with a highly favourable feeling by the audience in general. Questions should be put, too, as far as possible, in familiar language, that the person under examination, who is very frequently illiterate, may clearly understand or at least may not pretend that he does not understand, an artifice which throws no small damp on the spirit of the examiner.

Sometimes there are witnesses on both sides, and the question arises, with regard to themselves, "Which of them are the most respectable?" with regard to the cause, "Which of them have given the most credible evidence?" and, with regard to the litigating parties, "Which may have had most influence over the witnesses?"

From the Institutes of Oratory – Book 5, Chapter 7 Reproduced from the Internet Archive Wayback Machine of Quintilian’s Institutes of Oratory

 Ballantine, in his book "Experiences of a barristers life" also offers hints and tips regarding examination in chief, which newly qualified barristers may find helpful. You can find his pdfhints and tips here211.82 KB

For those who haven't run across Ballantine before, he was historically noted as a passionate character and one of the pdfgreat cross examiners of his time882.50 KB. In his day, he got the highest fee ever awarded to a barrister - 20,000 guineas, equivalent to £1.5m today. However, he managed to burn through all that money, with a lot of it being spent on "the naughty girls" and in the end he had to leave the country to avoid debtors prison. Despite his flaws, he was well liked at the Bar, and six barristers paid him £50 a year each, plus he also received £300 from his son. One of those barristers was Lord Halsbury, also known as Hardinge Stanley Giffard, who was the editor for Halsbury's Laws of England, so part of the profits made by that very serious and sober work went to keep Ballantine in the style to which he had become accustomed...

T Cox's "The Advocate" also includes a section on examination in chief, which may prove useful and  Richard Harris, who again was a leading light on advocacy at the American Bar during the 19th century, has also provided pdfdetailed and useful guidance to baby barristers on how best to examine a witness545.41 KB,  drawn from his well known book Harris Hints on Advocacy. All of these sources may provide a number of helpful hints and tips that may be usefully applied today.

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