Quintilian Institutio Oratoria 5.7

[1] It is, however, the evidence that gives the greatest trouble to advocates. Evidence may be given either in writing or orally by witnesses present in court. Documentary evidence is easier to dispose of. For it is likely that the deponent was less ashamed of himself in the presence of a small number of witnesses, and his absence from court is attacked as indicating a lack of confidence. If we cannot call the character of the deponent in question, we may attack the witnesses to his signature.

[2] Further there is always a certain tacit prejudice against documentary evidence, since no one can be forced to give such evidence save of his own free will, whereby he shows that he harbours unfriendly feelings towards the person against whom he bears witness. On the other hand an advocate should be chary of denying that a friend may give true evidence against a friend or an enemy against an enemy, provided they are persons of unimpeachable credit. But the subject admits of copious discussion, from whichever side it be regarded.

[3] The task of dealing with the evidence of witnesses present in court is, however, one of great difficulty, and consequently whether defending or impugning them the orator employs a twofold armoury in the shape of a set speech and examination. ¹ In set speeches it is usual to begin with observations either on behalf of or against witnesses in general.

[4] In so doing we introduce a commonplace, since one side will contend that there can be no stronger proof than that which rests on human knowledge, while the other, in order to detract from their credibility, will enumerate all the methods by which false evidence is usually given.

[5] The next procedure is the common practice of making a special attack, which all the same involves impugning the validity of evidence given by large numbers of persons. We know, for instance, that the evidence of entire nations ² and whole classes of evidence have been disposed of by advocates. For example, in the case of hearsay evidence, it will be urged that those who produce such evidence are not really witnesses, but are merely reporting the words of unsworn persons, while in cases of extortion, those who swear that they paid certain sums to the accused are to be regarded not as witnesses, but as parties to the suit.

[6] Sometimes however the advocate will direct his speech against single individuals. Such a form of attack may be found in many speeches, sometimes embedded in the speech for the defence and sometimes published separately like the speech against the evidence of Vatinius. ³

[7] The whole subject, therefore, demands a thorough investigation, as the task which we have in hand is the complete education of an orator. Otherwise the two books written on this subject by Domitius Afer would suffice. I attended his lectures when he was old and I was young, and consequently have the advantage not merely of having read his book, but of having heard most of his views from his own lips. He very justly lays down the rule that in this connexion it is the first duty of an orator to make himself thoroughly acquainted with the case, a remark which of course applies to all portions of a speech.

[8] How such knowledge may be acquired I shall explain when I come to the appropriate portion of this work. ⁴ This knowledge will suggest material for the examination and will supply weapons ready to the speaker's hand: it will also indicate to him the points for which the judge's mind must be prepared in the set speech. For it is by the set speech that the credit of witnesses should be established or demolished, since the effect of evidence on the individual judge depends on the extent to which he has been previously influenced in the direction of believing the witness or the reverse. And since there are two classes of witnesses ⁵

[9] those who testify of their own free will and those who are summoned to attend in the public courts of whom the former are available to either party, the latter solely to the accusers, we must distinguish between the duties of the advocate who produces witnesses and the advocate who refutes them.

[10] He who produces a voluntary witness is in a position to know what he is likely to say: consequently the task of examining him would seem to be rendered easier. But even here such cases make a great demand on the acumen and watchfulness of the advocate, who must see that his witness is neither timid, inconsistent nor imprudent.

[11] For the opposing counsel have a way of making a witness lose his head or of leading him into some trap; and once a witness trips, he does more harm to his own side than he would have done good, had he retained his composure and presence of mind. The advocate must therefore put his witnesses through their paces thoroughly in private before they appear in court and must test them by a variety of questions such as may well be put to them by his opponent. The result will be that they will not contradict themselves or, if they do make some slip, can be set upon their feet again by a timely question from the advocate who produces them.

[12] Still, even in the case of witnesses whose evidence is consistent, we must be on our guard against treachery. For such witnesses are often put up by one's opponent and, after promising to say everything that will help our case, give answers of exactly the opposite character and carry more weight by the admission of facts which tell against us than they would have done had they disproved them.

[13] We must therefore discover what motives they have for doing our opponent a hurt, and the fact that they were once his enemies will not suffice our purpose: we must find out whether they have ceased to be ill-disposed to him or whether they desire by means of their evidence to effect a reconciliation with him, in order to assure ourselves that they have not been bribed or repented of their previous attitude and changed their purpose. Such precautions are necessary even with witnesses who know that what they propose to say is true; but it is still more necessary with those who promise to give false evidence.

[14] For experience shows that they are more likely to repent of their purpose, their promises are less to be relied on, and, if they do keep their promise, their evidence is easier to refute.

