19. On the art of examining a Witness on the Stand,
see John C. Reed’s “The Conduct of Lawsuits.”
LITIGATING THE CONTROVERSY
reluctance of the Witness removes much of the danger of suggestion from Leading Questions. It is proper for the Court or Jurors to put additional questions to elicit the facts upon which they desire fuller knowledge.
(C) The Cross-Ex.amination.—Each Witness is not only subject to Direct Examination by the side which produced him; he is also subject to Cross-Examination by the opposite party, for the purpose of extracting his whole knowledge and to test its credit and significance before he leaves the stand. According to Dean Wigmore, a most distinguished authority in Evidence, “the belief that no safeguard for testing the value of human statements is comparable to that furnished by cross-examination, and the conviction that no statement(unless by special exception) should be used as testimony until it has been probed and sublimated by that test, has found increasing strength in lengthening experience. Not even the abuses, the mishandlings, and the puerilities which are so often found associated with Cross-Examination have availed to nullify its value. It may be that in more than one sense it takes the place in our system which torture occupied in the mediaeval system of the civilians. Nevertheless, it is beyond any doubt the greatest legal engine ever invented for the discovery of truth.” 20
(D) The Advantages and Danger of CrossExamination.-.—Cross-Examination is effective, because it exposes falsehood and inaccuracies, and beats out the truth, by disclosing the ability and willingness of the Witness to declare the truth, his opportunity to ascertain the facts, his powers of observation and memory, his situation and motives, and by fixing the Witness as to all the minute details of time and place. It is very difficult to make a fabricated story agree with all the circumstances. Truth alone will match all arOund.
But Cross-Examination often is a two-edged
sword, for it may extract the most unfavorable and damaging facts, confirming the opponent’s case, demonstrating the Witness’ credibility, or supplying fatal gaps which the opponent had left in his Proof.
Methods of Withdrawing the Ca~se from the Jury
AT Common Law, in the course of a Trial by Jury, the respective functions of the Judge and Jury were apportioned, the General Rule being that the Court decided the Law and the Jury the Facts, although this is not invariably true. From this practice, it follows logically that where the plaintiff failed to produce legally relevant evidence at the Trial, the matter might be withdrawn from the Jury. And the classic Common-Law procedural device for securing this end was the Demurrer to the Evidence.
(I) The Demurrer to the Evidence:”
(A) In GeneraL—A Demurrer to the Evidence is analogous to a Demurrer in Pleading, and it operates to withdraw a case from the Jury. It questions the sufficiency of the Evidence in Point of Law, and calls for the opinion of the Court upon the legal effect of the facts shown in evidence. And, for this purpose, it admits all the facts presented in the
21. In general, ou the Origin, flistocy and Devcdopmeat of tile Demurrer to the Evidence, see:
Treatises: Mansel, A Treatise on the Law and Prac’ tice of Demurrer to Pleadings and Evidence (Philadelphia & New York 1839); Thayer, A PreJiminary Treatise on Evidence at the Common Law, c. V, Law and Fact jn Jury Trials (Boston 1898); Scott, Fundamentals of Procedure in Actions at Law, c. III, Trial by Jury, § 3, Demurrer to the Evidence, 94 (New York 1922); MilIar, Civil Procedure of the Trial Court in flistorical Perspective, e. XIX, Trial by Jury, 2, Withdrawing the Case from the Jury, 297—303 (New ‘York 1952).
Article: Carlin, Anomalous Features of Den,urrers to the Evidence in West Virginia, 27 W.Va,L.Q. 286 (1927).
CommeNt: Effect of Demurring to the Evidence on Matters Relating Merely to the Quu,ttu,,’ of I1& covery, C Va.L.ltev. 276 (1919).
20. 5 Wigmore, Bvidence, § 1307 (3d ed. Boston 1940)-
TRIAL BY COURT OR BY JURY
evidence or which it conduces to prove.22 If the plaintiff’s evidence does not make a prima facie case, the defendant may Demur. But if he wishes to contradict it, he must resort to the Jury.
