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Section 5. (c) The Correctness of Testimony.

The training of the witness into a capacityfor truth-telling must be based, (1) on the judge's knowledge of all the conditions that affect, negatively, correct observations and reproductions; (2) on his making clear to himself whether and which conditions are operative in the case in question; and (3) on his aiming to eliminate this negative influence from the witness. The last is in many cases difficult, but not impossible. That mistakes have been made is generally soon noted, but then, "being called and being chosen" are two things; and similarly, the discovery of what is correct and the substitution of the essential observations for the opinionative ones, is always the most difficult of the judge's tasks.

When the witness is both unwilling to tell the truth and unable to do so, the business of training may be approached from a few common view-points. Patience with the witness is perhaps the most important key to success. No doubt it is difficult to be patient where there is no time; and what with our contemporary overtasking, there is no time. But that must be altered. Justice must have strength to keep everybody's labor proportional to his task. A nation whose representatives do not grant money enough for this purpose must not expect satisfactory law courts—"no checkee no washee;" no money no justice. People who have time will acquire patience.

Patience is necessary above all while taking evidence. A great many witnesses are accustomed to say much and redundantly, and again, most criminal justices are accustomed to try to shut them off and to require brief statements. That is silly. If the witness is wandering on purpose, as many a prisoner does for definite reasons of his own, he will spread himself still more as he recognizes that his examiner does not like it. To be disagreeable is his purpose. He is never led by impatience beyond his introduction, and some piece of evidence is lost because almost every accused who speaks

unintelligibly on purpose, says too much in the course of his speech and brings things to light that no effort might otherwise have attained to. Besides, whoever is making a purposely long-winded testimony does not want to say anything superfluous, and if he actually does so, is unaware of it. And even when he knows that he is talking too much (most of the time he knows it from the impatient looks of his auditors), he never can tell just what exceeded the measure. If, then, he is asked to cut it short, he remains unmoved, or at most begins again at the beginning, or, if he actually condescends, he omits things of importance, perhaps even of the utmost importance. Nor must it be forgotten that at least a large proportion of such people who are brought to court have prepared their story or probably blocked it out in the rough. If they are not permitted to follow their plans, they get confused, and nothing coherent or half-coherent is discovered. And generally those who say most have thought their testimony over before. Those who merely have to say no more than yes and no at the trial do not reduce the little they are going to say to any great order; that is done only by such as have a story to tell. Once the stream of talk breaks loose it is best allowed to flow on, and only then interrupted with appropriate questions when it threatens to become exhausting. Help against too much talk can be found in one direction. But it must be made use of before the evil begins, and is in any event of use only in the description of a long chain of events,—e. g., a great brawl. There, if one has been put in complete possession of the whole truth, through one or more witnesses, the next witness may be told: "Begin where X entered the room." If that is not done, one may be compelled to hear all the witness did the day before the brawl and how these introductions, in themselves indifferent, have led to the event. But if you set the subject, the witness simply abandons the first part of possibly studied testimony without thereby losing his coherence. The procedure may be accurately observed: The witness is told, "Begin at this or that point." This deliverance is generally followed by a pause during which he obviously reviews and sets aside the part of his prepared speech dealing with the events preliminary to the required points. If, however, the setting of a starting point does not work and the witness says he must begin at the earlier stage, let him do so. Otherwise he tries so hard to begin according to request that, unable to go his own way, he confuses everything.

The patience required for taking testimony is needful also in

cross-examination. Not only children and slow-witted folk, but also bright persons often answer only "yes" and "no," [1] and these bare answers demand a patience most necessary with just this bareness, if the answers are to be pursued for some time and consecutively. The danger of impatience is the more obvious inasmuch as everyone recognizes more or less clearly that he is likely to set the reserved witness suggestive questions and so to learn things that the witness never would have said. Not everybody, indeed, who makes monosyllabic replies in court has this nature, but in the long run, this common characteristic is manifest, and these laconic people are really not able to deliver themselves connectedly in long speeches. If, then, the witness has made only the shortest replies and a coherent well-composed story be made of them, the witness will, when his testimony is read to him, often not notice the untruths it might contain. He is so little accustomed to his own prolonged discourse that at most he wonders at his excellent speech without noticing even coarse falsehoods. If, contrary to expectation, he does notice them, he is too chary of words to call attention to them, assents, and is glad to see the torture coming to an end. Hence, nothing but endless patience will do to bring the laconic witness to say at least enough to make his information coherent, even though brief. It may be presented in this form for protocol.