The Art of Cross-Examination

Doctor. "That may be, but much depends upon the age of the patient; and again, in some cases, nothing seems to make the bones unite."

Counsel (stooping under the table and taking up the two lower bones of the leg attached and approaching the witness). "Will you please take these, doctor, and tell the jury whether in life they constituted the bones of a woman's leg or a man's leg?"

Doctor. "It is difficult to tell, sir."

Counsel. "What, can't you tell the skeleton of a woman's leg from a man's, doctor?"

Doctor. "Oh, yes, I should say it was a woman's leg."

Counsel (smiling and looking pleased). "So in your opinion, doctor, this was a woman's leg?" [It was a woman's leg.]

Doctor (observing counsel's face and thinking he had made a mistake). "Oh, I beg your pardon, it is a man's leg, of course. I had not examined it carefully."

By this time the jury were all sitting upright in their seats and evinced much amusement at the doctor's increasing embarrassment.

Counsel (still smiling). "Would you be good enough to tell the jury if it is the right leg or the left leg?"

Doctor (quietly, but hesitatingly). [It is very difficult for the inexperienced to distinguish right from left.] "This is the right leg."

Counsel (astonished). "What do you say, doctor?"

Doctor (much confused). "Pardon me, it is the left leg."

Counsel. "Were you not right the first time, doctor. Is it not in fact the right leg?"

Doctor. "I don't think so; no, it is the left leg."

Counsel (again stooping and bringing from under the table the bones of the foot attached together, and handing it to the doctor). "Please put the skeleton of the foot into the ankle joint of the bones you already have in your hand, and then tell me whether it is the right or left leg."

Doctor (confidently). "Yes, it is the left leg, as I said before."

Counsel (uproariously). "But, doctor, don't you see you have inserted the foot into the knee joint? Is that the way it is in life?"

The doctor, amid roars of laughter from the jury, in which the entire court room joined, hastily readjusted the bones and sat blushing to the roots of his hair. Counsel waited until the laughter had subsided, and then said quietly, "I think I will not trouble you further, doctor."

This incident is not the least bit exaggerated; on the contrary, the impression made by the occurrence is difficult to present adequately on paper. Counsel on both sides proceeded to sum up the case, and upon the part of the defence no allusion whatsoever was made to the incident just described. The jury appreciated the fact, and returned a verdict for the plaintiff for $240. Next day the learned doctor wrote a four-page letter of thanks and appreciation that the results of his "stage fright" had not been spread before the jury in the closing speech.

An estimate of the susceptibility of occasional juries drawn from some country panels to have their attention diverted from the facts in a case by their fondness for entertainment has at times induced attorneys to try the experiment of framing their questions on cross-examination of medical experts so that the jury will be amused by the questions themselves and will overlook the damaging testimony given by a serious-minded and learned opposing medical witness.

An illustration of this was afforded not long ago by a case brought by a woman against the Trustees of the New York and Brooklyn Bridge. The plaintiff, while alighting from a bridge car, stepped into the space between the car and the bridge platform and fell up to her armpits. She claimed that she had sustained injuries to her ribs, lungs, and chest, and that she was suffering from resultant pleurisy and intercostal neuritis. A specialist on nerve injuries, called by the defence, had testified that there was nothing the matter with the plaintiff, as he had tested her with the stethoscope and had made a thorough examination, had listened at her chest to detect such "rales" as are generally left after pleurisy, and had failed to find any lesions or injuries to the pleural nerves whatsoever.

The attorney for the plaintiff, Mirabeau L. Towns of Brooklyn, had evidently correctly "sized up" the particular jury who were to decide his case, and proceeded to cross-examine the doctor in rhyme, which the learned physician, absorbed in his task of defending himself, did not notice until the laughter of the jury advised him that he was being made ridiculous.

Mr. Towns arose and said:—

Q. "Now, doctor, please listen to me. You say for the sake of a modest fee you examined the plaintiff most carefully?"

A. "I tried to do my duty, sir."

Q. "But you saw no more than you wanted to see?"

A. "What do you mean, sir?"

Q. "Well, you laid your head upon her chest?"

A. "I did."

Q. "That was a most delightful test?"

A. "Well, it is the common way of ascertaining if there is anything abnormal in the lungs."

Q. "And you mean to say, doctor, that if your ears are as good as mine, and with your knowledge of medicine, a mangled pleura's rale and rattle you'd hear as plain as guns in battle?"

A. "I mean to say this, and no more,—that it would be impossible, if a person was suffering from a lacerated pleura, for me not to detect it by the test I made."

Q. "Now, you did this most carefully?"

A. "I did."

Q. "For you had to earn your expert's fee?"

A. "Of course I was paid for my examination, but that had nothing to do with it. I want you to understand that I made my examination most conscientiously."

