March 1804

Evidence

Forthcomingness

Ch. Investigatorial

§.7. Course.

whole prejudice from the falshood falls exclusively upon the head of the interrogator, the plaintiff: as to the Def t, so far as he is served the better from the vexation, expense and delay that falls upon the head of his adversary, far from being prejudiced by the falsity, is served by it. If true, whatever prejudice it may be productive of to the defendant, it is not in the nature of it to be productive of any injury to him. To the plaintiff it can not be of any possible use, any further than as it is true. Of what possible use could any cross-examination be, performed by the defendant in this case be productive? To facilitate the extraction of the evidence? To produce this effect is the object of the primary examination - the object of the plaintiff. To obstruct - to prevent the extraction of the evidence /information/? It is not likely to produce /that I should/ produce this effect by any means: it is not possible for it to produce this effect by fair means. /is not likely: that it should produce it by fair means is not possible/.

Suppose the interrogation to be of the suggestive kind, be it ever so plainly suggestive, no possible injustice can ensue. Suppose it accordingly to run thus - did you ever hear Titus[?] speak of his having been present at the transaction in question. In the most ordinary state of things the question will not wear this suggested form, because in the ordinary state of things it supposes the interrogator to be already in possession of the information asked for; and then the person naturally addressed would not be any person in the character of an indicative witness, but the person / Titius himself/, supposed to be qualified to serve in the character of an ultimate witness. By accident however, the information /degree/ requisite to enable the interrogator to give this interrogative form to his question may have been obtained, and yet it may be more convenient to apply to the other individual the character of an indicative witness, than to apply in the first instance to Titius: as for instance, if the abode of the indicative witness be but at a distance of one days journey, and Titus be at the time in question distant by the amount of a six weeks voyage.