§5.7.15eorum vero, quibus denuntiatur, pars testium est quae reum laedere velit, pars quae nolit, idque interim scit accusator interim nescit.
On the other hand, of those who are summoned, there is one part of the witnesses that wishes to harm the defendant, and another that does not, and this the accuser sometimes knows and sometimes does not.
fingamus in praesentia scire; in utroque tamen genere summis artibus interrogantis opus est.
Let us suppose for the present that he knows; yet in both classes there is need of the greatest skills on the part of the questioner.
§5.7.16nam si habet testem cupidum laedendi, cavere debet hoc ipsum, ne cupiditas eius appareat, nec statim de eo, quod in iudicium venit, rogare, sed aliquo circuitu ad id pervenire, ut illi, quod maxime dicere voluit,videatur expressum; nec nimium instare interrogationi,ne ad omnia respondendo testis fidem suam minuat, sed in tantum evocare eum, quantum sumere ex uno satis sit.
For if he has a witness eager to harm, he must guard against this very thing, lest his eagerness appear, and not immediately ask about that which comes into judgment, but arrive at it by some circuitous route, so that what he most wished to say may seem to have been squeezed out of him; nor should he press the interrogation too hard, lest the witness, by answering everything, diminish his own credibility, but elicit from him only as much as is enough to take from one person.
§5.7.17at in eo, qui verum invitus dicturus est, prima felicitas interrogantis extorquere quod is noluerit.
On the other hand, in the case of one who is going to speak the truth unwillingly, the first success of the questioner is to extort what he did not wish to say.
hoc non alio modo fieri potest quam longius interrogatione repetita.
This can be done in no other way than by repeating the interrogation from a greater distance.
respondebit enim, quae nocere causae non arbitrabitur; ex pluribus deinde, quae confessus erit, eo perducetur ut quod dicere non vult negare non possit.
For he will answer what he does not think will harm the cause; then, from the many things he has confessed, he will be led to the point where he cannot deny what he does not wish to say.
nam, §5.7.18ut in oratione sparsa plerumque colligimus argumenta, quae per se nihil reum aggravare videantur, congregatione deinde eorum factum convincimus, ita huiusmodi testis multa de anteactis, multa de insecutis, loco, tempore, persona, ceteris est interrogandus, ut in aliquod responsum incidat, post quod illi vel fateri quae volumus necesse sit vel iis quae iam dixerit repugnare.
For, just as in a scattered speech we generally collect arguments which by themselves do not seem to weigh down the defendant, and then by their gathering we prove the crime, so a witness of this kind must be questioned much about past acts, much about subsequent ones, about place, time, person, and other things, so that he may fall into some answer after which it is necessary for him either to confess what we wish or to contradict what he has already said.
§5.7.19id si non contingit, reliquum erit, ut eum nolle dicere manifestum sit, protrahendusque, ut in aliquo, quod vel extra causam sit, deprehendatur; tenendus etiam diutius, ut omnia ac plura quam res desiderat pro reo dicendo suspectus iudici fiat; quo non minus nocebit, quam si vera in reum dixisset.
If that does not succeed, it will remain to make it manifest that he is unwilling to speak, and he must be drawn out so that he may be caught in something which is even outside the case; he must also be held longer, so that by saying everything and more than the matter requires in favor of the defendant, he may become suspect to the judge; by which he will do no less harm than if he had spoken the truth against the defendant.
§5.7.20at si (quod secundo loco diximus) nesciet actor, quid propositi testis attulerit, paulatim et, ut dicitur, pedetentim interrogando experietur animum eius et ad id responsum quod eliciendum erit per gradus ducet.
But if (as we said in the second place) the advocate does not know what purpose the witness has brought, he will test his mind by questioning gradually and, as the saying goes, step by step, and will lead him by degrees to that answer which is to be elicited.
