17 May 1804

Evidence

Forthcomingness

Ch Investigatorial

§ 4 Rule 3

2. In cases where a second hearing is necessary a definitive hearing is necessary, over and above the preparatory one, in the course of which testimony that has been heard already in the course of a preparatory examination, comes again to be heard on the occasion of a definitive general examination (as in the case of an English trial for a felony) it is of use that the Judge who pronounces and presides at the /such/ second examination of the same witness should have been present at the first examination of the same witness - why? because he will be better enabled in this case than he could have been otherwise /in this case he will be enabled in a degree in which he could not have been otherwise to judge of the consistency and thence of the veracity and correctness of the testimony given by the witness on the ultimate examination on the result of which the decision depends. On the first examination, a witness, whether party or extraneous witness is taken in a great measure unprepared, and comparatively speaking without being possessed of the data necessary for subservient to the purpose of concerting a plan of falshood: on this occasion the visible but undesirable part of his deportment constitutes an instructive fund of circumstantial evidence. + In any subsequent examination he has always time, and frequently data, for correcting his evidence otherwise than according to truth - for dropping or explaining away known falshoods improbabilities and self-contradictions. If the Judge present at the first /preparatory/ examination is not present at the definitive examination of the same witness, this fund, this highly instructive and unsuspicious fund of information is lost, and false lights will be apt to take its place.