Something may now be added from actual experience to what is already familiar in theory to all persons who care about such discussions. I refer to the practical working of the statutes which have, in some particular cases, made prisoners competent witnesses. The most important of these statutes is the Criminal Law Amendment Act of 1885, which renders persons accused of various offences against women competent, though not compellable witnesses.
These statutes have effected two things. In the first place they have made the law as it stands so inconsistent that it can hardly remain in its present condition. It is a monstrous absurdity that a man should be allowed to give evidence if he is charged with a rape or with an indecent assault upon a female, but not if he is charged with analogous offences, even more disgusting and more likely to be made the subject of a false accusation; that if a man is charged with personating a voter he should be allowed to be examined as a witness, but not if he is accused of personation with intent to defraud; that he should be competent if he is charged with sending an unseaworthy ship to sea or with being unlawfully in possession of explosives, but not if he is charged with manslaughter by negligently causing loss of life on a ship or by negligently dealing with explosives. These and some other contrasts which might be mentioned stultify the law. It is impossible to justify both the rule and the exceptions which have been made to it.
[The most singular of these contrasts arises no doubt from a slip in the drafting of the Bill. A prisoner is a competent witness if he is charged with indecent assault, but not if he is charged with an assault with intent to commit a rape. Section 20 of the Act of 1885 makes prisoners competent witnesses in the case of all offences under that Act or under 's. 48 and ss. 52-55 both inclusive' of the Offences against the Person Act (24 & 25 Viet. 100). An assault with intent to commit rape is punishable not under these sections, but under s. 38 of 24 & 25 Viet. c. 100, which punishes all assaults with intent to commit felony. If no other alteration is made, ss. 61 and 62 of c. 100 and so much of s. 20 as relates to charges of assault with intent to ravish should be included in the references in s. 20 of the Act of 1885.]
There is, however, another thing which the provisions in question have done. They have exemplified the manner in which the evidence of prisoners works, and have illustrated the principles upon which its importance depends.
I have gained much experience on this matter since the Criminal Law Amendment Act came into force in the autumn of last year. Since that time I have tried a great many cases in which prisoners were competent witnesses. In most of these cases, though not in all, they were called, and I have thus had the opportunity of seeing how the system works in actual practice. My experience has confirmed and strengthened the opinion upon the subject which I have held for many years, and maintained on various occasions, [See, e.g., my History of the Criminal Law, vol. i. pp. 440-46] that the examination of prisoners as witnesses, or at least their competency, is favourable in the highest degree to the administration of justice; that the value of a prisoner's evidence varies according-to the circumstances of each particular case as much as the evidence of any other class of witnesses does; and that therefore it is as unwise to exclude the evidence of prisoners as it would be to exclude the evidence of any other class of persons arbitrarily chosen.
No theory on which the evidence of prisoners ought to be excluded can be suggested which does not really come to this—that the probabil1ty that a prisoner will speak the truth is so much diminished by his interest in the result of the trial that it is not worth while to hear what he has to say. I do not think that anyone ever held this theory completely in the crude form in which I have stated it, for so stated it involves the monstrous result that. no prisoner ought to be allowed, even if he is undefended, to tell his own story to the jury, but that all prisoners ought to be confined to remarking upon the evidence given for or against them. This appears to me to reduce the theory to an absurdity. It may, however, be worth while to dwell a little upon the reasons why the theory is absurd. It is, in the first place, obvious that it assumes the prisoner's guilt, for if the truth is in his favour the prisoner's interest is to speak the truth as fully and exactly as he can, and it is therefore probable that he will do his best 50 to speak it. This remark, if followed out, explains the whole matter. It is waste of time to try to lay down general rules as to the weight of evidence and the credit of witnesses. What really has to be determined is the probability that this or that statement is true; and this task cannot be undertaken unless and until the statement is made. No doubt the interest which a witness has in the result of the inquiry must always be entitled to consideration as bearing upon the probability of different parts of his statement. No doubt also it may in particular cases be not only a leading but a decisive consideration. In such cases due allowance can be made, and the evidence given may be thrown out of account; but the importance of this depends on time, place, and circumstance, and varies from case to case and statement to statement. Interest, in other words, ought in reason to be treated as an objection to the credit of a witness and not to his competence.
No one can deny this who is not prepared to maintain that it was a mistake to alter the old law as to incompetency by interest, and indeed to maintain in addition that it did not go far enough. By that law the smallest pecuniary interest in the event of a trial made a witness incompetent, but no interest in relation to affection or character had that effect. A man was always a competent witness for or against his son or his brother, and he might be a competent witness in a case in which his own character and all his prospects in life were at stake. As regarded all witnesses, prisoners upon trial only excepted, the restriction as to money interest has long since been abolished. Why should a much wider exclusive rule be retained in that single case?
The principal object of this paper is to show by illustrations taken from actual experience that the value of the evidence given by prisoners is exactly like the value of the evidence given by other witnesses, and that though their interest in the result must always be taken into account, and is in many cases so important as to destroy altogether the value of their evidence, there are also many cases in which it is of great and even of decisive importance. These matters are u.ost easily understood by illustrations, and I will accordingly proceed to attempt to prove what I have said by references to actual cases which have been tried before me, and which are so chosen as to illustrate the different degrees of importance which may attach to the evidence of accused persons.
