Reflections and Comments 1865-1895Godkin, Edwin Lawrence
General
Reflections and Comments 1865-1895
Godkin, Edwin Lawrence
Essays
The problem, therefore, is to devise some means by which these
benefits of a searching cross-examination may be retained and yet
the abuse got rid of. The only feasible way of meeting the
difficulty yet proposed is that of drawing up a series of rules or
general directions as to evidence which shall not attempt to
prescribe formal limits for cross-examination, but shall lay down in
explicit words the general principles which should govern a judge in
such cases. These rules would practically be a definition of the
"discretion" he is now supposed to exercise. They would, for
example, direct him not to allow an examination into matters so
remote in time from the case in hand that they can have no bearing
on the credibility of the witness; not to allow questions to be put
which are plainly malicious and asked for the purpose of irritating
the witness; and not to allow any examination into transactions
which, though they may have a bearing on the character of a witness,
have none on his credibility, _e.g._, an inquiry, in a murder case,
of a witness in good standing, as to domestic difficulties with a
deceased wife. It is not easy to lay down beforehand any rules by
which we can discriminate the kind of evidence as to transactions
involving moral character which ought not to affect credibility, but
every one can easily imagine instances of such evidence. General
directions of the kind we have just suggested are no more than a
formal enunciation of the manner in which the "discretion" of a good
judge would be and is exercised. They do not change the law, but
they remind judges of what they may forget, and they may be appealed
to by a persecuted witness with far more certainty than judicial
"discretion." In the Indian Code, which is probably the best body of
law that the legal reform movement begun by Bentham in the last
century has yet produced, rules of this kind have been laid down,
and we believe have been found to work with success.
"THE DEBTOR CLASS"
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