This step is taken only in cases in which it is Very clear that the evidence has no tendency to prove the case; and naturally it is not often resorted to, for it is generally unsafe for a party to rest his case solely upon the test of what the evidence tends to prove—a matter often difficult to determine. The Party Demurring must obviously be the one holding the Negative of the Issue, as the result of the case must, as a General Rule, be in his favor, unless the Affirmative is proved against him. The effect of the proceeding is to determine the question whether the plaintiff’s evidence shows a prima facie case or right of action.’3
The Demurrer to the Evidence withdraws from the Jury the Application of the Law to the Facts, as in the case of a Special Verdict. On a Demurrer to the Evidence or Motion for Nonsuit, no Objection can be made to the Pleadings.’4
(B) In the Several St at es.—In many States, the practice of Demurring to the Evi
22. English: Gibson v. Hunter, 2 BIB. 187, 126 Eng. Rep. 499 (1793); Illinois: Rockhill v. Congress Hotel Co., 237 Ill. 08, 56 N.E. 740 (1908); Massachusetts: Copeland v. New England Ins. Co., 22 PIck. (Mass.) 135 (1839); Federal: Slocuin v. New York Life Ins, Co., 228 U.S. 36-1, 33 S.Ct. 523, 57 LEt]. 879 (1014); Fowle v. Alexandria, 11 Wheat. (U.S.)
320, 6 LEd. 484 (1826).
23. A Demurrer to plaintiff’s Evidence raises a Question of Law whether the Evidence in favor of the plaintiff, if considered to Fe true, together with the inferences which may fairly be drawn therefrom, tends to support the Cause of Action of the plain. tiff. Libby. MeNeill & Libby v. Cook, 222 Ill. 206, 78 N.E. 599 (1006); Brophy v. Illinois Steel Co., 242 III. 55, 80 N.E. 684 (1000); Kee & Chapell Dairy Co. v. Pennsylvania Co., 201 Ill. 248, 126 N.E. 179 (1920).
24. English: Lumby v. AIlday, 1 Cr. & J. 301, 148
Eng.Rep. 1434 (11831); Georgia: Kelly V. Strouse &
Bros., 110 Ca. 872, 43 SE. 280 (1909); Federal:
Bank of United States v. Smith, 11 Wheat. (U.S.)
171, 6 LEd. 443 (1826).
dence has become obsolete.” It is superseded by a Motion for a Nonsuit or by a Motion to Direct a Verdict for the Defendant.’°
On the Federal level the Supreme Court of the United States, in 1808 in the case of Pawling v. United States,2’ originally approved the rule as to admissions by Demurrer applied in the English case of Cocksedge v. Fans.haw,25 to the effect that “by the Demurrer, the defendant admits every fact which the Jury could have found upon the evidence.” 29 But some five years later, in 1813, in the case of Young v. Black,30 the Supreme Court, speaking through Mr. Justice Story shifted to the rule as enunciated in Gibson v. Hunter.3’ In that case, decided in 1793, the Court held that where the testimony was oral and loose and indeterminate, or circumstantial, the plaintiff was not required to join in the Demurrer except where there was a specific admission in the Demurrer of every fact which the evidence conduced to prove. Thereafter, unless the plaintiff voluntarily joined in the Demurrer, the issue as to whether the Jury could have found the facts was no longer the subject of the inquiry; if the evidence at all conduced to prove the facts, those facts had to be admitted on the Record. This ruling was, in the words of Professor Thayer,3’ a
25. Colegrove v. New York & New Haven It. It.
Company, 20 N.Y. 492 (1859).
26. New York: Ltmer v. Meeker, 25 N.Y. 361 (1862);
Pennsylvania: Finch v. Conrade’s Ear, 154 Pa.
326, 26 A. 368 (1893); Tennessee: Hopkins v. Nashville, C. & St. L. It. H., 96 Tenn. 400, 34 SW. 1029
(1896); Federal: Central Transp. Co. v. Pullmans
Palace Car Co., 130 U.S. 24, 11 S.Ct. 478, 35 LEd.
27. 8 U.S. 219 (1808).
28. 1 Doug. 119, 99 Eng.Rep. 80 (1779).
CII. Cocksedge v. Fanshaw, 1 Doug. 119, 132, 90 Eng. Rep. 80, 88 (1779).
30. ii U.S. 505 (1813).
31. 2 Bl.H. 187, 207—209, 126 Eng.Rep. 499, 569—510 (1793).