I am sorry to be obliged to take most of my illustrations from cases of sexual crime; but this cannot be helped, because most of the cases in which prisoners are by law competent to testify have arisen under the Criminal Law Amendment Act. It is not, however, necessary for my purpose to enter into any details of an offensive character. I will begin with cases which appear to me to illustrate the doctrine that the evidence of prisoners may often be unimportant.
A man was indicted under the Criminal Law Amendment Act for the seduction of a girl under sixteen. About the facts there was no dispute, but the prisoner was defended on the ground that he believed the girl to be of the age of seventeen. She admitted that she had told him she was seventeen. His counsel said that he should not call the prisoner. He would of course say, if he were called, that he believed the girl, but as this would be merely .his own statement as to his own state of mind it would add nothing to the case. His evidence would thus be superfluous. The jury acquitted the prisoner, seeing no reason to doubt that the girl had made the statement, and probably regarding her appearance as such that the prisoner might naturally believe the statement made by her to be true. In this case the prisoner's evidence was sure to be given if asked for, whether it was true or false, and was therefore worthless.
This case is a typical one, and suggests a general principle which may be illustrated in many ways as to the value of the evidence of prisoners and of interested witnesses. It is, that the evidence of a deeply interested witness, given on the side which his interest would incline him to give it, is of no value when the circumstances are such that he cannot be contradicted on the subject-matter of his evidence. This principle is of very general application, and reaches its height when the matter to which the prisoner testifies is a fact passing in his own mind, such as knowledge, belief, intention, or good faith. Did you in good faith believe the girl's statement; that she was seventeen and not sixteen? Did you, when at twelve o'clock at night you bought for a small price from a man whom you did not know, and who concealed his face, a quantity of government stores of which he gave no account, know that they were stolen? Did you, when you fired a pistol straight at an enemy and wounded him, intend to do him grievous bodily harm?—are questions which it is idle to ask, because they are sure to be answered in one way, and because no reasonable person would be affected in his judgment on the subject by the answer. Bare reluctance to commit perjury is shown by daily experience to be far too feeble a motive to counteract any strong interest in doing so. No doubt honourable men in common life feel as if it would be morally impossible for them to tell a wilful lie on a solemn occasion like a trial in a court of justice, whether upon oath or not, and many men would no doubt undergo great loss and inconvenience rather than to do so; but this reluctance, I feel convinced, proceeds much more than they suppose from the fear of being contradicted and found out. There are temptations under which almost every one would lie, and in the face of which no man's word ought to be taken. The fact that the most respectable, most pious, and most virtuous of men denied upon oath that he had committed some disgraceful act, especially if the admission that he had done so would involve not only perjury, but a shameful breach of confidence, would weigh little with me in considering the question of his guilt. His character would, or might, weigh heavily in his favour, but his oath would to my mind hardly add to it perceptibly. Voltaire asked long ago whose life would be safe if even a virtuous man was able to kill him by a mere wish; and the case is the same with regard to perjury. Unite a strong temptation to lie with a strong interest in lying and security from discovery, and it is all but morally certain that the lie will follow. [The following is a quaint illustration of the way in which this matter is sometimes regarded. An old American attorney once observed: 'A man who would not perjure himself to save a woman's character must be such an infernal scoundrel that I would not believe him on his oath, although I knew what he said was true.']
I will give a few more instances of the way in which this principle works, and I may observe that it affords a rule by which it is often possible to test the justice of the complaint, often used as a topic of grievance by counsel, that the prisoner's mouth is closed. A woman was tried for murder under the following circumstances. She lived as servant to an old farmer on one of the most barren, out-of-the-way moors in England, near the place at which the five northern counties closely approach each other. The only other inmate of the house was a young man, the farmer's son. The old man and the servant were sitting together one evening when the young man came in, and said he had been at the nearest village and seen some one there, about whom he laughed at the girl. The farmer did not know what his son referred to, nor was there any evidence on the subject. The son left the room. The girl also left soon afterwards, and returned after a short absence. The son did not return, and after waiting for him a considerable time the father went to bed, leaving the girl sitting up. A point to which some importance was afterwards attached was that the dogs remained quiet all night, which, it was suggested, went to show that no stranger approached the house. In the morning the girl called the old man down and told him that on going out to see after the cows she had noticed blood on the walls of the cowhouse, which had trickled down from chinks in the floor of a room above it, used as a sort of workshop. In this room was found the dead body of the young man. He had been killed by several terrible blows from a stone-breaker's hammer kept in the room, which was found lying near him; and the position of the body and the hammer made it clear that he must have been stooping down lacing his boots when some one armed with the hammer, striking him from behind, knocked him down with a terrible blow in the face, and afterwards dispatched him by breaking his skull. There were Carious other circumstances in the case, but these were the most important of them. Some which appeared to throw suspicion on the girl were rendered doubtful by the fact that the old man, on whose testimony they depended, completely contradicted at the trial the evidence he had given about . them before the magistrates, excusing himself by saying that he was so agitated and broken down by the murder of his son that he could not depend on his memory. The girl was acquitted, and, as I thought, properly, as the whole matter was left in mystery. That she had an opportunity of committing the crime was clearly proved; there was some evidence, though not enough to exclude a reasonable doubt on the subject, to show that no one else could have committed it. Nothing in any way resembling a motive for the crime was proved, or even suggested, and the matter was thus left incomplete.
