Report No. 69
Impeaching the Credit
Sections 146 and 147
82.1. In cross-examination, the cross-examiner enjoys a wider power of interrogation than in examination-in-chief. This wider power covers not only the form of the questions, but also the substance. As to form of the questions, we have already dealt with leading questions. Apart from the fact that leading questions can be put in cross-examination,1 what is to be noted is that the subject-matter of the question could be somewhat larger when a witness is cross-examined than when he is examined-in-chief.
Not only can the witness be contradicted by his previous statements2 which are inconsistent with his present evidence, but also the inquiry can travel beyond facts which are strictly relevant, in so far as credit of the witness can be impeached. Some questions are, therefore, lawful in cross-examination which are not so in examination-in-chief; the questions must relate to matters relevant to the facts in issue in the proceeding. The range of such cross-examination is dealt with in the sections beginning with section 146.
1. Sections 141 to 143.
2. Section 145.
82.2. Section 146-gist.-
Section 146 provides that where a witness is cross-examined, he may, in addition to the questions "hereinbefore referred to"1, be asked any questions which tend-
(1) to test his veracity,
(2) to discover who he is and what is his position in life, or
(3) to shake his credit, by injuring his character, although the answer to such questions might tend directly or indirectly to criminate him, or might expose or tend directly or indirectly to expose him to a penalty or forfeiture.
1. Section 138.
Certain matters of importance, namely, in what cases the witness is compellable to answer such questions, are dealt with in latter sections-sections 147, 148, 149 and 150. Indecent and scandalous questions and insulting questions are specifically governed by sections 151 and 152. Of course, the last two sections-section 151 and section 152-are not confined to cross-examination, but, in practice, the need for invoking them arises mostly in relation to cross-examination.
The textual provisions and the decisions show that the range of questions which can be put for shaking the credit of a witness is wide enough. This renders it desirable that the witness should be protected against improper cross-examination. Certain safe-guards are, therefore, provided in sections 146 to 151 as already stated. How far answers to questions put to impeach the credit of a witness can be contradicted is dealt with in section 153. This is, in brief, the scheme of the sections.
82.4. Section 146(1).-
Of the questions that can be put under section 146, the first category comprises questions intended to test veracity.
82.5. The expression "veracity" is a narrow one. We have already referred to1 the diverse factors which enable the court to make an intelligent estimate of the value of the testimony of the witness. These go beyond mere contradiction or impeachment of credit or veracity. It is important to note2 that a witness may believe himself to be true, and yet be mistaken. "The means of detecting both the fact and the source of error because of mistake involve a different type of resourcefulness in truth testing than the direct attack upon perjury."3
1. See discussion as to section 145, supra.
2. See discussion as to section 145, supra.
3. Mason Ladd Impeachment of Witness, (1966-67) 52 Cornell LQ 239 (243).
82.6. Our system of evidence requires that evidence of a fact which has been perceived by the senses must be given by a witness who has actually perceived the fact-a principle described by Wigmore as the principle of knowledge. This rule involves at least three requirements, namely,-capacity to observe, opportunity to observe, and actual observation. Questions which are put in cross-examination to test the existence and quality of these requirements are, therefore, admissible, since they go to the root of the matter, namely, whether the external reality comes through a medium which can be trusted.
82.7. A distinguished writer on the Law of Evidence1 has pointed out that human testimony cannot be assigned its proper value without a knowledge of the powers of perception, memory and narration of the witness, and of his opportunity and desire to exercise those powers honestly and efficiently in the situation under examination. "It requires no extended trial experience to demonstrate that for every perjurer there are scores of honest witnesses whose direct examination produced the effect of falsehood because its subject-matter was incorrectly or incompletely observed or inaccurately remembered or inadequately narrated. It might, then, be argued that in a judicial investigation no testimony should be received which is not tested in the fire of cross-examination."
1. Morgan The Relation between Hearsay and Preserved Memory, (1927) 40 Harvard Law Review 712.
82.8. Cross-examination on opportunities for knowledge.-
Cross-examination on relevant matters affecting human behaviour and opportunities for knowledge constitutes the most reliable means of exposing error, apart from falsehood.1 Even an honest and accurate witness may, for example, be compelled to tell a lie by reason of threat or duress or other attempts to tamper with the witness. Then, unconsciously, a bias may arise by reason of the relationship between the witness and the party. Many of the factors which, at common law, were regarded as grounds for total incompetence of the witness are now factors which can be taken into consideration as relevant to weight or value of the evidence of the witness. For example, interested witnesses were previously incompetent-particularly, the parties.