32. Thayer, Preliminary Treatise on Evidence at the
Common Law, 235 (Boston, 1898).
LITIGATING THE CONTROVERSY
“death blow” to the Demurrer to Evidence in England. In consequence of this division of view as to the Demurrer to the Evidence in the United States Supreme Court, some States followed the more liberal rule of the Cocksedge Case, while others followed the stricter rule of the Gibson Case. Virginia developed an unorthodox view which included deferring the Demurrer until both Parties had completed their evidence.33 This practice was adopted in West Virginia,34 where it was further distorted by allowing the Court, in certain situations, to determine the sufficiency of the Demurrer on the preponderance of the evidence.35 As thus modified, in Virginia and West Virginia, the Demurrer to the Evidence still flourished. In England, the place of its origin, by way of contrast, it has long since fallen into disuse.
(II) Nonsujt.36—Another method of withdrawing a case from the consideration of a
33. Patteson v. Ford, 43 Va. 18, 28 (1845).
34. Muhleman V. Nat. Insurance Co., 6 W.Va. 508 (1873).
35. See article by Carlin, Anomalous Features of Demurrers to the Evidence in \Vest Virginia, 27 W.Va. L.Q. 236, 245 (1921).
36. In general, on the Origin and Development of the Nonsuit, see:
Treatises: Scott, Fundamentals of Procedure in ActIons at Law, c. III, Trial by Jury, 7, Compulsory Nonsuit, 100 (New York 1922) Millar, Civil Procedure of the Trial Court In Historical Perspective, c. XIX, Trial by Jury, § 2, Withdrawing the Case from the Jury, 303—305 (New York 1952).
Articles: Demarest, Non-Suits, New and Old, 65 Albany Li 363 (1903); Head, The History and Development of Nonsuit, 27 W.Va.L.Q. 20 (1920); Heitz, Voluntary and Involuntary Nonsuits in Missouri, 5 Mo.L.Rev. 131 (1940).
Comments: Practice and Procedure—Voluntary Non-
suit—Treatment Under Michigan Court Rules, 40
Mich.L.Rev. 010 (1942); The Itight of a Plaintiff to
Take a Voluntary Nonsuit or to Dismiss his Action
Without Prejudice, 37 Va.L.Bev. 969 (1951).
Annotation: Right of Plaintiff to Take a Nonsuit
When the Defendant has Interposed a Counterclaim
Entitling Him to Affirmative Relief, Where Right to
Such Dismissal is Not Defined or Denied by Statute,
15 L.ILA.(N.S.) 341 (1008),
Jury was by use of the procedural device known as a Nonsuit. At Common Law, a Nonsuit was not granted without the plaintiff’s consent, and the Court had no power to order a Nonsuit where the plaintiff insisted on a submission of a case to the Jury. But now, in many Jurisdictions, a Court may grant a Motion for a Nonsuit where the plaintiff’s evidence fails to make out a p;’inic: facic case.
Broadly speaking, a Nonsuit is a Judgment given against the plaintiff when he is unable to prove his case, or when he neglects or refuses to proceed to Trial. And Nonsuits are of two descriptions: 1. The Vountary Non-suit, which is an abandonment of his cause by the plaintiff either before the Trial is commenced, or during the presentation of his case; and 2. The Involuntary Nonsuit, which is a Judgment ordered by the Court where the plaintiff fails to appear, or where he has given no evidence on which a Verdict in his favor can be rendered.
(~) The Directed Verdict.37—By far the most important method of withdrawing a
St In geiteral, on the History and Development of the Directed Verdict, see:
Treatises: Scott, Fundamentals of Procedure in Actions at Law, c. III, Trial by Jury, § 6, Direction of Verdict, 98 (New York, 1922); Millar, Civil Procedure of the Trial Court In Historical Perspective, C. XIX, Trial by Jury, 2, Withdrawing the Case Prom the Jury, 305—309 (New York 1052).