If this matter had been investigated according to the French system, the girl would have been put in solitary confinement and examined in private for weeks or months as to every incident of her life, in order to discover, if possible, circumstances which would show a motive for the crime which would have been imputed to her, and to sift to the utmost a number of minute circumstances in the case which I have passed over because they were imperfectly sustained. It is impossible to say what the result might have been, and it is not worth while to consider it, as no one would propose the introduction of this mode of inquiry into this country. The point here to be noticed is that, if she had been a competent witness according to English law, her evidence, assuming her innocence, could have done her no good, nor if she were guilty would it have exposed her to much risk, unless she had gone out of the way to tell lies in her own favour, as a guilty person very probably might. Suppose her innocent—all that she could have to say would have been that she knew nothing about the man's death; that she left the room to look after the cows or for some other purpose; that whilst absent she neither saw nor heard anything suspicious; that, after sitting up in vain for the man's return, she went out again to the cows and found the blood, and so the body. If her guilt is assumed she would be able to tell the same story, as there was no one to contradict her and nothing of importance to explain. Her evidence, therefore would have been in the particular circumstances of the case wholly unimportant.
This no doubt is speculation upon what would have happened had the law been some years since what it is now proposed to make it. I will give an instance of the same kind under the Criminal Law Amendment Act. A man was tried for an attempt to ravish, which was undoubtedly committed by some one. His guilt was positively sworn to by the girl herself, and by two if not three other witnesses who were near. His defence was an alibi. He said he was at dinner at his mother's house at the time when the offence was committed. He called a number of witnesses in support of his story, who had seen him at different times on his way there, at the house, and on his way back. The persons in the house gave evidence as to the time during which he stayed there. His own evidence accordingly added only this fact, that between the time when he was last seen going towards his mother's house and the time when he arrived there, he was not engaged in committing the crime, but in walking along the road. On a close inquiry into times and places, it turned out that all that was necessary for him to say, on the supposition of his guilt, was to alter the time of his arrival at his mother's by a very few minutes. Any accused person who was not prepared to admit his guilt would go as far as that in the direction of perjury.
Further illustrations may be found in the case of almost all offences committed at night. ‘When you say I was committing burglary or night-poaching I was in fact at home and asleep in bed, and both my wife and I are prepared to swear to it now that the law has opened our mouths.' If the law were altered, I should expect such defences to be set up in almost every case of the kind; but I should hope juries would be slow to acquit in consequence of it if the evidence for the prosecution were, independently of it, enough to warrant a conviction.
Though the evidence of an accused person on a point in which he is interested and cannot be contradicted ought to be regarded as worthless in the way of proving his innocence, the absence of such evidence may, under particular circumstances, go far to prove his guilt; for it is a fact, and a very strange one, that criminals will now and then shrink from denying the commission of crimes from the actual commission of which they have not shrunk. The working of the Criminal Law Amendment Act has furnished very curious illustrations of this. A girl swore that her master committed an offence upon her in his shop, and that immediately afterwards he suggested to a friend who came into the shop that he should do the same. The friend persuaded the girl (so she said) to go with him to his house to get some grapes, and, when he got there, committed the same offence. That the girl had gone to her master's shop, that his friend had come in and had persuaded her to go to his house to get grapes, was clearly proved; but the commission of the two offences rested upon her testimony, which was in itself open to many objections, showing, to say the least, great inaccuracy and confusion as to time and place, and being in several particulars intrinsically improbable. If the master's friend had sworn to his innocence and had said that all that passed between him and the girl was that he took her to his house and gave her some grapes, and that the rest of her story was false, I think he would have been acquitted, but he refused to be called as a witness. The jury convicted him, I suppose, considering it incredible that a man falsely accused of such an odious crime should not deny it upon his oath when he had the opportunity. The girl's master did give evidence. He swore that the girl's storywas totally false as regarded his having committed the crime. The girl, he said, had been sent to his shop (which was some distance from his house) on an errand, and had, after a short interval and some joking with his friend who came in, left it in the friend's company.
The jury acquitted him, being greatly dissatisfied with the girl's evidence. This was a very singular case. It clearly shows that in the class of cases under consideration accused persons will, if the law is altered, have to swear to their innocence, unless the facts of the case are undisputed, or else be taken, and not unjustly, to have confessed their guilt.
No doubt there are cases in which silence does not admit guilt. A number of men were indicted for a rape; their defence was consent, of which there was strong evidence in the prosecutrix's own story. Two of them gave evidence, but the second of the two made such a pitiable exhibition of himself, especially in answering questions asked of him by the jury, that the rest preferred to keep silence. They were all acquitted, but this was because their evidence could not have materially varied the facts, whilst their silence was under the circumstances not surprising and not inconsistent with the defence set up. All that their silence admitted was that they had been concerned in a disgraceful transaction.
