III
The legal purpose of a preliminary examination is not the discovery of a criminal; it is the ascertaining of the probable guilt or innocence of the person already charged. To permit that person’s counsel to insult and madden the various assisting witnesses in the hope of making them seem to incriminate themselves instead of him by statements that may afterward be used to confuse a jury—that is perversion of law to defeat justice. The character of the practice is seen to better advantage contrasted with the tender consideration enjoyed by the person actually accused and presumably guilty—the presumption of his innocence being as futile a fiction as that a sheep’s tail is a leg when called so. Actually, the prisoner in a criminal trial is the only person supposed to have full knowledge of the facts who is not compelled to testify. And this exemption is given him by way of immunity from the snares and pitfalls with which the paths of all witnesses are wantonly beset. To a visiting Lunarian it would seem strange indeed that in a Terrestrial court of justice it is not deemed desirable for an accused person to incriminate himself, and that it is deemed desirable for a subpœna to be more dreaded than a warrant.
When a child, a wife, a servant, a student—any one under personal authority—is accused or suspected an explanation is demanded, and refusal to testify is held, and rightly held, a confession of guilt. To question the accused—rigorously and sharply to examine him on all matters relating to the offense, and even trap him if he seem to be lying—that is Nature’s method of criminal procedure; why in our public trials do we forego its advantages? It may annoy; a person arrested for crime must expect annoyance. It can not make an innocent man, even a mere witness, incriminate himself, but it can make a rogue do so, and therein lies its value.
This ancient and efficient safeguard to rascality, the right of a witness to refuse to testify when his testimony would tend to convict him of crime, has been strengthened by a recent decision of the United States Supreme Court. That will probably add another century or two to its mischievous existence, and possibly prove the first act in such an extension of it that eventually a witness can not be compelled to testify at all. In fact it is difficult to see how he can be compelled to now if he has the hardihood to exercise his constitutional right without shame and with an intelligent consciousness of its limitless application.
The case in which the Supreme Court made the decision was one in which a witness refused to say whether he had received from a defendant railway company a rate on grain shipments lower than the rate open to all shippers. The trial was in the United States District Court for the Northern District of Illinois, and Judge Gresham chucked the scoundrel into jail. He naturally applied to the Supreme Court for relief, and that high tribunal gave joy to every known or secret malefactor in the country by deciding—according to law, no doubt—that witnesses in a criminal case can not be compelled to testify to anything that “might tend to criminate them in any way, or subject them to possible prosecution.” The italics are my own and indicate about as clearly as extended comment could the boundless immunity that the decision confirms or confers. It is to be hoped that some public-spirited gentleman called to the stand in some celebrated case may point the country’s attention to the state of the law by refusing to tell his name, age or occupation, or answer any question whatever. And it would be a fitting finale to the farce if he would threaten the too curious attorney with an action for damages for compelling a disclosure of character.
IV
Most lawyers have made so profound a study of human nature as to think that if they have shown a man to be of loose life with regard to women they have shown him to be one that would tell needless lies to a jury—a conviction unsupported by the familiar facts of life and character. Different men have different vices, and addiction to one kind of “upsetting sin” does not imply addiction to an unrelated kind. Doubtless a rake is a liar in so far as is needful to concealment, but it does not follow that he will commit perjury to save a horsethief from the penitentiary or send a good man to the gallows. As to lying, generally, he is not conspicuously worse than the mere lover, male or female; for lovers have been liars from the beginning of time. They deceive when it is necessary and when it is not. Schopenhauer would say that it is because of a sense of guilt—they contemplate the commission of a crime and, like other criminals, cover their tracks. I am not prepared to say if that is the true explanation, but to the fact to be explained I am ready to testify with lifted arms. Yet no cross-examining attorney tries to break the credibility of a witness by showing that he is in love.
An habitual liar, if disinterested, makes about as good a witness as anybody. There is really no such thing as “the lust of lying:” falsehoods are told for advantage—commonly a shadowy and illusory advantage, but one distinctly enough had in mind. Discerning no opportunity to promote his interest, tickle his vanity or feed a grudge, the habitual liar will tell the truth. If lawyers would study human nature with half the assiduity that they give to resolution of hairs into their longitudinal elements they would be better fitted for service of the devil than they have now the usefulness to be.
V
I affirm the right and expediency of cross-examining attorneys in court, with a view to testing their credibility. An attorney’s relation to the trial is closer and more important than that of a witness. He has more to say and more opportunities to deceive the jury, not only by naked lying, but by both suppressio veri and suggestio falsi. Why is it not important to ascertain his credibility; and if an inquiry into his private life and public reputation will assist, as himself avers, why should he not be put upon the grill and compelled to sweat out the desired incrimination? I should think it might give good results, for example, to compel him to answer a few questions touching his professional career. Somewhat like this: