EXAMINATION. In Criminal Law.
The investigation by an authorized magistrate of • the circumstances which constitute the grounds for an accusation against a person arrested on a criminal charge, with a view to discharging the person so arrested, or to se curing his appearance for trial by the proper court, and to preserving the evidence relating to the matter.
Practically, it is accomplished by brioging the person accused, together with witnesses, before a magistrate (generally a jnstice of the peace), who thereupon takes down in writing the evidence of the witnesses, and any statements which the prisoner may see fit to make. If no cause for detention ap pears, the party is discharged from arrest. If suf ficient cause of suspicion appears to warrant put ting him on trial, he is committed, or required to give bail or enter into a recognizance to appear at the proper time for trial. The witnesses are also frequently required to recognize for their appear ance; though in ordinary cases only their own re cognizance is required. The magistrate signs or certifies the minutes of the evidence which he has taken, and it is delivered to the court before whom the trial is to be had. The object of an examina tion is to enable the judge and jury to see whetter the witnesses are consistent, and to ascertain whe ther the offence is bailable. 2 Leach, Cr. Cas. 552. And see 4 Sharswood, Blackst. Comm. 296.
2. At common law, the prisoner could not be interrogated by the magistrate ; but under the statutes 1 & 2 Phil. & M. c. 13, 2 & 3 Phil. & M. c. 10, the provisions of which have been substantially adopted in most of the United States, the magistrate is to examine the pri soner as well as the witnesses. 1 Greenleaf,
Ev. 224 ; 4 Sharswood, Blackst. Comm. 296; Roscoe, Crim. Ev. 44 ; Ry. & M. Cr. Cals. 432.
The examination should be taken and com pleted as soon as the nature of the case will admit. Croke Eliz. 829; 1 Hale, Pl. Cr. 585; 2 id. 120. The prisoner must not be put upon oath, but the witnesses must. 1 Phillipps, Ev. 106. The prisoner has no to the assistance of an attorney; but the pri vilege is granted at the discretian•of the ma gistrate. 2 Dowl. & R. 86; 1 Barnew. & C. 37; Paley, Cony. Dowl. ed. 28. The magis trate's return and certificate are conclusive evidence, and exclude parol evidence of what the prisoner said on that occasion with refer ence to the charge. 2 Carr. & K. 223 ; 5 Carr. & P. 162; 7 id. 267; 8 id. 605 ; 1 Mood. & M. 403 ; 1 Hayw. No. C. 112. See CONFESSION; RECOGNIZANCE; Stat. 7 Geo. IV. c. 64 ; 11 & 12 Viet. c. 42 ; and the statutes of the various states.
In Practice. The interrogation of a wit ness, in order to ascertain his knowledge as to the facts in dispute between parties.
3. The examination in chief is that made by the party calling the witness ; the cross examination is that made by the other party; an examination de bene esse is one made out of court before trial, as a matter of precau tion. See DE BENE ESSE.
The examination is to be made in open court, when practicable ; but when, on account of age, sickness, or other cause, the witness cannot be so examined, then it may be made before authorized commissioners. In the examination in chief the council caonot ask leading questions, except in par ticular cases. See CROSS-EXAMINATION; LEADING