Q. "Can you swear that you saw no more than you wanted to see?"

A. "I saw nothing."

Q. "And each of her ribs, on your oath as a scholar, was as good and sound as a daddy's dollar?"

(Outburst of laughter, and the judge used his gavel. Dr. – appealed to the court for protection, but Mr. Towns continued.)

Q. "You say you think she was malingering?"

A. "I do."

Q. "So when the poor creature ventured to cope with you and your science and your stethoscope, for her you'll acknowledge there was little hope?"

A. "I have come here to tell the truth, and I maintain that it would be very hard for a young woman of her type to deceive me."

(Renewed laughter and the judge's gavel fell with greater force. Counsel was admonished, but he continued.)

Q. "She might scream in anguish till the end of her breath, your opinion once formed you'd hold until death?"

Not answered.

Q. "Though she fell through a hole clear up to her arm, and that's quite a fall, it did her no harm; in fact, if she'd fallen from Mount Chimborazo, you'd say she's unhurt and continue to say so. Such a fall from such a height, one might observe, might break all her ribs, but ne'er injure a nerve?"

The Doctor. "Your honor, I don't wish to be made ridiculous by this gentleman, and I protest against his questions, they are unfair."

Before the court could rule, Mr. Towns continued:—

Q. "And you hope to be seized with the dance of St. Vitus if you found on the plaintiff intercostal neuritis?"

The Doctor. "Your Honor, I refuse to answer."

Here the judge interfered and admonished counsel that he had pursued this line of inquiry long enough.

That Mr. Towns was correct in his estimate of this absurd panel of jurors was shown by a very large verdict in favor of his client, and by a request signed by each one of the jurors personally that counsel would send them a copy of his cross-examination of the defendant's doctor.

As distinguished from the lengthy, though doubtless scientific, cross-examination of experts in handwriting with which the profession has become familiar in many recent famous trials that have occurred in this city, the following incident cannot fail to serve as a forcible illustration of the suggestions laid down as to the cross-examination of specialists. It would almost be thought improbable in a romance, yet every word of it is true.

In the trial of Ellison for felonious assault upon William Henriques, who had brought Mr. Ellison's attentions to his daughter, Mrs. Lila Noeme, to a sudden close by forbidding him his house, the authenticity of some letters, alleged to have been written by Mrs. Noeme to Mr. Ellison, was brought in question. The lady herself had strenuously denied that the alleged compromising documents had ever been written by her. Counsel for Ellison, the late Charles Brooke, Esq., had evidently framed his whole cross-examination of Mrs. Noeme upon these letters, and made a final effort to introduce them in evidence by calling Professor Ames, the well-known expert in handwriting. He deposed to having closely studied the letter in question, in conjunction with an admittedly genuine specimen of the lady's handwriting, and gave it as his opinion that they were all written by the same hand. Mr. Brooke then offered the letters in evidence, and was about to read them to the jury when the assistant district attorney asked permission to put a few questions.

District Attorney. "Mr. Ames, as I understood you, you were given only one sample of the lady's genuine handwriting, and you base your opinion upon that single exhibit, is that correct?"

Witness. "Yes, sir, there was only one letter given me, but that was quite a long one, and afforded me great opportunity for comparison."

District Attorney. "Would it not assist you if you were given a number of her letters with which to make a comparison?"

Witness. "Oh, yes, the more samples I had of genuine handwriting, the more valuable my conclusion would become."

District Attorney (taking from among a bundle of papers a letter, folding down the signature and handing it to the witness). "Would you mind taking this one and comparing it with the others, and then tell us if that is in the same handwriting?"

Witness (examining paper closely for a few minutes). "Yes, sir, I should say that was the same handwriting."

District Attorney. "Is it not a fact, sir, that the same individual may write a variety of hands upon different occasions and with different pens?"

Witness. "Oh, yes, sir; they might vary somewhat."

District Attorney (taking a second letter from his files, also folding over the signature and handing to the witness). "Won't you kindly take this letter, also, and compare it with the others you have?"

Witness (examining the letter). "Yes, sir, that is a variety of the same penmanship."

District Attorney. "Would you be willing to give it as your opinion that it was written by the same person?"

Witness. "I certainly would, sir."

District Attorney (taking a third letter from his files, again folding over the signature, and handing to the witness). "Be good enough to take just one more sample—I don't want to weary you—and say if this last one is also in the lady's handwriting."

Witness (appearing to examine it closely, leaving the witness-chair and going to the window to complete his inspection). "Yes, sir, you understand I am not swearing to a fact, only an opinion."

District Attorney (good-naturedly). "Of course I understand; but is it your honest opinion as an expert, that these three letters are all in the same handwriting?"

Witness. "I say yes, it is my honest opinion."

District Attorney. "Now sir, won't you please turn down the edge where I folded over the signature to the first letter I handed you, and read aloud to the jury the signature?"

