Spis treści

WPROWADZENIE

PODZIĘKOWANIA

CZEGO UCZY NAS FRANCIS L. WELLMAN?

THE ART OF CROSS-EXAMINATION

PREFACE

PREFACE TO THE SECOND EDITION

PART I. THE PRINCIPLES OF CROSS-EXAMINATION

CHAPTER I. INTRODUCTORY

CHAPTER II. THE MANNER OF CROSS-EXAMINATION

CHAPTER III. THE MATTER OF CROSS-EXAMINATION

CHAPTER IV. CROSS-EXAMINATION OF THE PERJURED WITNESS

CHAPTER V. CROSS-EXAMINATION OF EXPERTS

CHAPTER VI. THE SEQUENCE OF CROSS-EXAMINATION

CHAPTER VII. SILENT CROSS-EXAMINATION

CHAPTER VIII. CROSS-EXAMINATION TO THE “FALLACIES OF TESTIMONY”

CHAPTER IX. CROSS-EXAMINATION TO PROBABILITIES — PERSONALITY OF THE EXAMINER, ETC.

CHAPTER X. CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES

CHAPTER XI. SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS

THE ART OF CROSS-EXAMINATION

With the Cross-Examinations of Important Witnesses in Some Celebrated Cases

Francis L. Wellman

Redakcja

SSN, dr hab., prof. UW Adam Redzik

Tłumaczenie

adw. Julian J. Bąkowski

Przedmowa

adw. Wojciech Bergier

Francis L. Wellman

The Art of Cross-Examination: With the Cross-Examinations of Important Witnesses in Some Celebrated Cases

Sztuka przesłuchania krzyżowego

Wydawca: Joanna Szypulska

Redakcja: SSN, dr hab., prof. UW Adam Redzik

Tłumaczenie: adw. Julian J. Bąkowski

Przedmowa: adw. Wojciech Bergier

© Wydawnictwo C.H.Beck 2019

Wszelkie prawa zastrzeżone.

Wydawnictwo C.H.Beck Sp. z o.o.

ul. Bonifraterska 17, 00-203 Warszawa

www.ksiegarnia.beck.pl

Skład i łamanie: Krystyna Szych

Przygotowanie wersji elektronicznej/Electronic version: Wydawnictwo C.H.Beck

ISBN: 978-83-8198-341-9

WPROWADZENIE

Nie ma anglosaskiego prawnika, który nie zaznajomiłby się w trakcie przygotowywania do zawodu adwokata ze sztuką prowadzenia przesłuchań krzyżowych, czyli z cross-examination. Wśród bogatej literatury przedmiotu do absolutnie podstawowych pozycji, by nie rzec do kanonu, należy książka, która powstała przed ponad stu laty jako wskazówki doświadczonego adwokata dla jego synów. Jej autorem jest Francis Lewis Wellman – wzięty adwokat procesualista z Nowego Jorku. Chociaż nie był najgłośniejszym adwokatem swoich czasów, dziś jest jednym z nielicznych ze swego pokolenia, którego nazwisko na stałe weszło do dziejów sztuki obrończej, a to właśnie za sprawą książki wydanej po raz pierwszy w 1903 roku nakładem popularnej oficyny The Macmillan Company.