Cases sometimes occur in which the evidence of a prisoner is useless because it is out of his power to give the only evidence which would be of use to him. A man was tried for murder. He had spent the greater part of the day before the murder with the murdered man, and was seen in his company late at night near the place where his dead body was discovered next morning. In the course of the morning after the discovery of the murder the prisoner exhibited to several people the murdered man's watch, and finally sold it to a companion, who kept it for some time, and minutely described it at the trial. Hearing of the murder, and, fearing he might get into trouble about the watch, the purchaser gave it back to the prisoner. The prisoner did not produce it at the trial, and neither gave nor suggested any account of it. This the jury regarded as being inconsistent with any other supposition than that he did not produce it because it had belonged to the murdered man, and so would, if produced, have procured his conviction. It is obvious that in this case the prisoner's evidence would have been useless, unless he had been able to produce or account for the watch. As the charge against him was murder, he was not a competent witness; but a very similar case under the Criminal Law Amendment Act occurred very lately. A man was indicted for a rape. The question was as to the identity of the prisoner, as to which the account of the prosecutrix was highly unsatisfactory, or at least very doubtful. The prisoner was a soldier. The prosecutrix saw him with other men at the barracks soon after the crime. She hesitated as to his identity, and even denied it at one time, though at the trial she spoke to it with the utmost confidence, giving reasons for her previous mistakes. On this evidence, had it stood alone, the man must have been acquitted. The woman had, however, been robbed of a purse containing three or four coins, which she specified—one being a half-sovereign, kept in a small compartment of the purse with a separate clasp. It was proved that immediately after the commission of the offence the prisoner was at a public-house, in which he saw an amber mouthpiece for cigars. He bought it from the landlord after some talk, in the course of which he displayed a purse exactly corresponding to the description of her purse given by the prosecutrix, not only in its shape, colour, and material, but in the coins it contained, and the way they were distributed in it. The prisoner said nothing of the purse, and did not produce it. This caused his conviction. He was not called as a witness, and there would have been no use .in calling him if he had not been able to produce a purse like the one seen by the publican but different from the one stolen from the prosecutrix.
[This was, I believe, because it did not occur to his counsel that he was a competent witness; the crime was committed before the Act came into force, and the trial took place afterwards. I should have admitted his evidence if it had been tendered.]
This was an instructive case in another way. If it had not been for the purse, the prisoner would probably have been acquitted on account of the weakness of the evidence of the prosecutrix, and his evidence would have been immaterial even if hers had been stronger. He was unquestionably near the place at the time of the crime, and had not more than perhaps a quarter of an hour to account for. If he had sworn that he was lounging about the streets (as he had been just before) for this quarter of an hour, and did not commit the crime, his evidence would, for reasons already given, have made no difference. It may seem to be paradoxical to say so, but it is nevertheless true that the class of accused persons who will get least advantage from having their mouths opened are those who are entirely innocent of and unconnected with the crime of which they are charged—people who have nothing to conceal and nothing to explain. The only way in which the most innocent man can prove his innocence of a crime, of which he knows nothing whatever, is by proving (as by an alibi) that it was physically impossible that he should commit the crime; this in many cases he would be able to do only by his own uncorroborated assertion. 'I was sitting quietly writing letters in my library at the time when you say I was committing a crime' would in many cases be all a man could say, and of such a statement he might have no corroboration whatever, and he might well have the means of leaving the room undiscovered.
If, however, there is a possibility of corroboration, the fact that a man can supply, so to speak, the threads on which the corroborating facts are strung may be of the greatest importance. A man was tried for a rape. His defence was an alibi. He gave a complete account of the way in which he passed the whole period during which the crime was being committed, and was corroborated as to several of the incidents which he said had happened during the interval. He had been at work making a bridge over a ditch; he came from thence to a corner of a field, where he heard some children returning from a school feast use language for which he reproved them. He went to his lodgings and remained there writing a letter for a considerable time, and finally he went to a club to which he belonged at a public-house some short way off. He was corroborated on each of these points. One man had lent him tools for his work and had seen him employed there. The children to whom he had spoken described where he was standing, what he said, and what gave occasion for his reproof. Several little incidents were proved about his writing his letter and leaving it to be posted, and his arriving at his club, and so on. No doubt these facts might have been independently proved, and they might have had the same effect as they had in fact, but nothing could have given the effect of the ease, vivacity, and spirit with which he told his story, his entire absence of embarrassment, and the confidence with which he dealt with all the different questions put to him.
It must never be forgotten in connection with this subject that there are differences between people who tell the truth and people who lie, which it is not easy to specify, but which are none the less marked and real. I have known cases in which a jury has acquitted merely upon hearing an accused person tell his tale, and in which I felt perfectly confident they were right. A girl, between thirteen and sixteen, prosecuted a hawker for an offence against her under the Act of 1885. He had no counsel, and he did not much cross-examine her, but he gave his own account of the matter in a. way which led the jury to stop the case and declare that they did not believe a word of the girl's story. Theoretically, the two stories were no more than an affirmation on the one side and a contradiction on the other. The girl affirmed that the man had committed the offence, and that he had, when charged by her and her mother, admitted it; and the mother corroborated her daughter as to the last assertion. The man denied the offence, and said (and in this his wife confirmed him) that when the girl came to his house he threatened to kick her out and prosecute her. More particularly, the girl declared that on a particular day and at a particular place the man called her into the house and committed the offence. The man gave a minute description of where he was and what he was doing on the day in question, of his having met the girl and scolded or, as he called it, 'chastised' her for some fault, and of her behaviour to him on the occasion. It would not be easy even by entering into minute details to give all the reasons for my opinion, but I do not think that anyone who heard this man give his evidence could have doubted its entire truth. He was a grave, elderly man with no kind of special talent, and with a slight impediment or imperfection in his speech; but all that he said had upon it the mark of honestly and sincerity, and the details which he gave—though, having no legal advice, he was not prepared to prove them by independent evidence—were in themselves some guarantee of his truthfulness. It is little less than a monstrous denial of justice that a man so situated should be deprived of the opportunity of telling the truth in his own behalf under every sanction for his truthfulness that can be devised; and I think that nothing but the force of almost inveterate habit could blind us to the fact.