Witness (unfolding the letter and reading triumphantly). "Lila Noeme."

District Attorney. "Please unfold the second letter and read the signature."

Witness (reading). "William Henriques."

District Attorney. "Now the third, please."

Witness (hesitating and reading with much embarrassment). "Frank Ellison!"10

The alleged compromising letters were never read to the jury.

CHAPTER VI

THE SEQUENCE OF CROSS-EXAMINATION

Much depends upon the sequence in which one conducts the cross-examination of a dishonest witness. You should never hazard the important question until you have laid the foundation for it in such a way that, when confronted with the fact, the witness can neither deny nor explain it. One often sees the most damaging documentary evidence, in the form of letters or affidavits, fall absolutely flat as exponents of falsehood, merely because of the unskilful way in which they are handled. If you have in your possession a letter written by the witness, in which he takes an opposite position on some part of the case to the one he has just sworn to, avoid the common error of showing the witness the letter for identification, and then reading it to him with the inquiry, "What have you to say to that?" During the reading of his letter the witness will be collecting his thoughts and getting ready his explanations in anticipation of the question that is to follow, and the effect of the damaging letter will be lost.

The correct method of using such a letter is to lead the witness quietly into repeating the statements he has made in his direct testimony, and which his letter contradicts. "I have you down as saying so and so; will you please repeat it? I am apt to read my notes to the jury, and I want to be accurate." The witness will repeat his statement. Then write it down and read it off to him. "Is that correct? Is there any doubt about it? For if you have any explanation or qualification to make, I think you owe it to us, in justice, to make it before I leave the subject." The witness has none. He has stated the fact; there is nothing to qualify; the jury rather like his straightforwardness. Then let your whole manner toward him suddenly change, and spring the letter upon him. "Do you recognize your own handwriting, sir? Let me read you from your own letter, in which you say,"—and afterward—"Now, what have you to say to that?" You will make your point in such fashion that the jury will not readily forget it. It is usually expedient, when you have once made your point, to drop it and go to something else, lest the witness wriggle out of it. But when you have a witness under oath, who is orally contradicting a statement he has previously made, when not under oath, but in his own handwriting, you then have him fast on the hook, and there is no danger of his getting away; now is the time to press your advantage. Put his self-contradictions to him in as many forms as you can invent:—

"Which statement is true?" "Had you forgotten this letter when you gave your testimony to-day?" "Did you tell your counsel about it?" "Were you intending to deceive him?" "What was your object in trying to mislead the jury?"11

"Some men," said a London barrister who often saw Sir Charles Russell in action, "get in a bit of the nail, and there they leave it hanging loosely about until the judge or some one else pulls it out. But when Russell got in a bit of the nail, he never stopped until he drove it home. No man ever pulled that nail out again."

Sometimes it is advisable to deal the witness a stinging blow with your first few questions; this, of course, assumes that you have the material with which to do it. The advantage of putting your best point forward at the very start is twofold. First, the jury have been listening to his direct testimony and have been forming their own impressions of him, and when you rise to cross-examine, they are keen for your first questions. If you "land one" in the first bout, it makes far more impression on the jury than if it came later on when their attention has begun to lag, and when it might only appear as a chance shot. The second, and perhaps more important, effect of scoring on the witness with the first group of questions is that it makes him afraid of you and less hostile in his subsequent answers, not knowing when you will trip him again and give him another fall. This will often enable you to obtain from him truthful answers on subjects about which you are not prepared to contradict him.

I have seen the most determined witness completely lose his presence of mind after two or three well-directed blows given at the very start of his cross-examination, and become as docile in the examiner's hands as if he were his own witness. This is the time to lead the witness back to his original story and give him the opportunity to tone it down or retint it, as it were; possibly even to switch him over until he finds himself supporting your side of the controversy. This taming of a hostile witness, and forcing him to tell the truth against his will, is one of the triumphs of the cross-examiner's art. In a speech to the jury, Choate once said of such a witness, "I brand him a vagabond and a villain; they brought him to curse, and, behold, he hath blessed us altogether."

Some witnesses, under this style of examination, lose their tempers completely, and if the examiner only keeps his own and puts his questions rapidly enough, he will be sure to lead the witness into such a web of contradictions as entirely to discredit him with any fair-minded jury. A witness, in anger, often forgets himself and speaks the truth. His passion benumbs his power to deceive. Still another sort of witness displays his temper on such occasions by becoming sullen; he begins by giving evasive answers, and ends by refusing to answer at all. He might as well go a little farther and admit his perjury at once, so far as the effect on the jury is concerned.

