MB. RUSSELL GURNEY ON THE EXAMINATION OF PRISONERS.
-"VIR. ASHLEY did a public service on Wednesday, in moving the second reading of his Bill for allowing accused per- sons and their wives to tender evidence in criminal cases.
There was no chance, of course, of such a Bill passing at this period of the Session, but the discussion induced the Recorder of London, Mr. Russell Gurney, to make a speech which will exercise a most powerful influence over public opinion on the subject. 'Mr. Gurney is a trained lawyer, an experienced Judge, and a man of inherently Conservative predilections, yet he spoke with hearty approval of a change which many lawyers of his standing regard as absolutely revolutionary. He de- clared that the present refusal to allow a man or his wife to testify when either is under trial was in many cases a positive impediment to justice, quoted cases within his own experience in which the evidence of a mistress—who can give evidence, though a wife cannot—had prevented unjust verdicts, in One instance for, and in another against, the witness's companion ; and showed conclusively that American Judges, at first strongly prejudiced against the innovation, had become con- vinced of its utility. In New York, in particular, where the entire Bench and Bar were opposed to the new system, Judges and Counsel were now alike unanimous in its favour, while the Chief Justice of Maine told him he considered the new practice "absolutely indispensable to the due administration of the law." The speech will be remembered next year, as furnishing a mine of arguments for the reformers, and has probably advanced the reform by more than one Parliament.
It is difficult, indeed, to believe that the change, as far as regards the right of the accused to testify, can be delayed for more than one Session, for all the weight of argument is in its favour. Prinni facie, of course, the accused has a positive right to be heard, a right based on admitted principles of justice. He alone knows all the facts. He alone can explain all that seems suspicious. He alone, in many eases, can give the clue which may lead the jury to discern the precise blunder which has misled witnesses who intended to be truthful. Above all, he alone can, if he pleases, give complete and satis- factory testimony as to the motive, often somewhat hastily or erroneously alleged. To shut his mouth is deliberately to refuse the best evidence procurable in the case. This is ad- mitted even by those who resist the change, but they assert that the best evidence is wisely refused, because if it is admitted, certain evils more injurious to society than an occasional absence of evidence will immediately follow. When requested,however, to define these evils, they invariably reduce them down to two,— that perjury in Courts of Justice will be increased, and that innocent but nervous prisoners will have less chance of an acquittal. Defendants, as Sir John Holker assumed through- out his speech, will perjure themselves, and we ought not to encourage them to do that. That argument has, no doubt, a basis of truth in it, though it comes oddly from a man who every day compels some guilty prisoner to perjure himself by pleading "Not guilty," but does it not go just a little too far If it is so wrong to risk the chance of perjury being committed in Court, is it not very wrong to examine witnesses at all? Any witness can commit perjury, yet we not only examine him, but Allow lawyers specially trained for that work to browbeat him till it is difficult for the most truthful man to avoid com- mitting the offence. What is there in the special position of an accused man which should make perjury in him a more dangerous or more heinous offence than in anybody else? He may be more likely to commit it, it is true, but the jury is indefinitely more likely to suspect him, and so to give his words exactly their proper weight. They are not bound to believe him, and are extremely unlikely to do it, unless his evidence is corroborated by independent testimony. As a matter of fact, accused persons, if innocent, would have every inducement not to commit perjury ; while, if guilty, they would usually only partially perjure themselves, relating facts the bearing of which they did not see, as truly as anybody else.
As to the second argument, that a defendant who did not step into the box would excite prejudice against himself, it may be true, but why should that be injurious to justice As a rule, s man who kept out of the box would keep out because he feared cross-examination, and that ought pro tanto to prejudice the jury. It does so already every day. Cases occur by the dozen, in suits nominally civil, but involving character, in which a defendant does not appear, his own side being reluct- ant to call him lest he should admit too much, and the other side being unwilling, because it is "forbidden to discredit your own wit- ness." Such abstinence always increases a jury's prejudice, and it would do no more harm in a criminal than in a civil case. Of course there are cases in which men would abstain from enter- ing the witness-box out of sheer nervousness, but .then they must accept the misfortune of their temperaments in that, as they do in every other situation of life. The only accused persons who would be really injured would be the few men with a religious objection to taking any oaths, but the law already bears with severity on them.
The argument for exempting husbands and wives from giving evidence for or against one another rests upon a some- what different basis. It is supposed that if either gave hostile evidence, family life would be destroyed, and if evidence were compulsory, there might be some truth in that ; but Mr. Russell Gurney does not propose to make testimony com- pulsory. He only asks that it should be permissible, and the wife, therefore, or husband, would only be hostile when he or she intended to be hostile, and family life had previously disappeared. On the other hand, the wife's evidence is often of the highest value to the ends of justice. As Mr. Russell Gurney pointed out, the wife is often the only witness who can testify to the husband's whereabouts at night, while the husband is often the most valuable witness in cases of alleged child- murder. The German pastor, Hessel, whose case created so much interest three years ago, was very near being hanged because his wife could not appear in the witness-box ; while Rush, the Suffolk murderer, never could have been convicted, but that he had broken his promise of marriage to Emily Sandford, the girl who lived with him as his wife, and who therefore was compelled to give the evidence which hanged him. As to the natural predisposition of the wife to perjure herself for her husband, that is a danger which exists, but of Which we take account in that case alone, overriding, in the interest of justice, every other kind of natural affection, and compelling brothers, or fathers, or even mothers, to give evidence when their sisters or their children stand in mortal peril. Why should we make a distinction in favour of one only of all the close relations of life ?
There was one argument employed by the Attorney- General in resisting the Bill of the most curious kind :— "Although the Bill was plausible in its object of allowing a prisoner to give evidence, its effect would be to compel him to do so ; and if. he did, what would happen ? They would have an ignorant, careless, inexperienced man on one side, and pitted against him an astute, trained advocate, conducting the prosecution. Would they like to see any such prisoner, however desirous he might be of telling the truth, subjected to an ordeal in which he might be cross-examined as to every event of his life,—as to some things which he might not be desirous of disclosing at all, some which he would hesitate to speak to, because they would reflect upon a third person, some as to which he might give an evasive answer, and all which circumstances could not fail to weigh against him with the
jury ?" That is very well put, but surely it is an argu- ment, not against examining a prisoner, but against
the English system of examining a witness. In Eng- land, any witness, however honest or however truth- ful, is at the present moment subjected to all the per- secution which Sir J. Holker so feelingly deplores. It is, we believe, necessary that he should be so subjected, the only practicable alternative, the Bavarian system of incessant in- terrogatories of the prisoner, being, on the whole, more oppressive and unjust ; but why should the prisoner, who in England, at all events, is probably guilty, be exempted from the moral torture which the witness, who is certainly innocent, is, for the benefit of society, doomed to suffer? Sir John Holker is very careful for prisoners—and is quite right in being careful—but suppose he extends some of his benevolence to witnesses, and helps to secure arrangements under which they shall be treated as the friends, and not the enemies, of justice, shall only be browbeaten when they are dis- trusted, and shall have as decent accommodation in Court as third-class passengers in a railway waiting-room. Infinitely more would be gained for the cause of good government by that innovation, than has ever yet been obtained by closing the mouths - of important witnesses when they are willing and anxious to be heard.
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