Articles: Hackett, Has a Trial Judge of a United States Court the Right to Direct a Verdict, 24 Yale L.J. 127 (1914); Sunderland, Directiag a Verdict for the Party Having the Burden of Proof, 11 Mich. L.Rev. 198 (1913); Smith, The Power of the Judge to Direct a Verdict: Section 457a of the New York Civil Practice Act, 24 Col.L.Rev. 111 (1924); Smith, Some Problems in Connection with Motions During the Trial of a Civil Action Before a Jury, 25 Col.L.Rev. 752 (1925); Blume, Origin and Development of the Directed Verdict, 48 Mich.L.Eev. 555 (1950).
Comments: Criminal Procedure—Variance, 03 U.Pa. LRev. 804 (1915); The Right of a Jury in a Criminal Case to Render a Verdict Against the Law and the Evidence, 19 Mich.L.Bev. 325 (1920); Practice— Directed Verdicts in Criminal Cases—Judge and
TRIAL BY COURT OR BY JURY
case from the Jury isthe Directed Verdict, which is, in effect, the Modern Substitute for the Old Demurrer to the Evidence. The reason for this situation was that the Demurrer to the Evidence was highly technical and difficult to draft, as it was required to contain a full written statement of all the facts shown in evidence by the opposition Party, together with every reasonable inference favorable to the Party who presented the evidence.36 Moreover, the use of the Demurrer was “an absolute, final and irrevocable withdrawal of the case from the Jury, which resulted necessarily in a Final Judgment on the merits for one party or the other.” ~ In consequence, one who had a meritorious Defense was reluctant to risk his whole case on one fling—the Demurrer to the Evidence.
The substituted motion for a Directed Verdict avoided the defects above set forth. Presented orally at the Trial, and grounded on the evidence as preserved by the Court
Stenographer and in the memory of the Judge, such Motion, if sustained, results in a Verdict being directed by the Court, upon which is entered a Judgment on the merits; if overruled, the moving Party may still go on with the Trial, and seek a Vcrdict from the Jury.4°
The Charge of the Court
(I) Instructions—Charging the J-ury— The Jury, in finding a General Verdict for Plaintiff or Defendant, must necessarily apply the Law to the Facts found; e.g., to decide whether or not they show a legal liability. Accordingly, after the Arguments, the Judge Orally Charges the Jury, and Jays down the Rules of Law which they are to apply to the Facts proved in rendering their Verdict for one or the other Party. The Judge will ordinarily state the Nature of the Action and Defense, the Points in Issue, what the plaintiff must prove to recover, and what rules will apply to the different states of fact which may possibly be established in the Opinion of the Jury.
(II) Restrictions on the Charge.—At Common Law the Judge was under slight restraint in guiding the Jury. He could sum up the evidence, observing where the main issue lay, stating what evidence had been given to support it, and giving them his opinion on the credibility of the Witnesses and the weight and effect of the evidence—e.g., that the defendant’s case was a very “thin” one; but under our practice in the United States such comment, even if correct, would be regarded as an invasion of the Province of the Jury, and as such Reversible Error. The Judge cannot single out and disparage a Particular Witness, or express his belief or disbelief of certain testimony, or even make a comparison between direct and circumstan
40. Eberstadt v. State, 92 Tex. 94, 45 S.W. 1007 (189s)~ As to the relation of the Burden of Proof and the
Directed Verdict, see article by Sunderland, Directing a Verdict for the Party Having the Burden otT Proof, 11 Mieh.LRev. 198 (1912).
Jury—Instructions as to Law in Effect Directing a Verdict, 30 Yale L.J. 421 (1921); Directed Verdict Under the New York Civil Practice Act, 22 CoIL. Rev. 250 (1922); The Effect of Motions by Both Parties for Directed Verdicts on the Right to a Jury Trial, 22 Col.L.Rev, 358 (1022); Practice— Motion by Both Sides to Direct the Verdict, I~ ru. LRev, 474 (1925); Practice: Motion by Both Sides to Direct the Verdict: Waiver of Jury Trial, II Corn.L.Q. 400 (1926); Trial Practice—Effect of Each Party Moving for a Directed Verdict, 27 Mich. L.Rev. 719 (1929); Practice and Procedure—Reservation of Decision on Motion for Directed Verdict as a Means of Avoiding Unnecessary New Trials, 34 Mich.L.Rev. 93 (1935); Practice and Procedure— Dismissal and Directed verdict in Minnesota, 23 Minri.L.Rev. 363 (1939); Federal Courts—Directed Verdicts in Civil Actions, 47 Mich.L.Ee-c-. 974 (1949).