Francis Lewis Wellman urodził się 29 lipca 1854 r. w Brookline w stanie Massachusetts. Był potomkiem Francisa Lewisa, trzeciego sygnatariusza Deklaracji Niepodległości Stanów Zjednoczonych, oraz Morgana Lewisa, m.in. członka Senatu Nowego Jorku, a później gubernatora Nowego Jorku. Ojcem Francisa Lewisa był William A. Wellman, a matką Matilda Gouverneur Ogden (1817–1901). Miał czworo rodzeństwa: braci Williama Augustusa i Arthura oraz siostry Mary Fairlie oraz Ewę[1]. Zdobył znakomite wykształcenie. Jako najlepszy student w 1878 r. ukończył prawo na Uniwersytecie Harvarda (LL.B. – Bachelor of Laws). Następnie przez kilka lat prowadził zajęcia na macierzystej uczelni, a także w Boston Law School. Równolegle rozpoczął praktykę adwokacką. W 1883 r. przeniósł się do Nowego Jorku i dołączył do New York City Corporation Counsel’s. Reprezentował miasto Nowy Jork w wielu postępowaniach cywilnych. W 1891 r. został powołany na pierwszego assistant district attorney hrabstwa Nowego Jorku. Jako adwokat sądowy występował w wielu głośnych procesach. W prowadzonych przez niego sprawach dochodziło do zaskakujących zwrotów akcji, których dokonywał dzięki przesłuchaniom krzyżowym. Podkreślał zawsze, że nie były one efektem sztuczek, ale solidnego przygotowania.

Wellman był trzykrotnie żonaty. Z pierwszego małżeństwa, z Corą Allan (zm. 1890), miał dwóch synów: Roderica i Allena, z drugiego małżeństwa, z Edith Watson (zm. 1892), córkę Corę Edith. W trzecim małżeństwie, z Emmą Juch, nie miał dzieci[2].

Jak wspomniano, prezentowaną książkę autor dedykował synom. Wiemy, że jeden z nich, Roderic, ur. 16 kwietnia 1882 r. w Brooklynie, w 1906 r. ukończył Uniwersytet Harvarda ze stopniem LL.B[3]. Młodszy z braci, Allen, urodzony w 1884 r., ukończył ten sam uniwersytet ze stopniem LL.B. w 1908 r.[4]. W czasie pisania książki przez Francisa Lewisa Wellmana synowie nie rozpoczęli jeszcze studiów prawniczych, studiowali dopiero na wydziale sztuk (wstępnym), ale – jak napisał ojciec w dedykacji – „wyrazili wolę wstąpienia do adwokatury”. Gdy kończyli studia, Francis Lewis był członkiem Holmes Law Club oraz adwokatury nowojorskiej, a kancelarię adwokacką prowadził przy Wall Street 54. Rodzina Wellmanów mieszkała wówczas przy tej samej ulicy pod numerem 15[5]. Dziś budynki te nie istnieją.

Francis Lewis Wellman nie mógł się spodziewać, że jego praktyczny poradnik dla adwokatów osiągnie taki sukces i stanie się na pokolenia bestsellerem, podstawą w kształceniu adwokatów, wejdzie do wąskiego kanonu książek, które powinien znać każdy adwokat sądowy. Jeszcze za jego życia był on wielokrotnie wznawiany i uzupełniany. Nie zmieniło się to po jego śmierci, która nastąpiła 9 czerwca 1942 r. – w szacownym wieku 87 lat. Umarł jako spełniony adwokat i autorytet prawniczy.

Wypada odnotować, że poza pierwszym i zarazem najbardziej znanym dziełem o sztuce przesłuchania sądowego Francis Lewis Wellman napisał jeszcze książki: Day in Court or the Subtle Arts of Great Advocates[6], Gentlemen of the Jury: Reminiscences of Thirty Years at the Bar[7], Luck and Opportunity: Recollections[8], Success in Court[9] (wspólnie z innymi adwokatami). Żadna z nich nie zdobyła choćby części sławy pierwszej.

W krajach systemu prawnego Common Law książka Wellmana jest stale wznawiana i cieszy się niesłabnącym zainteresowaniem wśród kolejnych pokoleń prawników. Jest także chętnie cytowana przez autorów współczesnych publikacji z zakresu trial advocacy, sztuki perswazji, a nawet nauk o komunikacji w biznesie czy w poradnikach procesowych dla biegłych lekarzy[10]. O uniwersalnym charakterze wskazówek w niej zawartych niech świadczy to, że doczekała się kilku wersji językowych, m.in. włoskiej[11], rosyjskiej[12] i tradycyjnej chińskiej[13].

