(b) Any fact observed by a legal adviser in the course of his employment as such, showing that any crime or fraud has been committed since the commencement of his employment, whether his attention was directed to such fact by or on behalf of his client or not; nor
(c) Any fact with which the legal adviser became acquainted otherwise than in his character as such.
Medical men and clergymen are not privileged from the disclosure of communications made to them in professional confidence, but it is not usual to press for the disclosures of communications made to clergymen.
4. Oaths.—A witness must give his evidence under the sanction of an oath, or of what is equivalent to an oath, that is to say, of a solemn promise to speak the truth. The ordinary form of oath is adapted to Christians, but a person belonging to a non-Christian religion may be sworn in any form prescribed or recognized by the custom of his religion. (See the article [Oath].)
5. Publicity.—The evidence of a witness at a trial must, as a general rule, be given in open court in the course of the trial. The secrecy which was such a characteristic feature of the “inquisition” procedure is abhorrent to English law, and, even where publicity conflicts with decency, English courts are very reluctant to dispense with or relax the safeguards for justice which publicity involves.
6. Examination.—The normal course of procedure is this. The party who begins, i.e. ordinarily the plaintiff or prosecutor, calls his witnesses in order. Each witness is first examined on behalf of the party for whom he is called. This is called the examination in chief. Then he is liable to be cross-examined on behalf of the other side. And, finally, he may be re-examined on behalf of his own side. After the case for the other side has been opened, the same procedure is adopted with the witnesses for that side. In some cases the party who began is allowed to adduce further evidence in reply to his opponent’s evidence. The examination is conducted, not by the court, but by or on behalf of the contending parties. It will be seen that the principle underlying this procedure is that of the duel, or conflict between two contending parties, each relying on and using his own evidence, and trying to break down the evidence of his opponent. It differs from the principle of the “inquisition” procedure, in which the court takes a more active part, and in which the cases for the two sides are not so sharply distinguished. In a continental trial it is often difficult to determine whether the case for the prosecution or the case for the defence is proceeding. Conflicting witnesses stand up together and are “confronted” with each other. In the examination in chief questions must be confined to matters bearing on the main question at issue, and a witness must not be asked leading questions, i.e. questions suggesting the answer which the person putting the question wishes or expects to receive, or suggesting disputed facts about which the witness is to testify. But the rule about leading questions is not applied where the questions asked are simply introductory, and form no part of the real substance of the inquiry, or where they relate to matters which, though material, are not disputed. And if the witness called by a person appears to be directly hostile to him, or interested on the other side, or unwilling to reply, the reason for the rules applying to examination in chief breaks down, and the witness may be asked leading questions and cross-examined, and treated in every respect as though he was a witness called on the other side, except that a party producing a witness must not impeach his credit by general evidence of bad character (Evidence and Practice on Criminal Trials Act 1865). In cross-examination questions not bearing on the main issue and leading questions may be put and (subject to the rules as to privilege) must be answered, as the cross-examiner is entitled to test the examination in chief by every means in his power. Questions not bearing on the main issue are often asked in cross-examination merely for the purpose of putting off his guard a witness who is supposed to have learnt up his story. In cross-examination questions may also be asked which tend either to test the accuracy or credibility of the witness, or to shake his credit by impeaching his motives or injuring his character. The licence allowed in cross-examination has often been seriously abused, and the power of the court to check it is recognized by one of the rules of the supreme court (R.S.C. xxxvi. 39, added in 1883). It is considered wrong to put questions which assume that facts have been proved which have not been proved, or that answers have been given contrary to the fact. A witness ought not to be pressed in cross-examination as to any facts which, if admitted, would not affect the question at issue or the credibility of the witness. If the cross-examiner intends to adduce evidence contrary to the evidence given by the witness, he ought to put to the witness in cross-examination the substance of the evidence which he proposes to adduce, in order to give the witness an opportunity of retracting or explaining. Where a witness has answered a question which only tends to affect his credibility by injuring his character, it is only in a limited number of cases that evidence can be given to contradict his answer. Where he is asked whether he has ever been convicted of any felony or misdemeanour, and denies or refuses to answer, proof may be given of the truth of the facts suggested (28 & 29 Vict. c. 15, s. 6). The same rule is observed where he is asked a question tending to show that he is not impartial. Where a witness has previously made a statement inconsistent with his evidence, proof may be given that he did in fact make it. But before such proof is given the circumstances of the alleged statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether he did or did not make the statement. And if the statement was made in, or has been reduced to, writing, the attention of the witness must, before the writing is used against him, be called to those parts of the writing which are to be used for the purpose of contradicting him (Evidence and Practice on Criminal Trials Act 1865, ss. 4, 5). The credibility of a witness may be impeached by the evidence of persons who swear that they, from their knowledge of the witness, believe him to be unworthy of credit on his oath. These persons may not on their examination in chief give reasons for their belief, but they may be asked their reasons in cross-examination, and their answers cannot be contradicted. When the credit of a witness is so impeached, the party who called the witness may give evidence in reply to show that the witness is worthy of credit. Re-examination must be directed exclusively to the explanation of matters referred to in cross-examination, and if new matter is, by the permission of the court, introduced in re-examination, the other side may further cross-examine upon it. A witness under examination may refresh his memory by referring to any writing made by himself at or about the time of the occurrence to which the writing relates, or made by any other person, and read and found accurate by the witness at or about the time. An expert may refresh his memory by reference to professional treatises.
For the history of the English law of evidence, see Brunner, Entstehung der Schwurgerichte; Bigelow, History of Procedure in England; Stephen (Sir J.F.), History of the Criminal Law of England; Pollock and Maitland, History of English Law, bk. ii. ch. ix.; Thayer, Preliminary Treatise on Evidence at the Common Law. The principal text-books now in use are—Roscoe, Digest of the Law of Evidence on the Trial of Actions at Nisi Prius (18th ed., 1907); Roscoe, Digest of the Law of Evidence in Criminal Cases (13th ed., 1908); Taylor, Treatise on the Law of Evidence (10th ed., 1906); Best, Principles of the Law of Evidence (10th ed., 1906); Powell, Principles and Practice of the Law of Evidence (8th ed., 1904); Stephen, Digest of the Law of Evidence (8th ed., 1907); Wills, Theory and Practice of the Law of Evidence (1907). For the history of the law of criminal evidence in France, see Esmein, Hist. de la procédure criminelle en France. For Germany, see Holtzendorff, Encyclopädie der Rechtswissenschaft (passages indexed under head “Beweis”); Holtzendorff, Rechtslexikon (“Beweis”).
(C. P. I.)