§5.7.21sed, quia nonnunquam sunt hae quoque testium artes, ut primo ad voluntatem respondeant, quo maiore fide diversa postea dicant, est actoris suspectum testem, dum prodest, dimittere.
But because sometimes these also are the arts of witnesses, to answer according to our wish at first, so that they may afterwards say contrary things with greater credibility, it is the part of the advocate to dismiss a suspect witness while he is doing good.
§5.7.22patronorum in parte expeditior, in parte difficilior interrogatio est.
The interrogation on the part of the advocates is in one respect easier, in another more difficult.
difficilior hoc, quod raro unquam possunt ante indicium scire, quid testis dicturus sit; expeditior, quod, cum interrogandus est, sciunt quid dixerit.
It is more difficult in this, that they can rarely ever know before the trial what the witness is going to say; easier in this, that when he is to be questioned, they know what he has said.
§5.7.23itaque, quod in eo incertum est, cura et inquisitione opus est, quis reum premat, quas et quibus ex causis inimicitias habeat: eaque in oratione praedicenda atque amolienda sunt, sive odio conflatos testes sive invidia sive gratia sive pecunia videri volumus.
Therefore, in what is uncertain in this regard, there is need of care and inquiry as to who is pressing the defendant, and what enmities he has and for what reasons; and these must be anticipated and swept away in the speech, whether we wish the witnesses to appear to be inflamed by hatred, or envy, or favor, or money.
et si deficietur numero pars diversa, paucitatem; si abundabit, conspirationem; si humiles producet, vilitatem; si potentes, gratiam oportebit incessere.
And if the opposing party is deficient in number, we must attack their paucity; if they abound, their conspiracy; if they produce humble persons, their worthlessness; if powerful ones, their influence.
§5.7.24plus tamen proderit causas, propter quas reum laedant, exponere; quae sunt variae et pro condicione cuiusque litis aut litigatoris.
Yet it will be more beneficial to expose the causes for which they harm the defendant; which are various and according to the condition of each lawsuit or litigant.
nam contra illa, quae supra diximus, simili ratione responderi locis communibus solet, quia ut in paucis atque humilibus accusator simplicitate gloriari potest, quod neminem praeter eos, qui possint scire, quaesierit et multos atque honestos commendare aliquanto est facilius.
For against those things which we have said above, it is customary to answer in a similar manner with commonplaces, because just as in the case of few and humble witnesses the accuser can boast of his simplicity, because he sought none other than those who could know the fact, so to commend many and honorable ones is considerably easier.
§5.7.25verum interim et singulos ut exornare, ita destruere contingit, aut recitatis in actione testimoniis aut testibus nominatis.
But at times it happens that we can either adorn or destroy individuals, either by reading testimonies in the speech or by naming the witnesses.
quod iis temporibus, quibus testis non post finitas actiones rogabatur, et facilius et frequentius fuit.
This was both easier and more frequent in those times when the witness was not questioned after the speeches were finished.
quid autem in quemque testium dicendum sit, sumi nisi ex ipsorum personis non potest.
However, what ought to be said against each of the witnesses cannot be derived except from their own persons.
§5.7.26reliquae interrogandi sunt partes.
The remaining parts concern interrogation.
qua in re primum est nosse testem.
In this matter, the first thing is to know the witness.
nam timidus terreri, stultus decipi, iracundus concitari, ambitiosus inflari potest; prudens vero et constans vel tanquam inimicus et pervicax dimittendus statim vel non interrogatione, sed brevi interlocutione patroni refutandus est aut aliquo, si continget, urbane dicto refrigerandus aut, si quid in eius vitam dici poterit, infamia criminum destruendus.
For a timid witness can be terrified, a foolish one deceived, an angry one provoked, an ambitious one puffed up; but a prudent and consistent witness must either be dismissed immediately as hostile and obstinate, or refuted not by interrogation but by a brief remark from the advocate, or cooled down by some witty saying, if opportunity offers, or, if anything can be said against his life, destroyed by the infamy of his crimes.