It ought not, however, to be forgotten that the opening of the mouths of prisoners opens a way to falsehood as well as to truth, and sometimes to falsehood which it is difficult at the moment to unmask. I have known cases in which—as it appeared to me—failures of justice have occurred because the prisoner, either from artfulness or from mere blundering, kept back till the last moment some more or less specious topic of defence, and brought it out at last when it was too late to test the matter properly. Three soldiers were tried for a rape, which no doubt was committed. The evidence against perhaps the most prominent of them was that he had a bugle upon which he repeatedly blew while the crime was being committed, the whole party being probably more or less in liquor. He swore positively, and with many piteous appeals, that he was not only innocent, but that it was physically impossible for him to blow upon a bugle because he had lost his front teeth, which loss he exhibited to the jury. Several persons in court, and one of the jurymen, professed to be acquainted with playing on the bugle, and one of them swore to his conviction that it was in fact physically impossible that the prisoner should play. The jury, upon this, acquitted all the three prisoners, thinking, no doubt, that a failure in the identification of one of the three greatly shook the evidence against the other two. I was afterwards informed that the bugle was actually taken from the man on his return to the barracks shortly after the offence. Whether I was rightly informed I cannot, of course, say; but the prisoner undoubtedly by keeping his defence back to the last moment, and then bringing it unexpectedly before the jury, got an advantage which he assuredly ought not to have had.
This trick of keeping back a defence is one of the most dangerous to public justice which could be played by persons accused of crime. I have known many cases of it, and I think it is well worthy of consideration whether, before their committal, prisoners ought not to be examined before the magistrates, and whether a power of adjournment might not be entrusted to judges when such points are raised, in order that they might be properly dealt with.
It would be of little use or interest to multiply these stories. It is enough to say that they show clearly, in respect at all events of one particular class of crimes, that the evidence of an accused person resembles that of any other witness in all essential respects—that is to say, its value varies from case to case according to circumstances. In. the case of a man, truthful, resolute, with a good memory and adequate power of expression, it is great, and may, under circumstance, be decisive. In other cases it is of less importance; in many instances it is practically of no more use than a bare plea of not guilty; and this, I think, is more than enough to show that it ought never to be excluded, but in all cases be taken for whatever it may be worth.
I have already observed upon the circumstance that the numerous exceptions to the general rule of law which have now been introduced into it make the law an absurdity. It is impossible to justify both the rule and the exception. But this is not the only observation which arises upon the present state of the law. Another is, that the class of crimes as to which the most important exception to the rule which incapacitates prisoners as witnesses is made is far from being the one in which that rule is most likely to be mischievous. In regard of offences of an indecent character there is, as a rule, a plain well-marked question of fact. Were certain things done or not, and was the prisoner the man who did them? But in respect of crimes against property this is not the case. Such offences are often complicated transactions, full of details, of which different views may be taken and different accounts given, on the special nature ot Which depends the question of guilt or innocence. A case of theft, false pretences, embezzlement, or fraudulent bankruptcy will often turn upon matters in which it is of the utmost importance that the prisoner should be examined and cross-examined. I remember a case in which a prisoner was tried for embezzlement. He was defended by counsel, and was convicted. When called upon to say why he should not be sentenced, he gave an account of the transaction which his counsel had never suggested, but which, on questioning the witnesses who had testified against him, appeared to be, to say the very least, so highly probable, that the jury desired to withdraw their verdict, and instead to return a verdict of not guilty, which was done. This was an illustrative case, and one of considerable interest. It shows both the strong and the weak sides of the proposed change in the law. It shows its strong side, because it gives an instance in which a man was enabled by telling his own story to escape from what would presumably have been an unjust conviction. It shows, or rather suggests, its weakness, because it shows' how great an opportunity the examination of prisoners might afford for artfully contrived frauds and evasions of justice. Each of these observations requires some development.
To take the strong side first. It must always be borne in mind that the business of prosecuting and defending prisoners, though in some respects the most important branch of legal business, is the least important of all if it is measured in money, and that it is in many cases in the hands of the lowest class of solicitors and the least experienced class of barristers. A great criminal trial, in which the prisoner has plenty of money, and in which the prosecution is conducted by the Treasury, is susceptible of little improvement, but the case with the common run of criminal business is totally different. If the prisoner is not defended at all, he may, and often does, fall into every kind of mistake. He may have a good defence, and not know how to avail himself of it. He may be shy and ill-instructed, and not put it forward at the proper time. He is probably not aware of his rights in respect to the calling of witnesses, and may therefore not be prepared with them at his trial. If, on the other hand, he is defended, he is in all probability in the hands of a solicitor of the lowest class, to whom he and his friends probably give some very small sum, say £2 or £3. The solicitor gets from the clerk to the magistrates a copy of the depositions, puts on the back of them a sheet of paper endorsed 'Brief for the prisoner, Mr. -----, one guinea,' pays some junior counsel £1, $s. 6d., and tells him that the nature of the case appears from the depositions. The counsel does as well as he can upon his materials, repeating with more or less energy and ingenuity the commonplaces appropriate to the occasion, and making the most of whatever he may have been able to obtain by cross-examination. The result is, that if the case of a pauper client presents any intricacy or requires any special attention, it is very apt to be mismanaged and misunderstood. I have no doubt that in the case of embezzlement to which I have referred, something like this had happened. The prisoner's counsel was a busy and able man, he had obviously no instructions which deserved the name, and I suppose knew nothing about the case beyond what the depositions told him and what the prisoner could tell him in a few hurried unintelligible whispers from the dock, and so he exposed his client to an imminent risk of conviction.
