The Art of Cross-Examination

Counsel. "Well, you have heard twelve respectable citizens take the witness-stand and swear they voted the Republican ticket in your district, have you not?"

Prisoner. "Yes, sir."

Counsel (pointing to the jury). "And you see these twelve respectable gentlemen sitting here ready to pass judgment upon the question of your liberty, do you not?"

Prisoner. "I do, sir."

Counsel (impressively, but quietly). "Well, now, Mr. –, you will please explain to these twelve gentlemen (pointing to jury) how it was that the ballots cast by the other twelve gentlemen were not counted by you, and then you can take your hat and walk right out of the court room a free man."

The witness hesitated, cast down his eyes, but made no answer—and counsel sat down.

Of course a conviction followed. The prisoner was sentenced to five years in state prison. During the following few days nearly thirty defendants, indicted for similar offences, pleaded guilty, and the entire work of the court was completed within a few weeks. There was not a single acquittal or disagreement.

Occasionally, when sufficient knowledge of facts about the witness or about the details of his direct testimony can be correctly anticipated, a trap may be set into which even a clever witness, as in the illustration that follows, will be likely to fall.

During the lifetime of Dr. J. W. Ranney there were few physicians in this country who were so frequently seen on the witness-stand, especially in damage suits. So expert a witness had he become that Chief Justice Van Brunt many years ago is said to have remarked, "Any lawyer who attempts to cross-examine Dr. Ranney is a fool." A case occurred a few years before Dr. Ranney died, however, where a failure to cross-examine would have been tantamount to a confession of judgment, and the trial lawyer having the case in charge, though fully aware of the dangers, was left no alternative, and as so often happens where "fools rush in," made one of those lucky "bull's eyes" that is perhaps worth recording.

It was a damage case brought against the city by a lady who, on her way from church one spring morning, had tripped over an obscure encumbrance in the street, and had, in consequence, been practically bedridden for the three years leading up to the day of trial. She was brought into the court room in a chair and was placed in front of the jury, a pallid, pitiable object, surrounded by her women friends, who acted upon this occasion as nurses, constantly bathing her hands and face with ill-smelling ointments, and administering restoratives, with marked effect upon the jury.

Her counsel, Ex-chief Justice Noah Davis, claimed that her spine had been permanently injured, and asked the jury for $50,000 damages.

It appeared that Dr. Ranney had been in constant attendance upon the patient ever since the day of her accident. He testified that he had visited her some three hundred times and had examined her minutely at least two hundred times in order to make up his mind as to the absolutely correct diagnosis of her case, which he was now thoroughly satisfied was one of genuine disease of the spinal marrow itself. Judge Davis asked him a few preliminary questions, and then gave the doctor his head and let him "turn to the jury and tell them all about it." Dr. Ranney spoke uninterruptedly for nearly three-quarters of an hour. He described in detail the sufferings of his patient since she had been under his care; his efforts to relieve her pain; the hopeless nature of her malady. He then proceeded in a most impressive way to picture to the jury the gradual and relentless progress of the disease as it assumed the form of creeping paralysis, involving the destruction of one organ after another until death became a blessed relief. At the close of this recital, without a question more, Judge Davis said in a calm but triumphant tone, "Do you wish to cross-examine?"

Now the point in dispute—there was no defence on the merits—was the nature of the patient's malady. The city's medical witnesses were unanimous that the lady had not, and could not have, contracted spinal disease from the slight injury she had received. They styled her complaint as "hysterical," existing in the patient's mind alone, and not indicating nor involving a single diseased organ; but the jury evidently all believed Dr. Ranney, and were anxious to render a verdict on his testimony. He must be cross-examined. Absolute failure could be no worse than silence, though it was evident that, along expected lines, questions relating to his direct evidence would be worse than useless. Counsel was well aware of the doctor's reputed fertility of resource, and quickly decided upon his tactics.

The cross-examiner first directed his questions toward developing before the jury the fact that the witness had been the medical expert for the New York, New Haven, and Hartford R. R. thirty-five years, for the New York Central R. R. forty years, for the New York and Harlem River R. R. twenty years, for the Erie R. R. fifteen years, and so on until the doctor was forced to admit that he was so much in court as a witness in defence of these various railroads, and was so occupied with their affairs that he had but comparatively little time to devote to his reading and private practice.

Counsel (perfectly quietly). "Are you able to give us, doctor, the name of any medical authority that agrees with you when you say that the particular group of symptoms existing in this case points to one disease and one only?"

Doctor. "Oh, yes, Dr. Ericson agrees with me."

Counsel. "Who is Dr. Ericson, if you please?"

Doctor (with a patronizing smile). "Well, Mr. –, Ericson was probably one of the most famous surgeons that England has ever produced." (There was a titter in the audience at the expense of counsel.)