[15] Witnesses appearing in answer to a subpoena may be divided into two classes: those who desire to harm the accused, and those who do not. The accuser sometimes is aware of their disposition, sometimes unaware. For the moment let us assume that he is aware of their disposition, although I must point out that in either case the utmost skill is required in their examination.

[16] For if an advocate is producing a witness who is desirous of harming the accused, he must avoid letting this desire become apparent, and must not at once proceed to question him on the point at issue. On the contrary this point must be approached by a circuitous route in such a manner as to make it seem that the statement which the witness is really desirous of making has been forced from him. Again lie should not press the witness too much, for fear he should impair his credit by the glibness with which lie answers every question, but should draw from him just so much as may seem reasonable to elicit from a single witness.

[17] On the other hand in the case of a witness who is reluctant to tell the truth, the essential for successful examination is to extort the truth against his will This can only be done by putting questions which have all the appearance of irrelevance. If this he done, he will give replies which he thinks can do no harm to the party which he favours, and subsequently will be led on from the admissions which he has made to a position which renders it impossible for him to deny the truth of the facts which he is reluctant to state.

[18] For just as in a set speech we usually collect detached arguments which in themselves seem innocuous to the accused, but taken together prove the case against him, so we must ask the reluctant witness a number of questions relative to acts antecedent or subsequent to the case, places, dates, persons, etcetera, with a view to luring him into some reply which will force him to make the admissions which we desire or to contradict his previous evidence.

[19] If this fails, we must content ourselves with making it clear that he is reluctant to tell what he knows, and lead him with a view to tripping him up on some point or other, even though it be irrelevant to the case; we must also keep him in the witness-box for an unusual length of time, so that by saying everything that can be said and more than is necessary on behalf of the accused, he may be rendered suspect to the judge. Thus he will do the accused no less harm than if he had told the truth against him.

[20] But if (to proceed to our second supposition) the advocate does not know what the intentions of the witness may be, he must advance gradually inch by inch and sound him by examination and lead him step by step to the particular reply which it is desired to elicit.

[21] But since these witnesses are sometimes so artful that their first replies are designed to meet the wishes of the questioner, in order to win all the greater credit when subsequently they answer in a very different way, it will be the duty of the advocate to dismiss a suspect witness while he can still do so with advantage.

[22] In the case of advocates for the defence examination is in some respects easier, in some more difficult. It is more difficult because it is rarely possible for them to have any previous knowledge of what the witness is likely to say, and easier because, when they come to cross-examine, they know what he has already said.

[23] Consequently in view of the uncertainty involved, there is need for careful inquiry with a view to discovering the character of the witness against the accused and what are his motives for hostility and what its extent: and all such points about the witness should be set forth in advance and disposed of, whether we desire to represent the evidence against the accused as instigated by hatred, envy, bribery or influence. Further, if our opponents bring forward only a small number of witnesses, we must attack them on that head; if on the other hand they produce an excessive number, we must accuse them of conspiracy: if the witnesses are persons of inconspicuous rank, we must minimise their importance, while if they are powerful, we shall accuse our adversaries of bringing undue influence to bear.

[24] It will, however, be still more helpful if we expose the motives which they have for desiring to injure the accused, and these will vary according to the nature of the case and the parties concerned. For the other lines of argument mentioned above are often answered by the employment of commonplaces on similar lines, since the prosecutor, if he produce but few witnesses of inconspicuous rank, can parade the simple honesty of his methods on the ground that he has produced none save those who are in a position to know the real facts, while if he produce a number of distinguished witnesses, it is even easier to commend them to the court.

[25] But at times, just as we have to praise individual witnesses, so we may have to demolish them, whether their evidence has been given in documentary form or they have been summoned to appear in person. This was easier and of more frequent occurrence in the days when the examination of the witnesses was not deferred till after the conclusion of the pleading. ⁶ With regard to what we should say against individual witnesses, no general rules can be laid down: it will depend on the personality of the witness.

[26] It remains to consider the technique to be followed in the examination of witnesses. The first essential is to know your witness. For a timid witness may be terrorised, a fool outwitted, an irascible man provoked, and vanity flattered. The shrewd and self-possessed witness, on the other hand, must be dismissed at once as being malicious and obstinate; or refuted, not by cross-examination, but by a brief speech from the counsel for the defence; or may be put out of countenance by some jest, if a favourable opportunity presents itself; or, if his past life admits of criticism, his credit may be overthrown by the scandalous charges which can be brought against him.

