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Law of
Evidence.

How far a party may discredit his

individual; and it was thought that it might be left to a judge to ascertain whether an objection professed by a witness in such circumstances was sincere or not. Accordingly, if any person called as a witness now refuses to be sworn from alleged conscientious motives, the judge may, upon being satisfied of the sincerity of the objection, permit the witness, instead of being sworn, to make a solemn affirmation or declaration; which, it is enacted, shall be of the same force and effect as if the witness had taken an oath in the usual form (s. 20).

It occasionally happens that a witness, called under a belief that he will prove a certain fact, own witness. turns round upon the party calling him, and proves directly the reverse. The party calling the witness is not precluded from proving by other testimony what the witness has negatived; but ought he to be allowed to discredit his own witness, either by impeaching his character, or by showing that he has previously made statements at variance with the evidence given by him? On this point the decisions of the court have been conflicting.

"For the admissibility of the proposed evi"dence, it is said that this course is necessary as

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a security against the contrivance of an artful "witness, who otherwise might recommend him"self to a party by the promise of favourable evi"dence (being really in the interest of the oppo"site party), and afterwards by hostile evidence "ruin his cause; and that the power of proving contradictory statements ought to be the same, "whether the witness is called by the one party

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or the other that such a power is necessary "for the purpose of placing the witness fairly "and completely before the court, and for enabling the jury to ascertain how far he deserves to be believed: that the ends of justice

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are best attained by allowing the fullest power Law of "for scrutinizing and correcting evidence, and Evidence. "that the exclusion of the proof of contrary

66 statements might be attended with the worst consequences.

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"The chief objection to the proposed evidence 66 appears to be, that a party, after calling a "witness as a witness of credit, ought not to be "allowed to discredit him. The objection pro"ceeds upon the supposition that the party first acts on one principle, and afterwards, being disappointed by the witness, turns round and acts upon another, thus imputing to the party something of double dealing or dishonest practice. "But it is evident that this does not apply to the case where a party, having given credit to a "witness, is deceived by him, and first discovers "the deceit at the trial of the cause. To reject "the proposed evidence in such a case, and repress the truth, would be to allow the witness "to deceive both jury and party, and might work "serious injustice."(Second Report, p. 16).

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The argument in favour of the admissibility of the proposed evidence is powerfully put by Lord Denman in his judgment in the case of Wright v. Beckett.-"If the witness professing to be "mine," says his lordship, "has been bribed by "my adversary to deceive me,-if, having taught me to expect the truth from him, he is induced

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by malice or corruption to turn round upon me "with a newly-invented falsehood, which defeats my just right, and throws discredit on all my "other witnesses,-must I be prevented from showing the jury facts like these? Suppose "that in some dispute happening in the street a bystander declares his name to one of the contending parties, and his readiness to prove his "conduct blameless; that he attends the solicitor, "and gives in his deposition to the same effect,

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Law of
Evidence.

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"but, when sworn in open court, takes part with "the adversary. The question then is, whether "he is to be believed, or the other witnesses "called by the same party. Some one in court happens to know him, and whispers to the attorney, He has deceived you in every way; "he has given you a false name; he is the ""adversary's brother and partner moreover, he "❝has been for years notoriously infamous!' Or, suppose such a trial for misdemeanour as some "that have lately revolted the public mind; and "that some stranger, after voluntarily offering "his testimony to a calumniated man, should 66 unexpectedly side with his false accuser. If "the rule against discrediting your own witness "must be strictly construed, these deceptions "cannot be exposed. You will be told that you "have called him; you must take him for better "and for worse, and must be bound by all his 66 statements. Or, if you are permitted, by reason of your late discovery of these facts, to 66 prove them for your own necessary protection, "this must be, because the rule cannot apply to 66 a case where such facts are brought to your "knowledge after you have placed him in the "witness-box. The rule, therefore, is limited by "that condition; and you shall be at liberty to "discredit your witness by such evidence, because "you have been deceived and surprised. Can any reason then be assigned, why, when equally "deceived by his denying to-day what he asserted yesterday, you should be excluded from showing "the contradiction into which, from whatever motive, he has fallen? It is clear that, in "civil cases, the exclusion might produce great injustice, and in criminal cases improper acquit"tals and fraudulent convictions."

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The Commissioners were of opinion, with Lord Denman, that a party should be permitted not

Evidence.

only to contradict the testimony of his own wit- Law of
ness by other evidence, but also to prove that the
witness himself had made opposite statements.
The Legislature has acted on this opinion. While,
then, a party producing a witness is not to be
allowed to impeach his credit by general evidence
of bad character, he may, if the witness in the
opinion of the judge proves adverse, contradict
him by other evidence, or, by leave of the judge,
prove that he has made at other times a statement
inconsistent with his present testimony.

But

before such last-mentioned proof can be given, the circumstances of the statement, sufficient to designate the particular occasion, must be mentioned to the witness, and he must be asked whether or not he has made such statement (s. 22).

statements of

witnesses.

In cross-examination, it is frequently material, Proof of conwith a view of impeaching the credit of an tradictory adverse witness, to show that he has previously adverse made statements different from those to which he has deposed in court. If these statements were verbal, and the witness, having been crossexamined on them, so as to give him an opportunity of explanation, denies having made them, evidence may be adduced to prove the statements as to which he has been cross-examined.

The rule of law is thus stated by Mr. Baron Parke, in Crowley v. Page, 7 C. & P. 791: "Evidence of statements by witnesses on other "occasions relevant to the matter at issue, and "inconsistent with the testimony given by "them on the trial, is always admissible in "order to impeach the value of that testimony; "but it is only such statements as are relevant that are admissible, and, in order to lay a founda"tion for the admission of such contradictory "statements, and to enable the witness to explain

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Law of
Evidence.

adverse

witnesses.

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them, and, as I conceive, for that purpose only, "the witness may be asked whether he ever said "what is suggested to him, with the name of the person to whom or in whose presence he is sup66 posed to have said it, or some other circumstance sufficient to designate the particular occa"sion. If the witness, on the cross-examination, "admits the conversation imputed to him, there "is no necessity for giving further evidence of it; "but if he says he does not recollect, that is not an "admission, and you may give evidence on the "other side to prove that the witness did say "what is imputed, always supposing the state"ment to be relevant to the matter at issue. "This has always been my practice. If the rule 66 were not so, you could never contradict a "witness who said he could not remember."

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A doubt has arisen on the law as laid down by Mr. Baron Parke, in consequence of Lord Chief Justice Tindal having, in one case, said he had never heard such evidence admitted in contradiction, except where the witness had expressly denied the statement; and of Lord Abinger having, on another occasion, expressed a similar opinion. This conflict of authority has been set at rest, and Mr. Baron Parke's ruling, as "the most sound and fittest to be followed," has been expressly enacted.

Proof of con- If a witness, upon cross-examination as to a tradictory statements of former statement by him, inconsistent with his present testimony, does not distinctly admit that he has made such statement, proof may be given that he did in fact make it. But before such proof can be given, the circumstances of the statement, sufficient to designate the particular occasion, must be mentioned to him, and he must be asked whether or not he has made such statement (s. 23).

When the contradictory statement alleged to

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