Counsel. "What book has he written?"

Doctor (still smiling). "He has written a book called 'Ericson on the Spine,' which is altogether the best known work on the subject." (The titter among the audience grew louder.)

Counsel. "When was this book published?"

Doctor. "About ten years ago."

Counsel. "Well, how is it that a man whose time is so much occupied as you have told us yours is, has leisure enough to look up medical authorities to see if they agree with him?"

Doctor (fairly beaming on counsel). "Well, Mr. –, to tell you the truth, I have often heard of you, and I half suspected you would ask me some such foolish question; so this morning after my breakfast, and before starting for court, I took down from my library my copy of Ericson's book, and found that he agreed entirely with my diagnosis in this case." (Loud laughter at expense of counsel, in which the jury joined.)

Counsel (reaching under the counsel table and taking up his own copy of "Ericson on the Spine," and walking deliberately up to the witness). "Won't you be good enough to point out to me where Ericson adopts your view of this case?"

Doctor (embarrassed). "Oh, I can't do it now; it is a very thick book."

Counsel (still holding out the book to the witness). "But you forget, doctor, that thinking I might ask you some such foolish question, you examined your volume of Ericson this very morning after breakfast and before coming to court."

Doctor (becoming more embarrassed and still refusing to take the book). "I have not time to do it now."

Counsel. "Time! why there is all the time in the world."

Doctor. (no answer).

Counsel and witness eye each other closely.

Counsel (sitting down, still eying witness). "I am sure the court will allow me to suspend my examination until you shall have had time to turn to the place you read this morning in that book, and can reread it now aloud to the jury."

Doctor (no answer).

The court room was in deathly silence for fully three minutes. The witness wouldn't say anything, counsel for plaintiff didn't dare to say anything, and counsel for the city didn't want to say anything; he saw that he had caught the witness in a manifest falsehood, and that the doctor's whole testimony was discredited with the jury unless he could open to the paragraph referred to which counsel well knew did not exist in the whole work of Ericson.

At the expiration of a few minutes, Mr. Justice Barrett, who was presiding at the trial, turned quietly to the witness and asked him if he desired to answer the question, and upon his replying that he did not intend to answer it any further than he had already done, he was excused from the witness-stand amid almost breathless silence in the court room. As he passed from the witness chair to his seat, he stooped and whispered into the ear of counsel, "You are the –est most impertinent man I have ever met."

After a ten days' trial the jury were unable to forget the collapse of the plaintiff's principal witness, and failed to agree upon a verdict.

CHAPTER V

CROSS-EXAMINATION OF EXPERTS

In these days when it is impossible to know everything, but it becomes necessary for success in any avocation to know something of everything and everything of something, the expert is more and more called upon as a witness both in civil and criminal cases. In these times of specialists, their services are often needed to aid the jury in their investigations of questions of fact relating to subjects with which the ordinary man is not acquainted.

The cross-examination of various experts, whether medical, handwriting, real estate, or other specialists, is a subject of growing importance, but it is intended in this chapter merely to make some suggestions, and to give a few illustrations of certain methods that may be adopted with more or less success in the examination of this class of witnesses.

It has become a matter of common observation that not only can the honest opinions of different experts be obtained upon opposite sides of the same question, but also that dishonest opinions may be obtained upon different sides of the same question.

Attention is also called to the distinction between mere matters of scientific fact and mere matters of opinion. For example: certain medical experts may be called to establish certain medical facts which are not mere matters of opinion. On such facts the experts could not disagree; but in the province of mere opinion it is well known that the experts differ so much among themselves that but little credit is given to mere expert opinion as such.

As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examinations along the lines of the expert's theory are usually disastrous and should rarely be attempted.

Many lawyers, for example, undertake to cope with a medical or handwriting expert on his own ground,—surgery, correct diagnosis, or the intricacies of penmanship. In some rare instances (more especially with poorly educated physicians) this method of cross-questioning is productive of results. More frequently, however, it only affords an opportunity for the doctor to enlarge upon the testimony he has already given, and to explain what might otherwise have been misunderstood or even entirely overlooked by the jury. Experience has led me to believe that a physician should rarely be cross-examined on his own specialty, unless the importance of the case has warranted so close a study by the counsel of the particular subject under discussion as to justify the experiment; and then only when the lawyer's research of the medical authorities, which he should have with him in court, convinces him that he can expose the doctor's erroneous conclusions, not only to himself, but to a jury who will not readily comprehend the abstract theories of physiology upon which even the medical profession itself is divided.

