missioner makes an opening statement, setting forth his views of the facts and the law.

Section 88. Taxpayer's Evidence. As far as practicable, the evidence should be adduced in logical sequence so as to minimize the burden on the Board of piecing together a story made up of disconnected parts. The marshalling of evidence in such manner as to have it tell a connected and easily followed story is one of the most important factors in the proper presentation of a case. Since the burden of proof is upon the taxpayer, and doubts as to matters of fact are resolved in favor of the Commissioner, it is obvious that any confusion in the minds of the members of the Board should be avoided if the taxpayer hopes to have the facts found in accordance with his contentions.

The order of proof and the various kinds of evidence, including stipulations, depositions, testimony and exhibits, have been previously discussed at some length.3

Section 89. Examination of Witnesses. The following paragraphs of this section outline very briefly the rights of counsel in eliciting testimony by direct examination, cross-examination and redirect examination of witnesses. Only the rules of major importance and such as are considered to be more likely to arise in hearings before the Board of Tax Appeals are discussed.

Ordinarily, a witness may only be examined by one counsel on a side, and only one counsel for the adverse party will be permitted to make objections during the

3 See Chapter V.

examination of a given witness. The Board, in its discretion, may modify this rule when necessary to accomplish the ends of justice or to expedite the proceedings.

After a witness has been duly sworn and his competency established, he is first examined on behalf of the party calling him. Such interrogation is designated as the direct examination of the witness. He is afterwards examined as to the same matters by the adverse party. Such interrogation is designated as cross-examination.

Direct Examination. In direct examination of a witness, questions may not be put which suggest to the witness the answer desired. Such questions are designated as leading questions. For the purpose of approaching the points at issue, leading questions may be put to the witness and counsel may recapitulate to him the acknowledged facts of the case which have been already established. The rule therefore is not applied to that part of the examination which is merely introductory to that which is material. There are a number of general rules as to questions held to be objectionable on the ground that they are leading:*

(a) Questions are objectionable as leading which embody a material fact and admit of an answer by a simple negative or affirmative. But that the question may be answered by "yes" or "no" is, of course, not necessarily decisive of its leading character.

(b) An argumentative course of interrogation is not permitted. The interrogatory must not assume

4 Greenleaf on "Evidence," 16th Edition, pp. 537-539.

facts to have been proven which have not been proven; nor that particular answers have been given which have not been given.

(c) With certain exceptions the witness is to be examined only as to matters of fact within his own knowledge, whether they consist of words or actions. As to these matters he should, in general, be plainly, directly and distinctly interrogated. Except where expert testimony is being given, the witness may not be interrogated as to inferences or conclusions.

Where the witness is hostile to the party producing him, or is unwilling to give evidence, leading questions are permitted. Leading questions are generally permissible in cross-examinations. Where the witness is evidently unable to answer a question because of faulty recollection, a proper suggestion assisting him may be made.

Use of Written Instrument to Refresh Recollection. A witness is permitted to refresh his memory by referring to a written instrument, memorandum or entry in a book made by him at or near the time to which it relates, and he may be compelled to do so if the writing is present in court. For the purposes of a hearing before the Board, it may be stated in general that where the witness neither recollects the facts, nor remembers to have recognized the written statement as true, his testimony so far as it is founded upon the written paper, is hearsay and will be either excluded or admitted subject to valuation as to the proper weight to be given it.

Cross-Examination.

After the witness has been examined on direct examination, adverse counsel has

a right to cross-examine him. It is now well established that a party has no right to cross-examine any witness except as to facts and circumstances connected with the matters stated in his direct examination. If he wishes to examine him as to other matters, he must do so by making the witness his own and calling him as such in the subsequent progress of the cause. On cross-examination, considerable latitude is customarily allowed with reference to questions as to collateral facts, especially where, on account of the conduct of the witness or the circumstances, such procedure seems essential to the discovery of the truth, or where the cross-examiner will undertake to show the relevancy of the question or questions by subsequent evidence. It is, however, well established that a witness cannot be cross-examined as to any fact which is collateral and irrelevant to the issue, merely for the purpose of contradicting him by other evidence if he should deny it, thereby to discredit his testimony.

Considerable latitude will be allowed in cross-examining witnesses as to values in order to test the accuracy of their knowledge and the reasonableness of their estimates. To test such opinion evidence, a witness may be interrogated as to the grounds on which his opinion is based. Hypothetical questions are frequently allowed to test the skill or knowledge of the witness, although such questions assume facts for which there is no foundation in the evidence.

Redirect Examination. After the witness has been cross-examined along the lines indicated in the preceding paragraph, the party who called him has the

right to examine the witness as to matters brought out on cross-examination. On such redirect examination, counsel has no right to introduce new matter, or matter which is not suited to the purpose of explaining either the expressions or the motives of the witness, or to rebut or neutralize any adverse inferences which can be drawn from the evidence elicited on his crossexamination. The Board may, however, in its discretion permit a witness to be reëxamined with reference to subjects not brought out on either his cross-examination or his examination-in-chief.

Section 90. Resting Case. At the conclusion of the introduction of the taxpayer's evidence-in-chief, his counsel indicates to the Board that the taxpayer rests. The Commissioner's evidence is then introduced, and he rests. If new matters have been brought out in the Commissioner's evidence, the taxpayer may introduce evidence in rebuttal. This process continues until both parties have finally rested. After the case has been finally rested on both sides, it will be reopened and further evidence admitted only under extraordinary circumstances, the right to reopen being a matter entirely in the discretion of the Board.

Section 91. Taxpayer's Opening Argument. As a general rule the Board will not permit more than two counsel on each side to be heard. This rule, however, is subject to some variation under extraordinary circumstances. Where several taxpayers appear by separate attorneys and have separate counsel, they will each be heard unless their interests are in unison, in which case, the Board may require them to select one or more of the counsel to be heard for all. The