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GENTLEMEN OF THE GRAND JURY:
There is one crime to which I deem it never inappropriate to call the attention of a grand jury, even though there may be little probability that any complaint will render it a subject of present investigation. It is that high crime against the administration of public justice-called perjury-or the bearing of false witness. The man who commits this crime, does not merely offend against the laws of his country, but he also commits a breach of his word and religious obligations. Therefore, in speaking of it, I shall not confine my observations to the crime in its mere technical character, but consider it in connexion with the whole duty of one called upon to testify in a court of law.
Blackstone, quoting Sir Edward Coke, defines perjury to be a “crime committed when lawful oath is administered in some judicial proceeding to a person who swears wilfully, absolutely, and falsely, in a matter material to the issue, or point in question.” This definition is somewhat extended by our law. The 51st section of our statute “ concerning crimes and punishments," declares that every person of whom an oath or affirmation is or shall be required by law, who shall be convicted of wilfully swearing or affirming falsely in regard to any matter or thing respecting which such oath or affirmation is or shall be required, shall be deemed guilty of perjury. Something more than one witness, even though a probable and credible witness to the falsity of the testimony, is necessary in order to convict a person of this crime.
It must be proved to be deliberate and wilful false swearing—not the result of hurry in giving evidence, or of embarrassment, or defect of memory. It must be direct and absolute—not conditional—such as swearing, according to memory or belief, to that which is false; unless the belief or memory is different from that sworn to. It must be proved to be in a point material to the matter on which the witness has been required to testify. You will hence see, gentlemen, that it must often be no easy task to bring one guilty of this crime to condign punishment.
Human tribunals feel their inadequacy in this particular, and rely much on the moral and religious sentiments of the witness. To rouse these more completely into action, they appeal, through the solemnity of the oath, to the secret conscience—to. the witness's belief in God, and in his accountability here and hereafter. The requirements of that oath, to speak the truth, the whole truth, and nothing but the truth, are rendered clear by the plainness of its language; and if the witness allows it to have an abiding influence on his mind, he will not in any part fall short of his duty, or exceed it. Yet, from a variety of causes—sometimes arising from bias, sometimes from mere embarrassment, and sometimes from passion—the obligations of the oath, in its strictness, are not deeply felt; and the witness is betrayed into errors, and even into falsehoods. On such occasions, the witness often, without actually incurring the guilt of perjury, produces the same effect upon the verdict of the jury and judgment of the court, as if he had perpetrated the crime. To testify—and to testify truly and fully, is a duty which we owe to our country—to all humanity—as well as to the individual in whose cause we testify. Gentlemen, he is not fit to be a member of any community, who from habitual falsehood, or perverted moral feeling, is not to be trusted on his oath.
Truth in speech, is so essential to the existence of society, that could we suppose an individual whose tongue was framed only to falsehood, and never to truth, such an individual would inflict on himself the sentence of complete outlawry from all society—and if the character of such an individual was that of every human being, there would be an end to all social institutions. What, by a very extravagant supposition, we see may be thus brought about, can be just as effectually accomplished by destroying all confidence in the evidence on which our judicial tribunals must act. They can do nothing but give that evidence, whatever it may be, its legal effect-their decision must, or should be, according to the evidence; but if that evidence be false, their adjudications cannot be according to the rights of the case as they really are. And courts and juries would thus be made the mere instruments of perjury, whereby the innocent might be conricted and the guilty acquitted.
But let us examine false testimony in its different phases, and, whereever it is practicable, point out a remedy
False testimony exhibits its most odious form, undoubtedly, in direct technical perjury. Here there is no remedy but in the subsequent application of the legal penalties, or in a vigorous cross-examination during the trial. Such a cross-examination, vigorously pushed, rarely fails to involve the witness in contradictions, and to destroy the pernicious tendency of his testimony. Indeed, if he does not involve himself in contradictions, under such an examination, he generally betrays himself by exhibiting all the embarrassment and confusion of guilt; for the same reason that the wretch who is detected with stolen goods on his person, is hardly ever able to give an account of himself.
The next form in which false testimony appears is in mental reservation, or the use of equivocal language, which, though true in one sense, is designed to be received in another; and, thereby, to produce all the effects of direct false testimony. If this design could be proved, I hesitate not to say, that such a witness would lay himself liable to the penalties of perjury, as in the case of direct perjury. In foro conscientia, the guilt is the same—the effect is the same. Language is a medium for the communication of truth from one mind to another, and the witness who intentionally abuses it, must always inflict an injury upon himself or others.