On the other hand, some careful and judicious questions, seeking to bring out separate facts and separate points from the knowledge and experience of the expert, which will tend to support the theory of the attorney's own side of the case, are usually productive of good results. In other words, the art of the cross-examiner should be directed to bring out such scientific facts from the knowledge of the expert as will help his own case, and thus tend to destroy the weight of the opinion of the expert given against him.

Another suggestion which should always be borne in mind is that no question should be put to an expert which is in any way so broad as to give the expert an opportunity to expatiate upon his own views, and thus afford him an opportunity in his answer to give his reasons, in his own way, for his opinions, which counsel calling him as an expert might not otherwise have fully brought out in his examination.

It was in the trial of Dr. Buchanan on the charge of murdering his wife, that a single, ill-advised question put upon cross-examination to the physician who had attended Mrs. Buchanan upon her death-bed, and who had given it as his opinion that her death was due to natural causes, which enabled the jury, after twenty-four hours of dispute among themselves, finally to agree against the prisoner on a verdict of murder in the first degree, resulting in Buchanan's execution.

The charge against Dr. Buchanan was that he had poisoned his wife—a woman considerably older than himself, and who had made a will in his favor—with morphine and atropine, each drug being used in such proportion as to effectually obliterate the group of symptoms attending death when resulting from the use of either drug alone.

At Buchanan's trial the district attorney found himself in the extremely awkward position of trying to persuade a jury to decide that Mrs. Buchanan's death was, beyond all reasonable doubt, the result of an overdose of morphine mixed with atropine administered by her husband, although a respectable physician, who had attended her at her death-bed, had given it as his opinion that she died from natural causes, and had himself made out a death certificate in which he attributed her death to apoplexy.

It was only fair to the prisoner that he should be given the benefit of the testimony of this physician. The District Attorney, therefore, called the doctor to the witness-stand and questioned him concerning the symptoms he had observed during his treatment of Mrs. Buchanan just prior to her death, and developed the fact that the doctor had made out a death certificate in which he had certified that in his opinion apoplexy was the sole cause of death. The doctor was then turned over to the lawyers for the defence for cross-examination.

One of the prisoner's counsel, who had far more knowledge of medicine than of the art of cross-examination, was assigned the important duty of cross-examining this witness. After badgering the doctor for an hour or so with technical medical questions more or less remote from the subject under discussion, and tending to show the erudition of the lawyer who was conducting the examination rather than to throw light upon the inquiry uppermost in the minds of the jury, the cross-examiner finally reproduced the death certificate and put it in evidence, and calling the doctor's attention to the statement therein made—that death was the result of apoplexy—exclaimed, while flourishing the paper in the air:—

"Now, doctor, you have told us what this lady's symptoms were, you have told us what you then believed was the cause of her death; I now ask you, has anything transpired since Mrs. Buchanan's death which would lead you to change your opinion as it is expressed in this paper?"

The doctor settled back in his chair and slowly repeated the question asked: "Has—anything—transpired—since—Mrs. Buchanan's—death—which—would—lead—me—to—change—my— opinion—as—it—is—expressed—in—this—paper?" The witness turned to the judge and inquired if in answer to such a question he would be allowed to speak of matters that had come to his knowledge since he wrote the certificate. The judge replied: "The question is a broad one. Counsel asks you if you know of any reason why you should change your former opinion?"

The witness leaned forward to the stenographer and requested him to read the question over again. This was done. The attention of everybody in court was by this time focussed upon the witness, intent upon his answer. It seemed to appear to the jury as if this must be the turning point of the case.

The doctor having heard the question read a second time, paused for a moment, and then straightening himself in his chair, turned to the cross-examiner and said, "I wish to ask you a question, Has the report of the chemist telling of his discovery of atropine and morphine in the contents of this woman's stomach been offered in evidence yet?" The court answered, "It has not."

"One more question," said the doctor, "Has the report of the pathologist yet been received in evidence?" The court replied, "No."

"Then" said the doctor, rising in his chair, "I can answer your question truthfully, that as yet in the absence of the pathological report and in the absence of the chemical report I know of no legal evidence which would cause me to alter the opinion expressed in my death certificate."

It is impossible to exaggerate the impression made upon the court and jury by these answers. All the advantage that the prisoner might have derived from the original death certificate was entirely swept away.

The trial lasted for fully two weeks after this episode. When the jury retired to their consultation room at the end of the trial, they found they were utterly unable to agree upon a verdict. They argued among themselves for twenty-four hours without coming to any conclusion. At the expiration of this time the jury returned to the court room and asked to have the testimony of this doctor reread to them by the stenographer. The stenographer, as he read from his notes, reproduced the entire scene which had been enacted two weeks before. The jury retired a second time and immediately agreed upon their verdict of death.

The cross-examinations of the medical witnesses in the Buchanan case conducted by this same "Medico-legal Wonder" were the subject of very extended newspaper praise at the time, one daily paper devoting the entire front page of its Sunday edition to his portrait.