Annotations: Direction of Verdict on Opening Statement of Counsel, 83 ALIt, 221 (1933); Id., 129 AL.
R. 557 (1940); Request by Both Sides for Directed
Verdict as Waiver of Sobinissioo to Jury, IS A.LIt.
1433 (1922); Id., 69 A.L.R. 633 (1930); Id., 108 A.L.
R. 1315 (1936); Cross Motions for Directed Verdicts,
11 U. of Cinn.L.Rev. 72 (1937).
~t Sundorland, Directing a verdict for the Party Having the Burden of Proof, 11 Mieh.L.flev. 198 (1912).
LITIGATING THE CONTROVERSY
tial evidence. It is almost universally provided that Judges may not Charge Juries with respect to Matters of Fact, but may sum up the testimony and Declare the Law. The Judge is not to state abstract principles of Law, but should state the Law concretely as applied to different conceivable theories of thc case, and instruct the Jury to find for the plaintiff or defendant according to one hypothesis or another. He may lay down the Rules by which the credibility of the Witnesses in general is to be judged, and where there is no Evidence or where a fact is admitted he may so state; but he cannot indicate his opinion as to what the Evidence proves, and the Jury is thus deprived of the benefit of his training and exuerience.
(III) Requests to Charge—It is the duty of the Judge to Instruct the Jury, upon proper request, as to the correct decision, assuming any reasonable hypothesis in relation to the Facts in Evidence, and it is error for the Court to refuse any instruction which correctly Declares the Law, framed on a theory pertinent to the case. These requests may be presented to the Judge before or during Argument, but should be made in such time as will give the Judge opportunity to examine and pass upon them without delaying the Trial. There seems to bc no limitation on the number or length of the instructions which may be requested. Very few Lawyers are competent to write an elaborate Set of Instructions without committing errors which might conceivably mislead the Jury, and in the hurry of a Trial the ablest Judge may mistake the Law and misdirect the Jury; yet a Verdict for the plaintiff, obtained upon erroneous instructions, is practically worthless. This is one of the most serious abuses con. nected with Jury Trials. Exceptions for errors in giving, refusing, or modifying instructions should be taken before the retirement of the Jury, and should specifically point out the ones objected to. In some States excep
tions may be entered at any time before Entry of Final Judgment.
The Deliberations of the Jury
THE Jury, after the Charge, unless the case be very clear, withdraws from the Ear to deliberate upon their Verdict. After the case was finally submitted to them, they could not separate, but were kept in charge of a Bailiff or Officer of the Court, duly sworn to attend them, but this is not always the case in Modern Practice. Ry the old English Practice they were to be kept without meat, drink, fire, or candle, unless by permission of the Judge, till they were unanimously agreed, a method of accelerating unanimity which is now given up. Formerly, if they did not agree in their Verdict before the Judges left town, they might be carried around the Circuit from town to town in a cart. Now, if it appears to the Court that they cannot agree, they are Discharged, and the case must be retried. The Court is not permitted to coerce the Jury into finding a Verdict, and should refrain from anything savoring of a threat as to how long the Jury will be kcpt together unless a Verdict is rendered.4’
(I) The General Verdict—Its Form and Tenor.—The Verdict, regardless of its character, must be responsive to the Issue submitted for Trial. At the Pleading Stage, in connection with the Development of the Common-Law Forms of Action, two inflexible rules of pleading grew up, one, that the Charge in the Declaration must correspond with the Charge in the Original Writ; two, that the Charge proved at the Trial must correspond with the Charge in the Declaration. It follows, therefore, that the Rule that the Issue found by the Verdict must cor41, Alabama: DeJarnette v. Cox, 128 Ala. 518, 29 S.
618 (1900); Massachusetts: Highland Foundry Co.
v. N. Y., lV H, & 11. II. Co 109 Mass. 403, 85 NE.
437 (1905); Virg tin: liii itt ii v. City of Daiivillc,
93 Va. 200, 24 sE. 830 (1896).
TRIAL BY COURT OR BY JURY
respond with the Issue submitted for Trial, is merely a continuation, at the Trial Stage, of the effort of the Common-Law Courts to maintain unity in their procedure. And, of course, the Judgment must correspond with the Issue as found by the Verdict. By these devices the procedure at Common Law, both in the Pleading and Trial Stages, was able to secure what, in English Composition, in relation to writing a paragraph, we refer to as unity and coherence.
