disclose the proceedings that take place in the grand jury room, on the ground that such proceedings are privileged.1 Other authorities hold that grand jurors cannot be sworn and examined as witnesses to impeach the validity or correctness of their finding, after an indictment has been regularly found and returned. But there are many modern decisions which hold that, since it is of highest importance to the maintenance of our ancient rights and liberties that no person be held to answer for a crime until he has been regularly accused in due form of law by the proper tribunal, neither the oath of the grand jurors, nor any sound rule of public policy, forbids the disclosure by a grand juror, or by any other person, of what took place before the grand jury, where the evidence is indispensable to public justice, or the establishment of private rights.20 The fact that a person did or did not testify before the grand jury, and the testimony given by him (if otherwise competent) may be proved by a grand juror.21 All authorities seem to agree, however, that a member cannot be allowed to disclose how any grand juror voted, nor as to any opinions expressed or arguments advanced by any member thereof, upon any question before them, nor to reveal the fact that an indictment for felony has been found against any person not yet apprehended.22 SECTION 67. ATTORNEYS. An attorney, at the common law, in the absence of a disqualifying interest, was a competent witness for and on behalf of his client. It is the rule in all the 19 1 Greenleaf, Sec., 252. Fed. Cases, No. 14, 858; (Mass.), 137; Rocco vs. State, 37 Miss., 357. 1 State vs. Carroll, 85 Iowa, 1; Hinshaw vs. State, 147 Ind., 334; United States vs. Kilpatrick, 16 Fla., 765. "State vs. Broughton, 29 N. C., 96. states except Delaware, that a lawyer is a competent witness on behalf of his client, statutes having removed the disqualification on the ground of interest. The practice of acting as both witness and counsel is frowned on by courts, and the more ethical practice, if a lawyer desires to testify for his client, is for him to withdraw as counsel in the case. SECTION 68. JUDGES. A judge cannot be allowed to testify in a case on trial before him, and his disqualification therein is absolute. The reasons for this rule are obvious. Imagine the awkward spectacle of a judge passing upon the competency of his own testimony, determining its materiality, if objections are interposed, overruling or sustaining motions of counsel to strike it out of the record, and deciding questions relating to the impeachment of his testimony by other witnesses. SECTION 69. PETIT JURORS. There seems to be no rule of law making a juror incompetent as a witness in a trial in which he has been empaneled. If otherwise not disqualified, it would seem that he may be sworn and examined as to all relevant facts of which he has knowledge. He cannot testify as to facts learned by him as a juror, or by observation in open court.23 SECTION 70. DEAF AND DUMB PERSONS. Persons deaf and dumb from birth were, in contemplation of the common law, presumed to be idiots. The experience of modern educators has taught that deaf mutes are possessed of more mental capacity and Scruggs vs. State, 90 Tenn., 81. are capable of higher mental culture than was formerly supposed. However, this ancient presumption of the common law still clings so far as to cast upon the party offering the witness the duty of showing that he is possessed of sufficient understanding. But if he be shown to possess sufficient mental capacity to understand and appreciate the nature and obligation of an oath, and to communicate, by means of writing, or by signs with the aid of an interpreter, in an intelligent manner, the facts concerning which he is called to testify, he is a competent witness. Some authorities assert that the written method is the better; others hold that method most satisfactory by which he can make himself best understood; while other decisions declare either method allowable. SECTION 71. EXAMINATION OF WITNESSES. The course to be pursued in the examination of witnesses is a matter resting largely within the discretion of the court. Whatever method will best elicit the truth from biased, disinterested and nonintelligent witnesses should be adopted, and the usual rule may, in the court's discretion, be so relaxed or changed as to most effectually attain the ends of justice. While the great weight of authority inclines to the belief that it cannot be demanded as a matter of right, according to a practice that has obtained for over four hundred years, upon the request of either party, courts may, in their discretion, order the exclusion from the court room of all witnesses except the parties litigant themselves. SECTION 72. DIRECT AND CROSS-EXAMINATION. Unless there is some cogent reason for departing from this rule, the usual method, after the witness has been sworn and his competency determined, is for the party offering him to interrogate him in what is called his direct examination, or examination-in-chief, as it is sometimes styled. He is then turned over to the opposing party for cross-examination. The scope of the cross-examination is usually limited to the matters brought out in his direct examination, or to matters inseparably connected therewith. On all new facts elicited on cross-examination, he may be interrogated by the party adducing him, in what is termed "redirect examination." Then he may again be questioned on all matters brought out on re-direct examination by the opposite party in what is styled "re-crossexamination." In practice, an important witness seldom leaves the stand until he has passed through several further stages of successive examination. Beyond the re-cross-examination, the alternate stages of questioning are not usually given any special name. Leading questions cannot be asked one's own witness nor questions calling for a conclusion of any witness except an expert. SECTION 73. IMPEACHMENT OF WITNESSES. It may perhaps be said there are five ways in which to impeach the testimony of a witness: (1) by disproving facts sworn to by him by the testimony of other witnesses; (2) by prior statements contradictory of his evidence; (3) by evidence of bad character or reputation; (4) by conviction of infamous crime; (5) and by bias or interest. While evidence of general bad moral character or reputation is allowed in some jurisdictions, in most of the states it is limited to the general reputation of the witness for truth and veracity, at the time he testifies, in the community in which he resides; i. e., what is generally said about him by those with whom he dwells, or with whom he usually associates. Where it is sought to impeach the witness on the ground of conviction of an infamous crime, in criminal cases, it is usually held that the record of the conviction is the only admissible evidence thereof, while, in civil cases, some courts have held that such fact might be proved by the testimony of any competent witness having knowledge thereof. It would also seem allowable to ask the witness if he has been in prison, without producing the whole record. It is also a cardinal rule of the law of evidence that the testimony of a witness cannot be impeached by disproving facts immaterial to the issue, nor on collateral and immaterial matters brought out on cross-examination. SECTION 74. RIGHTS AND PRIVILEGES OF WITNESSES. A witness who is not a party to a suit or proceeding, and who has no interest in the result, is not entitled to the services of counsel, but courts have frequently indulged witnesses in this respect. During the necessary time spent in attendance at the trial of a case, and time necessarily spent in going and returning from the place of holding trial, a witness is privileged from arrest. In civil cases, a witness may demand payment of the legal witness fees in advance; i. e., he may demand mileage and one day's attendance fee, and may refuse to attend court unless the same is then paid. In criminal cases, when served in due form by subpoena, he must attend or subject himself to punishment for contempt of court for such refusal. |