Prace nad polskim przekładem The Art of Cross-Examination rozpoczęliśmy w 2013 r. W pierwotnym założeniu książka miała się ukazać po wprowadzeniu w Polsce modelu tzw. kontradyktoryjnego procesu karnego, który zakładał ograniczenie prawa członków składu orzekającego do zadawania pytań osobie przesłuchiwanej tylko w „wyjątkowych wypadkach, uzasadnionych szczególnymi okolicznościami”. Jak to zwykle bywa, problemy dnia codziennego uniemożliwiły ukończenie przekładu w czasie epizodycznego obowiązywania tych przepisów. Nie zmienia to jednak faktu, że w sztuce obrończej umiejętności, o których pisze Wellman, są przydatne.

Instytucja przesłuchania krzyżowego (cross-examination) nie została recypowana do większości procedur państw o kontynentalnym systemie prawa, w tym także do polskich ustaw procesowych. W systemach anglosaskich przyjmuje się założenie, że osoba powołana do składania zeznań nie jest „świadkiem w sprawie”, ale jest świadkiem powołującej ją strony. Sprawdzeniu wiarygodności, spostrzegawczości, nieświadomej stronniczości i tym podobnych cech świadka powołanego na wniosek przeciwnika procesowego służy przesłuchanie krzyżowe, w którego toku możliwe jest zadawanie sugerujących pytań. W Polsce zakaz zadawania takich pytań jest unormowany wyraźnie w procedurze karnej, ale uzus sądowy i dość skąpe stanowisko judykatury oraz doktryny rozciągają go także na postępowanie cywilne.

Procesualista polski może się zastanawiać, co – w związku z powyższymi uwagami – lektura książki Wellmana wniesie do jego praktyki. Na pewno służy ona refleksji. Mając węższe możliwości przesłuchania świadków/biegłych, mamy po prostu wyżej postawioną poprzeczkę. Na wynik sprawy często nie wpływają wyłącznie argumenty natury czysto jurydycznej. Tam, gdzie sporny jest stan faktyczny, a jego ustalenie wymaga korzystania z osobowych źródeł dowodowych, z pewnością bardzo ważne są umiejętności adwokackie, o których przeczytamy u Wellmana. Banalne jest stwierdzenie, że adwokat, przygotowując się do prowadzenia sprawy, powinien wiedzieć, co chce wykazać i za pomocą jakich środków dowodowych. Dotyczy to zarówno wydobywania zeznań korzystnych dla klienta, jak i obalania zeznań dla niego niekorzystnych. Nie nazywamy tego przesłuchaniem krzyżowym, ale przecież siłą rzeczy, mniej lub bardziej świadomie, stosujemy techniki znane z cross-examination. To, czy ostaną się zadawane przez nas świadkowi lub biegłemu pytania, czy też zostaną uchylone przez sąd, zależy w dużej mierze od ich formy, stylu, szyku – od warsztatu i sprytu – sztuki oratorskiej. Oczywiście do uwzględnienia na sali sądowej pozostaje wiele innych aspektów, które w znacznej mierze wynikają z doświadczenia. Tego żadna publikacja nie zastąpi.

Książka napisana jest prostym językiem w formule „zasada – przykład” i zawiera wiele elementów humorystycznych – przypadków przesłuchań, których wynik nierzadko zaskakuje. Radzimy ją czytać uważnie, z refleksją nad kontekstem historycznym, w którym jest osadzona. Inaczej ryzykuje się pominięcie niektórych smaczków, szczególnie ze styku „zasady” z „przykładem”.

Tłumacz starał się niekiedy przybliżyć kontekst spraw omawianych przez autora na podstawie własnych poszukiwań. Opisywał ów kontekst w nawiasach w tekście, a gdy wymagało to szerszej prezentacji – w przypisach na dole strony. Przekład nie wszędzie ma charakter dosłowny. Przykładowo w rozdziale poświęconym sylwetkom wybitnych cross-examinerów we fragmencie o Charlesie Russellu na określenie celności zadawanych przez niego pytań użyto zwrotu: Master Charlie is bonding very straight, co można przełożyć na wiele sposobów; dosłownie na: Mistrz Charlie wyjątkowo prosto wyprowadza kulę kręglarską, mniej dosłownie na: Mistrz Charlie wyjątkowo wymierza celne ciosy. Kierując się jednak potrzebą zapewnienia Czytelnikowi wygodnej lektury, zastępowano podobne zwroty związkami frazeologicznymi spotykanymi w języku polskim, a zatem wskazany fragment przetłumaczono: Mistrz Charlie wyjątkowo celnie strzela gole.