This offence appears in another form, in the omission or suppression of facts material to the point in question. This is sometimes done from intention, sometimes from inadvertence, but oftener from doubt, or ignorance of what is material. The oath of the witness is to tell the truth, and the whole truth; if he wilfully suppresses a part, which he knows to be material, he manifestly commits perjury, if not in a legal and technical, yet in a moral and religious sense. But does the oath require him to go into all the particulars of a transaction—its minutest details—so as to leave nothing untold ? Certainly not. This would be endless. The true course for the witness to take is voluntarily to state every fact which he believes to be material to either party, or if he knows not what is material, to answer such questions as may be put to him, under the direction of the court, truly and fully, omitting nothing, as far as his knowledge extends, which may be necessary to make complete answer, however it may affect any party.
False testimony likewise arises occasionally from a spirit of habitual exaggeration. Let a witness under the influence of this pernicious habit in common conversation, come on the stand with ever so honest intentions, and he is constantly liable to be thrown off his guard in the course of examination; and, when he is, he not only destroys the credit of that portion of his testimony in which he exaggerates, but likewise that in which he has spoken truly. Were he to be indicted for perjury, thus committed, this habit of exaggeration would constitute as weak a defence, as intoxication, when offered in excuse for any other crime.
The bias of a witness is another source of false testimony. I speak not of bias from a direct interest in the events of a suit, but of that bias which arises from prejudice for, or against a party. There are some persons so constituted, that in all cases where their feelings are interested, they can take only a one-sided view of the question, and of cvery fact that appertains to it. The feelings of such persons act upon their memory and revive and magnify every fact that is in accordance with them, whilst those that make against them are entirely overlooked, or are recalled only to be depreciated, and discarded as of no consequence. This having been the frequent exercise of their minds, such persons when called on the stand, appear there with a memory already falsified, and are, perhaps, incapable of attesting to the truth as it would have existed in their memory, had it not been for this bias. This sort of bias originates from feelings too exclusively selfish-a selfishness which disfigures and distorts, and sees everything through its own false medium. True it is, that every body is liable to have his bias-his prejudice—but not a bias or prejudice of the sort of which I am here speaking. Gentlemen—a witness who has a strong sense of honor, and justice—who is a lover of truth, and duly appreciates his duty as a citizen and a man, though he may have his bias, yet it will be of that sort which takes character from the man, and will not prevent his fair and candid statement of facts on both sides. For if such a witness has been accustomed to reflect at all on the question, he has, from habit, weighed the facts on both sides; his own moral feelings have prompted him to consider all the facts with which he is acquainted, with a view to his own correct opinion. The bias of such a witness will detract nothing from the force of his testimony, though, were he of the character just before mentioned, it might bring his whole testimony into discredit. A cross-examination is the means by which these two characters are to be distinguished from each other. The one is blameless; the other highly censurable—as well for the false coloring which he has given to his testimony, as for the character which he has permitted his habits to form and transfuse into his testimony. It might be a nice legal question, whether false testimony resulting from a memory and judgment, thus previously falsified, would amount to technical perjury; yet, in a moral point of view, the man may be even something worse than perjured.
Gentlemen, the occasional misapplication of language by the witness, or the misapprehension of it by him in the questions of the examiner, is sometimes cause of false testimony, and even more frequently, the occasion of great embarrassment and confusion to the witness, resulting, perhaps, in the entire discredit of his testimony. A witness ought never to use a word with which he is not perfectly familiar, nor one which, with those to whom his evidence is addressed, is not in ordinary use. If an adept in any particular art or science be called, he may, indeed, be expected to use his appropriate technical language, but it should ever be accompanied with suitable explanations and illustrations. When a question is put to a witness, he ought never to answer it until he has a clear and distinct understanding of its import; if he does answer a question which he does not perfectly understand, he ought never to do it by the simple yea or nay, but he should answer it at large in his own terms, and his mistake, if any, will then be discovered, and he will at least avoid the charge of bearing false witness. I have known witnesses frequently, after having answered a question (thus misapprehended) by the simple yea or nay, to be drawn into a long and severe cross-examination—to involve themselves in apparent contradiction; and never, perhaps, until after the embarrassment and confusion of the trial was over, discover the cause, or be able to correct the error. The fault in this particular, I apprehend, lies more frequently on the part of the examiner than on that of the witness. Counsel, and indeed all of us, are too apt to suppose that words which are perfectly familiar to us, and which indeed are in very common use among those of ordinary education, are in just as common use, and are just as intelligible among the uneducated and ignorant, as among ourselves. This, I am persuaded, is a great mistake. Questions ought never to be put to any witness, by court, juror, or counsel, unless in the plainest mother English, such as no one can misunderstand. There are words enough of this description; and he who clothes his questions in these terms shows a far better taste and understanding than he who clothes them in what, to the witness, may be a high-flown halfLatin jargon. Even questions of delicacy may be put, by a skilful examiner, in these terms, in a manner as little offensive as in any other. There is, in general, no misconceiving the import of them one of them, well chosen, like a rifle ball, will go directly to the mark, when a whole handful of others will only show you whereabouts it lies. Whenever a word is used which a witness does not understand, he should ask the meaning of it; and frequently his question would be found more to his credit than to that of his examiner.