Institutio Oratoria

But since these witnesses are sometimes so artful that their first replies are designed to meet the wishes of the questioner, in order to win all the greater credit when subsequently they answer in a very different way, it will be the duty of the advocate to dismiss

In the case of advocates for the defence examination is in some respects easier, in some more difficult. It is more difficult because it is rarely possible for them to have any previous knowledge of what the witness is likely to say, and easier because, when they come to cross-examine, they know what he has already said.

Consequently in view of the uncertainty involved, there is need for careful inquiry with a view to discovering the character of the witness against the accused and what are his motives for hostility and what its extent: and all such points about the witness should be set forth in advance and disposed of, whether we desire to represent the evidence against the accused as instigated by hatred, envy, bribery or influence. Further, if our opponents bring forward only a small number of witnesses, we must attack them on that head; if on the other hand they produce an excessive number, we must accuse them of conspiracy: if the witnesses are persons of inconspicuous rank, we must minimise their importance, while if they are powerful, we shall accuse our adversaries of bringing undue influence to bear.

It will, however, be still more helpful if we expose the motives which they have for desiring to injure the accused, and these will vary according to the nature of the case and the parties concerned. For the other lines of argument mentioned above are often answered by the employment of commonplaces on similar lines, since the prosecutor, if he produce but few witnesses of inconspicuous rank, can parade the simple honesty of his methods on the ground that he has produced none save those who

But at times, just as we have to praise individual witnesses, so we may have to demolish them, whether their evidence has been given in documentary form or they have been summoned to appear in person. This was easier and of more frequent occurrence in the days when the examination of the witnesses was not deferred till after the conclusion of the pleading. [*]( It is not clear to what Quintilian refers. There are, it is true, passages in Cicero where the orator speaks of evidence as already given, but the speeches where these references are found are all second pleadings. ) With regard to what we should say against individual witnesses, no general rules can be laid down: it will depend on the personality of the witness.

It remains to consider the technique to be followed in the examination of witnesses. The first essential is to know your witness. For a timid witness may be terrorised, a fool outwitted, an irascible man provoked, and vanity flattered. The shrewd and self-possessed witness, on the other hand, must be dismissed at once as being malicious and obstinate; or refuted, not by cross-examination, but by a brief speech from the counsel for the defence; or may be put out of countenance by some jest, if a favourable opportunity presents itself; or, if his past life admits of criticism, his credit may be overthrown by the scandalous charges which can be brought against him.

It has been found advantageous at times when confronted with an honest and respectable witness to refrain from pressing him hard, since it is often the case that those who would have defended themselves manfully against attack are mollified by courtesy. But every question is either concerned with the case itself or with something outside the case. As regards the first type of question counsel for the

The schools, it is true, give no instruction either as to theory or practice in this subject, and skill in examination comes rather from natural talent or practice. If, however, I am asked to point out a model for imitation, I can recommend but one, namely that which may be found in the dialogues of the Socratics and more especially of Plato, in which the questions put are so shrewd that although individually as a rule the answers are perfectly satisfactory to the other side, yet the questioner reaches the conclusion at which he is aiming.

Fortune sometimes is so kind that a witness gives an answer involving some inconsistency, while at times (and this is a more frequent occurrence) one witness contradicts another. But acute examination methodically conducted will generally reach the same result which is so often reached by chance.

There are also a number of points strictly irrelevant to the case on which questions may be put with advantage. We may for example ask questions about the past life of other witnesses or about the witness' own character, with a view to discovering whether they can be charged with some disgraceful conduct, or degrading occupation, with friendship with the prosecutor or hostility toward the accused, since in replying to such questions they may say something which will help our cause or may be convicted

since a witness will often launch some smart repartee in answering counsel for the defence and thereby win marked favour from the audience in general. Secondly, we must put our questions as far as possible in the language of everyday speech that the witness, who is often an uneducated man, may understand our meaning, or at any rate may have no opportunity of saying that he does not know what we mean, a statement which is apt to prove highly disconcerting to the examiner.

I must however express the strongest disapproval of the practice of sending a suborned witness to sit on the benches of the opposing party, in order that on being called into the witness-box from that quarter he may thereby do all the more damage to the case for the accused by speaking against the party with whose adherents he was sitting or, while appearing to help him by his testimony, deliberately giving his evidence in such an extravagant and exaggerated manner, as not only to detract from the credibility of his own statements, but to annul the advantage derived from the evidence of those who were really helpful. I mention this practice not with a view to encourage it, but to secure its avoidance. Documentary evidence is not frequently in conflict with oral. Such a circumstance may be turned to advantage by either side. For one party will rest its case on the fact that the witness is speaking on oath, the other on the unanimity of the signatories. [*]( An over-statement, since in many cases the signatories could only testify that the statement was that actually made by the deponent; with its truth they were not necessarily concerned. )

Again there is often a conflict between the evidence and the arguments. One party will argue that the witnesses know the facts and are bound by the

Such problems are common to a number of cases, and are and will always be the subject of vehement debate. Sometimes there are witnesses on both sides and the question arises with regard to themselves as to which are the more respectable in character, or with regard to the case, which have given the more credible evidence, with regard to the parties to the case, which has brought the greater influence to bear on the witnesses.

If to this kind of evidence anyone should wish to add evidence of the sort known as supernatural, based on oracles, prophecies and omens, I would remind him that there are two ways in which these may be treated. There is the general method, with regard to which there is an endless dispute between the adherents of the Stoics and the Epicureans, as to whether the world is governed by providence. The other is special and is concerned with particular departments of the art of divination, according as they may happen to affect the question at issue.

For the credibility of oracles may be established or destroyed in one way, and that of soothsayers, augurs, diviners and astrologers in another, since the two classes differ entirely in nature. Again the task of establishing or demolishing such evidence as the following will give the orator plenty to do; as for example if certain words have been uttered under

The following method may not merely be used with great effect, but may even be badly missed when it is not employed. You gave me the money. Who counted it out? Where did this occur and from what source did the money come? You accuse me of poisoning. Where did I buy the poison and from whom? What did I pay for it and whom did I employ to administer it? Who was my accomplice? Practically all these points are discussed by Cicero in dealing with the charge of poisoning in the pro Cluentio. [*](cp. IX. 167. ) This concludes my observations upon inartificial proofs. I have stated them as briefly as I could.