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Examination

magistrate, witnesses, prisoner, evidence, person and trial

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 securing his appearance for trial by the proper court, and to preserving the evidence relating to the matter.

Practically, it is accomplished by bringing the person accused, together with witnesses, before a magistrate (generally a justice 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 appears, the party is discharged from arrest. If sufficient cause of suspicion appears to warrant putting 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 examination is to enable the judge and jury to see whether the witnesses are consistent, and to ascertain whether the offence is bailable. 2 Leach 552. And see 4 Sharsw. Sta. Com. 296.

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 states, the magistrate is to examine the prisoner as well as the witnesses. 1 Greenl. ET. § 224 ; 4 Bla. Corn. 296 ; Rose. Cr. Ev. 44; Ry. & M. 432.

The examination should be taken and com pleted as soon as the nature of the case will admit ; Cro. Eliz. 829 ;. 1 Hale, Pl. Cr. 585; 2 id. 120. The ,prisoner must not be put up on oath, but the witnesses must ; 1 •Phil. Ev.

106; Archb. Cr. Pr. & Pl. 386. The prisoner formerly had no right to the assistance of an attorney ; but the privilege was granted at the discretion of the magistrate ; 2 Dowl. & R. 86; 1 B. & C. 37. Now, however, a pris oner is permitted to have counsel as a mat ter of course. The magistrate's return and certificate are conclusive evidence, and ex clude parol evidence, of what the prisoner said on that with reference to the charge ; 2 C. & K. 223 ; 5 C. & P. 162 ; 1 Mood. & M. 403. See CONFESSION ; RECOGNIZANCE.

In Practice. The interrogation of a wit ness, in order to ascertain his knowledge as to the facts in dispute between parties.

The examination in chief is that made by the party calling the witness; the cross-ex amination is that made by the other party. In the examination in chief the counsel can not ask leading questions, except in particu lar cases. See CROSS-EXAMINATION ; LEADING QUESTIONS.

The examination is to be made in open court, when practicable ; but when, on account of age, sickness, absence from the jurisdiction, or other cause, the witness cannot be so examined, then in civil causes it may be made before authorized commissioners.

The interrogation of a person who is de sirous of performing some act, or availing himself of some privilege of the law, in or der to ascertain if all the requirements of the law have been complied with, conducted by and before an officer having authority for the purpose.

There are many acts which can be of validity and binding force only upon an examination. Thus, in many states, a married woman must be privately examined as to whether she has given her consent freely and without restraint to a deed which she ap pears to have executed ; see ACKNOWLEDGMENT ; an insolvent who wishes to take the benefit of the insol vent laws, one who is about to become botpad for another in legal proceedings, a bankrupt, etc., must submit to an examination.