How expert witnesses have been discredited with juries in the past, should serve as practical guides for the future. The whole effect of the testimony of an expert witness may sometimes effectually be destroyed by putting the witness to some unexpected and offhand test at the trial, as to his experience, his ability and discrimination as an expert, so that in case of his failure to meet the test he can be held up to ridicule before the jury, and thus the laughter at his expense will cause the jury to forget anything of weight that he has said against you.

I have always found this to be the most effective method to cross-examine a certain type of professional medical witnesses now so frequently seen in our courts. A striking instance of the efficacy of this style of cross-examination was experienced by the writer in a damage suit against the city of New York, tried in the Supreme Court sometime in 1887.

A very prominent physician, president of one of our leading clubs at the time, but now dead, had advised a woman who had been his housekeeper for thirty years, and who had broken her ankle in consequence of stepping into an unprotected hole in the street pavement, to bring suit against the city to recover $40,000 damages. There was very little defence to the principal cause of action: the hole in the street was there, and the plaintiff had stepped into it; but her right to recover substantial damages was vigorously contested.

Her principal, in fact her only medical witness was her employer, the famous physician. The doctor testified to the plaintiff's sufferings, described the fracture of her ankle, explained how he had himself set the broken bones and attended the patient, but affirmed that all his efforts were of no avail as he could bring about nothing but a most imperfect union of the bones, and that his housekeeper, a most respectable and estimable lady, would be lame for life. His manner on the witness-stand was exceedingly dignified and frank, and evidently impressed the jury. A large verdict of fully $15,000 was certain to be the result unless this witness's hold upon the jury could be broken on his cross-examination. There was no reason known to counsel why this ankle should not have healed promptly, as such fractures usually do; but how to make the jury realize the fact was the question. The intimate personal acquaintance between the cross-examiner and the witness was another embarrassment.

The cross-examination began by showing that the witness, although a graduate of Harvard, had not immediately entered a medical school, but on the contrary had started in business in Wall Street, had later been manager of several business enterprises, and had not begun the study of medicine until he was forty years old. The examination then continued in the most amiable manner possible, each question being asked in a tone almost of apology.

Counsel. "We all know, doctor, that you have a large and lucrative family practice as a general practitioner; but is it not a fact that in this great city, where accidents are of such common occurrence, surgical cases are usually taken to the hospitals and cared for by experienced surgeons?"

Doctor. "Yes, sir, that is so."

Counsel. "You do not even claim to be an experienced surgeon?"

Doctor. "Oh, no, sir. I have the experience of any general practitioner."

Counsel. "What would be the surgical name for the particular form of fracture that this lady suffered?"

Doctor. "What is known as a 'Potts fracture of the ankle.'"

Counsel. "That is a well-recognized form of fracture, is it not?"

Doctor. "Oh, yes."

Counsel (chancing it). "Would you mind telling the jury about when you had a fracture of this nature in your regular practice, the last before this one?"

Doctor (dodging). "I should not feel at liberty to disclose the names of my patients."

Counsel (encouraged). "I am not asking for names and secrets of patients—far from it. I am only asking for the date, doctor; but on your oath."

Doctor. "I couldn't possibly give you the date, sir."

Counsel (still feeling his way). "Was it within the year preceding this one?"

Doctor (hesitating). "I would not like to say, sir."

Counsel (still more encouraged). "I am sorry to press you, sir; but I am obliged to demand a positive answer from you whether or not you had had a similar case of 'Potts fracture of the ankle' the year preceding this one?"

Doctor. "Well, no, I cannot remember that I had."

Counsel. "Did you have one two years before?"

Doctor. "I cannot say."

Counsel (forcing the issue). "Did you have one within five years preceding the plaintiff's case?"

Doctor. "I am unable to say positively."

Counsel, (appreciating the danger of pressing the inquiry further, but as a last resort). "Will you swear that you ever had a case of 'Potts fracture' within your own practice before this one? I tell you frankly, if you say you have, I shall ask you day and date, time, place, and circumstance."

Doctor (much embarrassed). "Your question is an embarrassing one. I should want time to search my memory."

Counsel. "I am only asking you for your best memory as a gentleman, and under oath."

Doctor. "If you put it that way, I will say I cannot now remember of any case previous to the one in question, excepting as a student in the hospitals."

Counsel. "But does it not require a great deal of practice and experience to attend successfully so serious a fracture as that involving the ankle joint?"

Doctor. "Oh, yes."

Counsel. "Well, doctor, speaking frankly, won't you admit that 'Potts fractures' are daily being attended to in our hospitals by experienced men, and the use of the ankle fully restored in a few months' time?"