Under the present law, they are competent; but, the nature and quality of their interest may legitimately be enquired into in cross-examination on the ground of bias or possibility of bias. This is not to say that in every case where a witness is related to a party, there is a possibility of bias and the witness must be taken as biased. To take a hypothetical example2 if, in a suit for damages for injury caused by an accident, a witness to an accident, married the defendant's daughter before the trial, his previous consistent declaration about what he had seen, which was made before he met the daughter, would be admissible to dispel any presumption that the testimony given in the court was distorted, provided, of course, that the statutory conditions for the use of corroborative statements are satisfied.3
1. Alford v. United States, (1931) 288 US 687 (691).
2. Mason Ladd Impeachment of Witnesses, (1966-67) 52 Cornell LQ 239, 255.
3. Section 157.
82.9. Cases in which the capacity of a witness to observe the fact as to which he is called to give evidence is in question will be rare. Such incapacity to observe may exist as a result of some organic incapacity of the witness such as insanity, feeble-mindedness, infancy, blindness and deafness. In extreme cases organic incapacity of this kind will be obvious.1 In less extreme cases for example, where the witness has poor eyesight or poor hearing, the existence of such facts, if relevant, should be elicited by the cross examiner.
There is no doubt that such questions are properly admissible, but as Wigmore observes, mere questions on cross-examination as to those matters can seldom affect much and the useful approach is usually something of a mixed nature, that is, experiments made in Court to test the witness's powers which, according to Wigmore, should be freely allowed, subject to the2 discretion of the Court. He also expresses the view that extrinsic evidence of particular instances of .the incapacity of the particular witness to observe would not be admissible.3
1. Wigmore, para. 931.
2. Wigmore, para. 945.
3. Wigmore, para. 995.
82.10. Psychology testimony.-
In the United States academic writings deal in detail with the psychology of testimony and it has often been pointed out that even where the witness is not wilfully telling a lie, it is important to determinate his ability to tell the objective truth "to translate an outward event into words" for the use of the court. In England also, one common species of mistake is recognized, namely an event being "remembered" as belonging to a different occasion from the one on which actually happened. This is described as the error of "transference", and commonly occurs where the customary is the departure from the usual practice goes unnoticed.1 It is desirable that defects of the nature described above should be remedied.
1. See William Proof of Guilt, (1960), p. 84.
82.11. Ceylon Amendment.-
It is of interest to note that in Sri Lanka,1the corresponding section also uses the expressions "accuracy" and "credibility". This seems to be a useful improvement inasmuch as, apart from any moral aspersions which are covered by "veracity" and "credit"-whichever the expressions used in clauses (1) and (3) of section 146-there could be cases where the cross-examiner wishes to challenge the accuracy or power of observation or memory of the witness.
1. Section 146, Ceylon Evidence Ordinance, see Sarkar.
Whitley Stockes1says that the word "veracity" means accuracy or credibility. But this is not the ordinary sense in which the word is understood. In the ordinary parlance, "veracity" does carry certain moral overtones and is not appropriate enough to cover cases where there is no moral aspersion involved. Most of the dictionary meanings also give a primacy of place to the restricted meaning.
1. Whitley Stokes, p. 927.
in so far as the witness can be contradicted by previous inconsistent statements intended to challenge the credibility of the witness, section 145 takes care of the matter. But it is not inconceivable that the mental capacity of the witness is believed to be defective and is proposed to be challenged otherwise than by the use of a previous inconsistent statement. There should be same provision on the subject. We recommend that section 146(1) should be suitably widened for the purpose.
82.14. Sections 146(2) and 146(3).-
So much as regards clause (1) of section 146. Section 146(2) needs no comments, but section 146(3) is of practical importance. It really consists of two propositions.
(a) The cross-examiner can put questions intended to shake the credit of the witness, and this he can do by injuring his character.
(b) For this purpose, he can even put incriminating questions.
The first proposition relates to the range of the cross-examination in general terms. The cross-examiner can shake the "credit" of the witness-i.e. the credit in the eyes of the court in relation to the evidence given in the particular proceeding. Of course, as is commonplace, an injury to credit, inflicted on one occasion, could be of an enduring nature. It could last long beyond the duration of the particular occasion. Walter Scott1 said that "credit is like a looking-glass, which, when once sullied by a breadth, may be wiped clear again; but if once cracked, can never be repaired."
As to the second proposition, it is to be noted that the word "character" does not, in this clause:" mean only disposition. Rather, it seems to mean "reputation' ,2 which is distinct from disposition. A man's character is the reality of himself. His reputation is the opinion others have formed of him. Character is in him; reputation is from other people; that is the substance, this is the shadow".3 In the section, the word 'character' is used in an extended sense. Of course, these observations do not necessitate an amendment of the section.
1. Walter Scott Co., Saying quoted in the 'D'.
2. Compare section 55.
3. N.W. Beecher Life Thoughts.
82.15. Recommendation to amend section 146(1).-
The only change required is in clause (1) of the section. As a result of the points already discussed, we recommend that in clause (1) of section 146, the words "accuracy or credibility" should be added after the word 'veracity'.
82.16. Amendment of section 147, regarding the words "relevant to the suit".-
With reference to section 147, only a verbal point needs to be mentioned. The words "relevant to the suit or proceeding" in this section refer to what is relevant to a matter in issue, as in section 132.1 It would be desirable to make this clear, since the next section-section 148-makes a distinction between questions (strictly) relevant to the matter in issue and questions which are "relevant to the suit or proceeding" only because they affect the credit of the witness by injuring the character of the witness. We, therefore, recommend that in section 147, after the words "relevant to", the words "the matter in issue in" should be added.