From dangers of this sort prisoners would be effectually protected by being made competent witnesses. They would be sure, at all events, of telling their own stories and, if the judge was competent and patient, of having them understood.
In order to appreciate the importance of this it is necessary to bear in mind the fact that it is often exceedingly difficult to understand prisoners, and to appreciate the real nature of what they have to say, and also that it is quite essential to justice that they should be understood, and lastly that far the easiest and safest way of doing this is by questioning them. A prisoner, generally speaking, is an ignorant, uneducated man, dreadfully frightened, very much confused, and almost always under the impression that the judge and the jury know as much about his case as he does himself, and are able at once to appreciate whatever he says about it although what he has to say consists mainly of imperfect allusions which he does not explain. I remember a case in which five or six men were tried for wounding A. with various intents, also for wounding B. with various intents, also for being armed by night in search of game. The defence of some of them was that two parties of poachers set out at night together in company; that at a certain point they separated, one having a white dog with them and the other what they called a red dog; that after they separated the party with the white dog met the keepers and police, and committed the different offences with which all were charged, whereas the party with the red dog had nothing to do with them. The men were tried three separate times on the three charges I have mentioned. It was only by degrees that they succeeded in making their defence intelligible. At the first trial the only hint given of it was by one of the red dog party who asked one of the witnesses the colour of the dog he said he had seen with the men whom he identified. The witness said it was white. 'That's a lie,' said the prisoner, 'it were red.' Not a word was said to explain in any way the meaning of the question or the importance of the answer. It requires a good deal both of patience and experience to understand and disentangle the stories which prisoners often set up. At an assize held a few months ago, a good many of the prisoners took it into their heads to write their defences, and to ask that they might be read to the jury. They were strange compositions, but it was usually possible, though difficult, not only to extract from them an intelligible defence, but to examine the witnesses by the help of it in such a way as to test its truth. One prisoner, I remember, who was charged with theft, made bitter complaints, by way of an irregular cross-examination, about his wife, his sister, and several other persons. In his mouth these complaints and reproaches were wholly unintelligible, thanks to the combined effects of ignorance, confusion, fear, and anger; but I found it possible, by giving him hints, which I must own were questions in all but form, to find out what he really meant, which was that the charge against him was a false one, got up from base motives, and founded upon the misrepresentation of innocent actions. The jury thought the defence important enough to justify his acquittal. If he could have been called as a witness, the matter would have been arranged much more clearly and satisfactorily.
In cases of this kind I have no doubt that it would be in the highest degree conducive to justice to make prisoners competent witnesses; but it must not be forgotten that prisoners are not always needy or ignorant. They are in many cases thoroughly well aware of their position, and are well provided with money and with the professional assistance which money will procure. It certainly is to be feared that in such a case a prisoner would be so well advised a-; to his position, and as to the strong and weak points of his case, that he would be able in the witness-box to lie with skill and effect. I think that this, especially in capital cases, would be dangerous to the interests of justice. It may be supposed that legal advisers would be too honourable to devise lies for their clients to tell, and I feel no doubt that honourable men would not say openly and crudely, 'You must, in order to save your life, swear this or that.' I do not believe they would do so, but I have no doubt that in the course of the preparation of the case the client would be made fully aware of its weak as well as its strong points. He would be told where his danger lay. He would be asked to give explanations on this point and that, he would be asked whether such and such person might not be able to testify on such and such points, and he would in practice require no more. It must also be remembered that people do not in real life repose absolute confidence in their legal advisers, nor are they pressed to do so. [An eminent colleague of mine told me that in his early days at the bar he was asked by the judge to defend a case of murder. He went to the gaol to confer with his client, and asked him, for one thing, how he accounted for the blood with which his waistcoat was covered after the crime, The man seemed puzzled for a moment, and then said, • Well, sir, don't you think you might say that perhaps my nose might have been bleeding?' My friend wished him good morning, and said he had no more to ask.] As a rule they put before their advisers as good an account of what has happened as circumstances permit, and leave it to the lawyers to put the matter into shape. The best proof of this is to be found in the evidence given by the parties in civil actions. In nearly every civil action the parties contradict each other more or less, generally on the vital parts of the case. But I think it would be unjust to throw the blame on the solicitors or on the counsel, though no doubt the evidence given is a good deal influenced by the light which the parties get from their legal advisers as to their legal position, and the bearing upon it of particular facts if established. In cases where life, liberty, and character were at stake, I have no doubt contradictions would become more pointed, and the provision of false or misleading evidence more artful and complete. I have, in short, little doubt that, if prisoners were made competent witnesses, there would be a considerable increase in perjury. The same thing was predicted as a natural consequence of the admission of the evidence of parties in civil actions, and I have no doubt that the prophecy has been fulfilled.
Few actions are, in my experience, tried in the Superior Courts of England and Wales in which there is not a good deal of rash and false swearing, and in a large proportion there is wilful perjury—that is to say, false evidence which cannot be accounted for either by rashness or prejudice or bad memory. I do not suppose, however) that anyone would wish to reimpose the old restrictions upon evidence which made the parties to a suit incompetent as witnesses. After all, courts of justice only show the national veracity as it is; they do not make it what it is. False evidence of every kind might at once be put an end to absolutely by shutting up the courts; but if they are to be open, people must take what they get in the way of evidence. I do not think, however, it can be denied that the change suggested would in fact greatly multiply perjury, and it is to be feared that, unless juries could be got to harden their hearts against accused persons and their oaths, wrong acquittals would become even commoner than they are. Jurors are usually ignorant, good-natured men, quite unaccustomed to the administration of justice, and willing to receive any plausible statement consistent with a prisoner's innocence as being enough at least to raise a reasonable doubt on the subject.