[27] It has been found advantageous at times when confronted with an honest and respectable witness to refrain from pressing him hard, since it is often the case that those who would have defended themselves manfully against attack are mollified by courtesy. But every question is either concerned with the case itself or with something outside the case. As regards the first type of question counsel for the defence may, by adopting a method which I have already recommended for the prosecutor, ⁷ namely by commencing his examination with questions of an apparently irrelevant and innocent character and then by comparing previous with subsequent replies, frequently lead witnesses into such a position that it becomes possible to extort useful admissions from them against their will.

[28] The schools, it is true, give no instruction either as to theory or practice in this subject, and skill in examination comes rather from natural talent or practice. If, however, I am asked to point out a model for imitation, I can recommend but one, namely that which may be found in the dialogues of the Socratics and more especially of Plato, in which the questions put are so shrewd that although individually as a rule the answers are perfectly satisfactory to the other side, yet the questioner reaches the conclusion at which he is aiming.

[29] Fortune sometimes is so kind that a witness gives an answer involving some inconsistency, while at times (and this is a more frequent occurrence) one witness contradicts another. But acute examination methodically conducted will generally reach the same result which is so often reached by chance.

[30] There are also a number of points strictly irrelevant to the case on which questions may be put with advantage. We may for example ask questions about the past life of other witnesses or about the witness' own character, with a view to discovering whether they can be charged with some disgraceful conduct, or degrading occupation, with friendship with the prosecutor or hostility toward the accused, since in replying to such questions they may say something which will help our cause or may be convicted of falsehood or of a desire to injure the accused. But above all our examination must be circumspect,

[31] since a witness will often launch some smart repartee in answering counsel for the defence and thereby win marked favour from the audience in general. Secondly, we must put our questions as far as possible in the language of everyday speech that the witness, who is often an uneducated man, may understand our meaning, or at any rate may have no opportunity of saying that he does not know what we mean, a statement which is apt to prove highly disconcerting to the examiner.

[32] I must however express the strongest disapproval of the practice of sending a suborned witness to sit on the benches of the opposing party, in order that on being called into the witness-box from that quarter he may thereby do all the more damage to the case for the accused by speaking against the party with whose adherents he was sitting or, while appearing to help him by his testimony, deliberately giving his evidence in such an extravagant and exaggerated manner, as not only to detract from the credibility of his own statements, but to annul the advantage derived from the evidence of those who were really helpful. I mention this practice not with a view to encourage it, but to secure its avoidance. Documentary evidence is not frequently in conflict with oral. Such a circumstance may be turned to advantage by either side. For one party will rest its case on the fact that the witness is speaking on oath, the other on the unanimity of the signatories. ⁸

[33] Again there is often a conflict between the evidence and the arguments. One party will argue that the witnesses know the facts and are bound by the sanctity of their oath, while the arguments are nought but ingenious juggling with the facts. The other party will argue that witnesses are procured by influence, fear, money, anger, hatred, friendship, or bribery, whereas arguments are drawn from nature; in giving his assent to the latter the judge is believing the voice of his own reason, in accepting the former he is giving credence to another.

[34] Such problems are common to a number of cases, and are and will always be the subject of vehement debate. Sometimes there are witnesses on both sides and the question arises with regard to themselves as to which are the more respectable in character, or with regard to the case, which have given the more credible evidence, with regard to the parties to the case, which has brought the greater influence to bear on the witnesses.

[35] If to this kind of evidence anyone should wish to add evidence of the sort known as supernatural, based on oracles, prophecies and omens, I would remind him that there are two ways in which these may be treated. There is the general method, with regard to which there is an endless dispute between the adherents of the Stoics and the Epicureans, as to whether the world is governed by providence. The other is special and is concerned with particular departments of the art of divination, according as they may happen to affect the question at issue.

[36] For the credibility of oracles may be established or destroyed in one way, and that of soothsayers, augurs, diviners and astrologers in another, since the two classes differ entirely in nature. Again the task of establishing or demolishing such evidence as the following will give the orator plenty to do; as for example if certain words have been uttered under the influence of wine, in sleep or in a fit of madness, or if information has been picked up from the mouths of children, whom the one party will assert to be incapable of invention, while the other will assert that they do not know what they are saying.

[37] The following method may not merely be used with great effect, but may even be badly missed when it is not employed. You gave me the money. Who counted it out? Where did this occur and from what source did the money come? You accuse me of poisoning. Where did I buy the poison and from whom? What did I pay for it and whom did I employ to administer it? Who was my accomplice? Practically all these points are discussed by Cicero in dealing with the charge of poisoning in the pro Cluentio. ⁹ This concludes my observations upon inartificial proofs. I have stated them as briefly as I could.