The General Verdict is in general terms, that is, merely “for the plaintiff” or “for the defendant.” If it is returned for the plaintiff, it contains a Finding as to the Amount of Damages to which the Jury thinks him entitled, where Damages are claimed in the action.
At Common Law, the Rule of Unanimity, made it essential that the Jurors must be in complete agreement as to the Verdict. After the Verdict was rendered, it was Entered on the back of the Nisi Prius Record) and was called the Postea (afterwards), from the name in Latin with which the recital began.
(II) The Special Verdict—Its Form and Tenor.42—In a Special Verdict, permission
42. In general, on the History and Development of the Special Verdict, see:
Treatises: Thayer, A Preliminary Treatise on Evidence at the Common Law, c. V Law and Fact ia Jury Trials (Boston 1897); Scott, Fundamentals of Procedure in Actions nt Law, e. III, Trial by Jury, § 4, The Special Verdict, 95 (New York 1922).
Articles: Sunderland, Verdicts, General aad Special, 29 Yale L.J. 253 (1919); Morgan, A Brief History of Special Verdicts and Special Interrogatories, 32 Yale L.J. 575 (1922); Coleman, Advantages of Special Verdict, 13 J.Am.Jud.Soc. 122 (1929); Staton, The Special Verdict as an Aid to the Jury, 13 J.Am.Jud.Soc. 176 (1030); Lipscomb, Special Verdicts under the Federal Rules, 25 Wash. L.Q. 185 (1940); Nordhyc, Use of Special Ye,’dicts under Rules of Civil Procedure, 2 LED., 138 (1943); Dooloy, The Use of Special Issues Under the New State and Federal Rules, 20 Texas L.ltev. 32 (1941); Driver, A Consideration of the More l~xtended Use of the Special Verdict, 25 Wash.L.Rev. 43 (1950); Driver, The Special Verdict—Theory and Practice, 26 WashL 12ev 21 (1951); McCormick-,
for which was given by Chapter 30 of the Statute of Westminster II (1285) ,~ the Jury states the Naked Facts as they find them, concluding, conditionally, that if upon the whole matter the Court should be of the opinion that the plaintiff has a cause of action, they then find for the plaintiff; if otherwise, then for the defendant. Such Special Verdict, rendered in lieu of a General Verdict, leaves it to the Court to Apply the Law to the Facts, and largely obviates the necessity for Instructions, whereas, under a General Verdict, the Jury is required to Apply the Law to Questions of Fact under the Instructions of the Court.
At Common Law, it was entirely optional with the Jury to find Generally or Specially. If they returned a Special Verdict, setting forth their Findings of Fact, it concluded as follows: “that they (the Jury) are ignorant in Point of Law on which side they ought upon these Facts to find the Issue; that, if upon the whole matter the Court shall be of the opinion that the issue is proved for the plaintiff, they find for the plaintiff accordingly, and Assess the Damages at (a stated sum); but if the Court is of an opposite opinion, then vice versa.” Such Special Findings,
Jury Verdicts upon Special Questions in Civil Cases,
2 FED. 176 (1943),
Comments: Trial—Special Issnes—Comlitional Sub-mission, 16 Texas L.Bov. 383 (1985); The Special Verdict Under the Federal Rules of Civil Procedure. 34 Iil.L.Rev. 96 (1939); Ultimate and Controfling Issues in Texas: special Issue Submissions, 25 Texas L.Rev. 391 (1947); Special Findings and General Verdicts: The Reconciliation Doctrine, 18 U. of Chi.L.Rcv. 321 (1951); Trial Practice—Special Verdicts—Conclusions of Law— Failure to Find on All Issues, 16 Ohio St.LJ. 120 (1955).
Annotations: Effect of Failure of Special Verdict or
Special Finding to Include Findings of All Ultimate
Facts or Issues, 76 ALE. 1137 (1032); Failure of
One or More Jurors to Join in Answer to Special
Interrogatory or Special Verdict as Affecting Verdict, 155 ALE. ~SG (1945)