Experienced cross-examiners humor the disposition of witnesses to display superior knowledge of the matter at issue and a good deal besides, and they readily fall into the trap prepared for them by the cross-examiner with the encouraging manner.

Judge Whiting, formerly District Attorney and Justice of the Supreme Court, was retained by the Citizens' Association, the municipal reform party in the sixties, to conduct an inquiry similar to that of the Mazet and Lexow committees of later years. The municipal departments were under investigation by a Senate committee sitting in one of the rooms of the Supreme Court, and the old city inspector's department was under fire to test the qualifications of that official's appointees for "health wardens," some score or more in number, who, at high salaries, were employed, as their title indicated, to watch over the health of the city. One of these worthies went on the stand and described his experience with the families in his district and his discovery that the members of one family were "hygienics." "And what," asked Judge Whiting, "are those?" "Why," rejoined the witness, "people who doctor themselves." This reply was received with great amusement by all present, and particularly by the health warden, who was next to take the stand. When his name was called he advanced with confident air and gave his direct evidence with volubility. No sooner did Judge Whiting rise to cross-examine him than he broke in with the statement that counsel need not try to puzzle him, for he knew what hygiene was. "Then," said the judge with unwonted suavity, "please tell us all about it." "Hygiene," said the witness, "is the effluvia arising from stagnant water." "The fumes of which," queried the judge, gravely, "are prejudicial to human life." "Exactly so," responded the witness, and he was excused from further tests of his qualifications.

One of the most skilful of our young trial lawyers, whose ability in cross-examination has been over and over again developed, has an extraordinary faculty for seizing upon a chance exaggeration by a hostile witness and clinging to it with tenacity until the admission of falsehood is obtained. He will repeat his question, "Why did you say so and so?" or "It was

not true was it?" in spite of a dozen evasions until the witness has no recourse except to confess that he or she had added what was not the fact to testimony given under the solemnity of an oath.

Witnesses seldom know when to stop talking. The tendency of even the most honest is to give an account complete in all its parts, and to fill up, with what is mere inference, the gaps in actual knowledge. Few witnesses have seen all of an occurrence or can remember all of a conversation.

Experienced lawyers expect that even candid and respectable witnesses will be tempted to round out their version of a transaction with matter of mere surmise. The invented portions will of course change with every repetition, the matters of pure memory alone remaining the same. Counsel will therefore generally ask a witness to repeat on cross-examination what has been given on the direct and will easily distinguish by the change of words and phrases where the imagination has come to the aid of recollection in the details of a transaction.

There are few lawyers who do not think it proper to instruct the witnesses in advance of the trial as to the difference between competent and incompetent testimony, and that they must avoid giving hearsay. It would be proper to impress upon the most honest of witnesses that their impressions, not founded upon recollection, as to what possibly or even probably occurred, must be dismissed from the mind and the absolute memory only given in evidence on the direct. If the opposing counsel seeks to lead the witness into the realms of surmise he may be safely followed, but it will never do to let him discover the witness there and drag him out as a terrible example of mendacity.

As damaging as too much talk from a witness is an unnatural degree of taciturnity. Nothing makes a worse impression upon a jury than a witness who for safety confines himself to yes and no. With such a witness the greatest art is requisite in the direct examination to frame questions which will not be leading and yet will humor the extreme caution of the witness. This should be done with discretion and delicacy, and so with every instruction you find it necessary to give your witness when on the stand, for it injures a cause for counsel to find fault with

his own witness. If it is necessary to correct a witness when you perceive that he wearies the Court or jury, do it with good humor and as if it were a concession to some infirmity of your adversary which you and the witness are willing to indulge; but never quarrel with your own witnesses.