If the change in question should be made, it would, I think, be necessary to modify the old doctrine about proving beyond all reasonable doubt the guilt of an accused person, for it would be a matter of moral certainty that whenever a plausible story consistent with innocence could be devised, the prisoner would swear to it and find others to help him.
My experience upon this part of the subject is taken rather from the civil courts than from actual experience in criminal cases, for it is noticeable that in many scores of cases which I have tried and to which the rule of evidence laid down by the Act of 1885 applies, the accused person has in every case been too poor to be able to make full use of the resources which the Act lays open to people who have money and are well advised. If it is true, which I do not believe, that the crimes against which the Criminal Justice Act is directed are principally committed by rich men, it is also true that only those exceptional cases in which they are committed by the lowest and most brutal ruffians come into court. I think, however, that the experience of the divorce Court would confirm what I have said, both as to the necessity of allowing the parties to a suit to be competent witnesses, and as to the practically irresistible nature of the temptation to perjury which their competency provides.
There is one point on which the public naturally feel much anxiety as to the examination of prisoners, and on which I think the experience of trials under the Criminal Law Amendment Act throws great light. Nothing has operated so strongly as the example of France in causing the public to view with distrust and reluctance the proposal to make prisoners competent witnesses. It has been said that nothing which could be gained in the way of additional evidence by the examination of prisoners could compensate for what would be lost by a diminution of dignity in the whole proceeding, and by placing the judge in an attitude of hostility to the prisoner. With this I entirely agree. The enactment in English courts of the kind of scenes which frequently occur in French courts, apparently without exciting any particular complaint, would certainly completely alter the whole character of our administration of justice; but I think that it may be clearly proved by experience that the consequence apprehended would not follow in fact, and it is not difficult to explain the reason why it would not follow.
As to the fact we have already abundant experience. Since the parties to a civil suit were made competent witnesses in 1851, no complaint has been made that they are worse treated than other witnesses. Notoriously, indeed, they are treated in exactly the same way, and those who are familiar with the actual practice of the courts will, I think, agree with me in the opinion that in the course of the present generation the treatment of witnesses has become gentler than it used to be, or, at all events, simpler and more direct. A stronger instance of the way in which the parties to an action are treated, and one which has a closer resemblance to what may be expected in criminal cases than the common run of civil actions, is afforded by the Divorce Court. In no class of cases are equally strong feelings excited, in none is perjury of the most artful kind more common or sturdy and determined; but I do not know that it is alleged (my own experience on the subject is too small to be worth mentioning) that the parties to divorce suits are treated in the witness-box with unfairness or cruelty. Certainly no imputation of any want of dignity or impartiality has been thrown on the distinguished judges who have presided in that court. If this is so, what reason is there to fear that prisoners should be worse treated in the witness-box than the parties are treated in civil cases or in divorce suits?
In the trials in which accused persons are competent witnesses I have not observed the smallest tendency to such treatment. I should say that prisoners were cross-examined rather too little than too much. In particular I have hardly ever heard a prisoner cross-examined to his credit as to previous convictions.
As to the reasons of this, they are, I think, plain enough to any one who is acquainted with the spirit of the system and the nature of cross-examination. An English criminal trial is from first to last a question between party and party, and the position of the judge is one of real substantial indifference, in which he has neither any interest nor any vanity to gratify by the prisoner's conviction. This interest, such as it is, is always in favour of an acquittal, which frees him from the exercise of a painful and embarrassing discretion, and the only question which he has occasion to ask, either of the witnesses or of the prisoner, are such as tend to throw light on points in the case which for any reason are left in obscurity. In cases where the prisoner is poor and undefended this is a most important function, which at present is often discharged imperfectly, under great difficulties, or not at all, as I have already sufficiently shown. In cases in which a prisoner is competently defended the judge would as a rule be not only able but willing to sit still and listen, leaving the responsibility of sifting the facts to those whose natural and proper duty it is to sift them. As for cross-examination by counsel, many false impressions prevail. People who take their view on the subject from actual experience are well aware that counsel of any experience never try to prove their case by cross-examination. In respect to prisoners, counsel- in my experience, usually regard their duty as done when they have committed the prisoner to contradicting witnesses not likely either to commit perjury or to be mistaken. I have indeed been greatly struck with the moderation and brevity with which prisoners have usually been cross-examined before me. I think indeed, as I have already said, they have been cross-examined rather too little than too much.
A French criminal trial—and it is from the reports of French trials that English people get the notions unfavourable to the examination of prisoners which commonly prevail—is quite a different process from an English one, and proceeds from entirely different principles. It is in its essence an inquiry into the truth of a charge brought forward and supported by public authority, and the duty of the judge is rather to inquire than to direct and moderate. His examination of the prisoner is directed to this object, and the result, no doubt, is to produce scenes much at variance with what our notions, founded as they are upon principles and on practice of an entirely different kind, approve. It is no part of my present purpose to compare the two systems, or to criticise either of them. It is enough to say that there is no danger that a change in the procedure of the English system, made in exact conformity not only with its principles, but with the practice already established and in use in a large and important class of cases, should introduce amongst us what strike us as the defects of a system founded upon and administered according to totally different principles.