When, however, you have not the material at hand with which to frighten the witness into correcting his perjured narrative, and yet you have concluded that a cross-examination is necessary, never waste time by putting questions which will enable him to repeat his original testimony in the sequence in which he first gave it. You can accomplish nothing with him unless you abandon the train of ideas he followed in giving his main story. Select the weakest points of his testimony and the attendant circumstances he would be least likely to prepare for. Do not ask your questions in logical order, lest he invent conveniently as he goes along; but dodge him about in his story and pin him down to precise answers on all the accidental circumstances indirectly associated with his main narrative. As he begins to invent his answers, put your questions more rapidly, asking many unimportant ones to one important one, and all in the same voice. If he is not telling the truth, and answering from memory and associated ideas rather than from imagination, he will never be able to invent his answers as quickly as you can frame your questions, and at the same time correctly estimate the bearing his present answer may have upon those that have preceded it. If you have the requisite skill to pursue this method of questioning, you will be sure to land him in a maze of self-contradictions from which he will never be able to extricate himself.

Some witnesses, though unwilling to perjure themselves, are yet determined not to tell the whole truth if they can help it, owing to some personal interest in, or relationship to, the party on whose behalf they are called to testify. If you are instructed that such a witness (generally a woman) is in possession of the fact you want and can help you if she chooses, it is your duty to draw it out of her. This requires much patience and ingenuity. If you put the direct question to her at once, you will probably receive a "don't remember" answer, or she may even indulge her conscience in a mental reservation and pretend a willingness but inability to answer. You must approach the subject by slow stages. Begin with matters remotely connected with the important fact you are aiming at. She will relate these, not perhaps realizing on the spur of the moment exactly where they will lead her. Having admitted that much, you can lead her nearer and nearer by successive approaches to the gist of the matter, until you have her in such a dilemma that she must either tell you what she had intended to conceal or else openly commit perjury. When she leaves the witness-chair, you can almost hear her whisper to her friends, "I never intended to tell it, but that man put me in such a position I simply had to tell or admit that I was lying."

In all your cross-examinations never lose control of the witness; confine his answers to the exact questions you ask. He will try to dodge direct answers, or if forced to answer directly, will attempt to add a qualification or an explanation which will rob his answer of the benefit it might otherwise be to you. And lastly, most important of all, let me repeat the injunction to be ever on the alert for a good place to stop. Nothing can be more important than to close your examination with a triumph. So many lawyers succeed in catching a witness in a serious contradiction; but, not satisfied with this, go on asking questions, and taper off their examination until the effect upon the jury of their former advantage is lost altogether. "Stop with a victory" is one of the maxims of cross-examination. If you have done nothing more than to expose an attempt to deceive on the part of the witness, you have gone a long way toward discrediting him with your jury. Jurymen are apt to regard a witness as a whole—either they believe him or they don't. If they distrust him, they are likely to disregard his testimony altogether, though much of it may have been true. The fact that remains uppermost in their minds is that he attempted to deceive them, or that he left the witness-stand with a lie upon his lips, or after he had displayed his ignorance to such an extent that the entire audience laughed at him. Thereafter his evidence is dismissed from the case so far as they are concerned.

Erskine once wasted a whole day in trying to expose to a jury the lack of mental balance of a witness, until a physician who was assisting him suggested that Erskine ask the witness whether he did not believe himself to be Jesus Christ. This question was put by Erskine very cautiously and with studied humility, accompanied by a request for forgiveness for the indecency of the question. The witness, who was at once taken unawares, amid breathless silence and with great solemnity exclaimed, "I am the Christ"—which soon ended the case.12

CHAPTER VII

SILENT CROSS-EXAMINATION

Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers—and alas! not only young ones—who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case.

The infinite variety of types of witnesses one meets with in court makes it impossible to lay down any set rules applicable to all cases. One seldom comes in contact with a witness who is in all respects like any one he has ever examined before; it is this that constitutes the fascination of the art. The particular method you use in any given case depends upon the degree of importance you attach to the testimony given by the witness, even if it is false. It may be that you have on your own side so many witnesses who will contradict the testimony, that it is not worth while to hazard the risks you will necessarily run by undertaking an elaborate cross-examination. In such cases by far the better course is to keep your seat and ask no questions at all. Much depends also, as will be readily appreciated, upon the age and sex of the witness. In fact, it may be said that the truly great trial lawyer is he who, while knowing perfectly well the established rules of his art, appreciates when they should be broken. If the witness happens to be a woman, and at the close of her testimony-in-chief it seems that she will be more than a match for the cross-examiner, it often works like a charm with the jury to practise upon her what may be styled the silent cross-examination. Rise suddenly, as if you intended to cross-examine. The witness will turn a determined face toward you, preparatory to demolishing you with her first answer. This is the signal for you to hesitate a moment. Look her over good-naturedly and as if you were in doubt whether it would be worth while to question her—and sit down. It can be done by a good actor in such a manner as to be equivalent to saying to the jury, "What's the use? she is only a woman."