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On the Handling of Witnesses in Court

By Quintilian (c. 35–c. 95 A.D.)

From the ‘Institutes’: Translation in Bohn’s Library

SINCE, then, there are two sorts of witnesses, those who appear voluntarily and those whom the judge summons according to law,… let us distinguish the duty of the pleader who produces witnesses from that of him who refutes their testimony.

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, or inconsistent, or foolish; for witnesses may be 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. They should therefore be well exercised before they are brought into court, and tried with various interrogatories such as are likely to be put by an advocate on the other side. By this means they will either be consistent in their statements, or if they stumble at all, will be set upon their feet again, as it were, by some opportune question from him by whom they were brought forward. 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 favorable, 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. 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 feelings,—precautions not only necessary in regard to witnesses who know that which they intend to say is true, but far more necessary in respect to those who promise to say what is false. For they are more likely to repent, and their promises are more to be suspected; and even if they keep to their word, it is much more easy to refute them.

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. If he find a 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. 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; and 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. 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 which he must either acknowledge what we wish, or contradict what he himself has said. If we do not succeed in that object, it will 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 favor 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. 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. 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.

For advocates that appear on behalf of defendants, the examination of witnesses is in one respect more easy, 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 never know, before the trial, what the witness is going to say; and it is more easy, inasmuch as they know, when he comes to be questioned, what he has said. 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: and 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, or by envy, or by desire of favor, or by money. If the opposite party too produce 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. 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. But occasionally, as we have to commend witnesses, so we have to decry them…. As to what we should say against the witnesses respectively, it can only be drawn from their individual characters.

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. 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.