One point which appears to me of great practical importance in the matter of the evidence of prisoners is that provision should be made for their being examined as witnesses before they are committed, as well as at their trial. There cannot be a greater pledge of truthfulness and good faith. It is a common form for solicitors to advise their clients, when asked before their committal whether they wish to say anything, to answer, 'I reserve my defence.' How far this may be a convenient course in the case of a guilty person I do not say, but in the case of an innocent person who has a true and substantial defence to rely upon it is a great advantage to be able to say, 'This defence of mine is not an after-thought, it is what I have said all along. It is what I gave my accusers notice of as soon as I had an opportunity.' An alibi in particular is greatly strengthened if it is set up at once, and that for many reasons. 'In the first place, such a course gives the prosecution an opportunity of making inquiries and testing the evidence of witnesses. In the second place, the evidence of the witnesses is less open to attack, either on the ground of a failure of memory or on the ground of subsequent contrivance.
It is more difficult to say how this desirable result is to be obtained. One way of doing it would be to make the accused person not merely a competent but a compellable witness at every stage of the inquiry; to authorise the magistrates or the prosecutor before the magistrates to call him as a witness; and to provide that unless he gave evidence at the trial his deposition might be given in evidence. This course would no doubt be effectual, and I do not myself see why it should not be taken. I can understand, however, that there might be a feeling against it. It might be regarded as oppressive, and it might not improbably invest a certain number of police officers with a discretion which they are not fit to exercise. It is not uncommon for officers of the police to act as prosecuting solicitors in some parts of England and Ireland, and it may well be that such an addition to their powers would be objectionable. In matters of this sort the popularity of the law is more important than an increase of its efficiency, unless the increase of its efficiency is very great indeed. It is, however, important to obtain as general as possible a recognition of the fact that to keep back a defence is a suspicious thing, and that to bring it forward on the first opportunity is the strongest pledge of sincerity and truthfulness that can be given.
One point closely connected with this subject is the propriety of adding to the permanent and general law a provision to the same effect as that one which lately proved so useful in Ireland for the detection and suppression of systematic crime—power, namely, to the police authorities to hold an inquiry upon oath with a view to discover the authors of a crime, although no one may have been charged with it. It was one of the proposals of the Criminal Code Commission of 1878 that such a power should be given, and a clause to that effect was introduced into the Criminal Code which that Commission prepared. Upon general grounds I cannot understand the objection to such a measure. The practice exists in most parts of the world, and in England the principle is recognized by one of the oldest of our judicial institutions—the coroner's inquest. Of its utility for the discovery of crime it is necessary only to refer to the case of the murder of Lord Frederick Cavendish and Mr. Burke. It is, of course, possible to lament that discovery, but there can be no question at all as to the means by which it was brought about. With regard to all questions of the reform of the criminal law, whether in regard to the rules of evidence or otherwise, it must never be forgotten that those who fear that the criminal law may be applied to themselves or their friends for political offences of which they do not morally disapprove do not wish to see the efficiency of its administration increased.
For these various reasons I think that the old rule as to the exclusion of persons accused of crime from competency as witnesses ought to be entirely abolished, and that criminal and civil proceedings should so far be put upon the same footing. It would, however, be wrong, in advocating such a measure, not to point out one inevitable consequence. It is a consequence which has already been incurred in respect of all civil proceedings, and which I believe to be nearly inseparable from all improvements in the law. There are in all legal proceedings two interests which are diametrically opposed to each other, though their opposition is for the most part concealed, because its existence is one of those disagreeable truths which no one likes to admit. They are goodness and cheapness; either object may be attained, but not both. Up to a certain point it is no -doubt possible to combine and promote the two objects at once. If you have a system at once inefficient and costly, a system in which fees are imposed at every step for the purpose of providing for useless officials it is no doubt possible to increase efficiency and economy at the same time by a reduction of establishments and alterations in the law. This state of things did at one time exist to a considerable extent in regard to litigation in England, and it was possible to get the work better done at a less cost by proper alterations, but even at that time reforms usually were found to mean increased expenditure in the long run; and I think that, in regard to the administration of justice, the question in most cases is whether new elaborations are worth the price paid for them. I have a very decided opinion that in civil cases the procedure in the present day is too elaborate, though some recent efforts have been made for its simplification, I hope with success. I do not think this is so with regard to criminal justice. A certain number of criminal trials are still dealt with, not unfairly, not hastily, but without that degree of care to find out the truth which ought to be employed in every case in which liberty and character, and, indeed, a man's whole prospect of leading a respectable, prosperous life, may be at stake, but which an ignorant unadvised man cannot be expected to employ for himself. Many circumstances, some of which I cannot now remember, have produced a conviction in my mind that, if the whole truth were known, it would be found that many crimes are not so simple as they look, and that prisoners might often, if fully examined, bring to light facts which would set their conduct in an unsuspected light. This, I think, would certainly lengthen trials and might tend to complicate them considerably. Unless some means were taken to secure the taking of the prisoner's evidence fully before the magistrates, it would in all probability lead to the raising of false issues before juries, and make occasional adjournments for the purpose of summoning new witnesses necessary, and thus in various ways give a good deal of trouble to all the parties concerned; but I think it would contribute largely to the fairness of the ultimate result, and this is the main thing to consider.
The Nineteenth Century, October 1886.