The advantage of having your witnesses detail, in advance of the trial, their testimony is very great. This will save you from many surprises. I recall one in which the ingenuity of counsel was wholly unavailing to remove an unfortunate impression. A will contest was before the Court and jury; the will was that of a parent and it made very unequal, and, it was claimed, unfair disposition of property among the children. One of the heirs, a son, who was ignored by its provisions, was called by the contestant's counsel, and a very innocent youth made his way to the stand where he was questioned to show the absence of any reason for discriminating against him. This evidence would, of course, indicate some forgetfulness on the part of the parent as to the objects of his bounty, and thus affect his testamentary capacity. The counsel for the proponents rose and asked but a single question in cross-examination: "Where were you for two years before your father's death?" To which the innocent-looking youth replied: "In the Elmira Reformatory." The counsel for the contestants, who is a very quick thinker and a very brilliant talker, endeavored to remove the unfavorable impression created by the unfortunate admission. He assumed a plaintive demeanor as he addressed his witness: "I will not ask you what youthful indiscretion necessitated your committal to this beneficent institution for the correction of the young, I will simply ask you this: Since your release and return to the bosom of society you have endeavored to atone for your past error by unswerving devotion to the path of innocence and rectitude?" To which the witness frankly answered "No sir." It is not easy to picture the look of regret mixed with curiousity which the counsel gave the witness on receiving this knock-down blow. He went down in his corner, in the language of the present popular sport with which our daily papers regale us, and was completely knocked out.

It was manifest in the case last mentioned that the past history of the witness was a surprise to the counsel. This must have been due to an insufficient investigation by the attorney or the jurior in the case into the history of the family which, in such cases, is really the history of the case; or possibly the counsel knew of the youthful indiscretion and its retribution and assumed that the youngster must of necessity have concluded to behave himself after it was over. At all events the case contains a suggestion which it is well to heed in examining your own witnesses and that is never to risk the chance of an infavorable answer-better avoid an unexplored field of inquiry be it never so tempting.

Since it is indispensable that witnesses should be thoroughly investigated before trial and their honesty and character put to the severest tests, it is a proper precaution to warn them not to be embarrassed by questions of the adversary as to whether they have talked with the counsel or with anybody about the testimony they were to give. Ignorant witnesses connect these questions with some imputation that they have been coached for examination, and in their fear to injure the cause for which they testify are apt to hesitate. It is surprising how successful this threadbare scheme for confusing witnesses proves to be in nine cases out of ten. It is generally counsel who, it may safely be inferred, confer most largely with their own witnesses who are prone to this kind of cross-examination; but it is a very easy and very effective way of beginning a cross-examination and is resorted to like a familiar opening in a game of chess. The only way to check your adversary is to warn your witnesses to answer frankly on the subject and never to be afraid to tell how often and to whom they have told the story they are telling on the stand.

I have heard very good advice given to a party who was to be a witness in his own cause and who, being a man of very infirm temper, was exceedingly apprehensive that the artfulness of his adversary's counsel might involve him in an unseemly display. The advice was to listen carefully to the questions put and then to look not at the counsel, but at the jury when giving his answer. It is always well for a party to avoid that personal

contest which may result from a vigorous cross-examination and lead to a loss of temper—the worst loss a party can sustain when a witness in his own cause.

Cross-examination may be compared to a sword without a hilt. Unless it is handled carefully it may injure the one who uses it more than it hurts his adversary. Where counsel would test the accuracy or honesty of a witness by inquiring into a multitude of circumstances, he must be careful lest this very process may elicit the most convincing corroboration of the witness's direct testimony and leave the counsel in the sorry plight of having made his adversary's case stronger than it was before. It may be safely said that unless counsel feel pretty sure of their ground and know the case of the other side thoroughly it is better to be frugal in cross-examination and confine questioning to the thorough exposure of palpable error or bias. With regard to impeachment of witnesses little can be said with which the practitioner is not very familiar. A party who is a witness may be contradicted by his previous declarations given at any time to any person without the necessity of laying a foundation for such impeachment by any questions to him on the subject. But any other witness must first be given the opportunity to explain such declarations by having them specifically called to his attention on the stand with particulars of time and place. When he is to be contradicted by a writing it must be shown him and he cannot be asked as to its contents before it is produced to him.

Where it is claimed that your own witness has invented his testimony for the purpose of the trial it may in certain cases be shown that he had given a similar version of the transaction before action brought.

In my experience and that of many judges there has been no successful impeachment of a witness by proof of bad reputation. There is something distasteful to the average juryman in the "swearing away a man's character," and the general feeling in that regard is evidenced by the reluctance on the one hand, of witnesses to come forward and testify that they would not believe a witness under oath and the readiness, on the other hand, with which all a man's acquaintances hasten to his support. I