Pierwotnie mieliśmy spolszczyć całą książkę Wellmana, pojawił się jednak pomysł, aby wydanie było dwujęzyczne. Z uwagi na fakt, że druga część ma mniejsze znaczenie, postanowiliśmy jej nie tłumaczyć, a wydrukować jedynie w wersji angielskiej. Doszliśmy też do przekonania, że materiały szkoleniowe z części drugiej mogą być uzupełnione pojawiającymi się w ostatnich latach publikacjami współczesnymi. Przykładem może być książka omówiona na łamach „Palestry” (Nr 11 z 2016 r.) – Adwokat diabła Iana Morleya[14]. Nawiasem mówiąc, Morley napisał, że książkę Francisa Wellmana „z pewnością każdy adwokat powinien przeczytać”, i dodał: „Na początek. Poszukaj tych książek teraz”[15] – wskazując na dzieło Wellmana oraz The Art of the Advocate Richarda Du Canna.

Pozostaje nam życzyć Czytelnikowi przyjemnej i pouczającej lektury, a na jej kanwie refleksji nad sztuką obrończą. Liczymy, że choć w małym stopniu książka Francisa Lewisa Wellmana będzie przydatna w praktyce lub – po prostu – w życiu.

SSN, dr hab., prof. UW Adam Redzik, adw. Julian J. Bąkowski

1 The Ogden Family in America, Elizabethtown Branch and Their English Ancestry. John Ogden, the Pilgrim and His Descendants 1640–1906, Their History, Biography & Genealogy, compiled by William Ogden Wheeler, edited by Lawrence van Alstyne and rev. Charles Burr Ogden, Ph.D., J. B. Lippincott Company Philadelphia [1907], s. 156, 276.

2 The Ogden Family in America, Elizabethtown Branch and Their English Ancestry. John Ogden, the Pilgrim and His Descendants 1640–1906, s. 276.

3 Charles Warren, History of the Harvard Law School and of Early Legal Conditions in America, vol. I, New York: Lewis Publishing Company 1908, s. 346.

4 Harvard Alumni Directory, Harvard University 1914, s. 853, 1466.

5 The Ogden Family in America, Elizabethtown Branch and Their English Ancestry. John Ogden, the Pilgrim and His Descendants 1640–1906, s. 276.

6 F.L. Wellman, Day in Court or the Subtle Arts of Great Advocates, New York, The Macmillan Company 1910, s. 257.

7 F.L. Wellman, Gentlemen of the Jury: Reminiscences of Thirty Years at the Bar, New York 1937, s. 298.

8 F.L. Wellman, Luck and Opportunity: Recollections, New York 1938, s. 214.

9 Success in Court, by Francis L. Wellman, we współpracy z dziewięcioma prominentnymi amerykańskimi adwokatami procesualistami, New York 1941, s. 404.

10 Zob. m.in. Terry J. Fadem, The Art of Asking: Ask Better Questions, Get Better Answers, FT Press, 2009, New Jersey; Richard E. Anderson, Medical Malpractice: A Physician’s Sourcebook, New Jersey 2007; George Pullman, Persuasion: History, Theory, Practice, Indianapolis 2013.

11 Francis L. Wellman, L’ arte della cross-examination, Milano 2009.

12 Франсис Люис Веллман, Искусство перекрестного допроса, пер. с англ. К.Адамович, Москва 2011, s. 294 (z serii: Адвокатская практика).

13 Francis L. Wellman, , Taiwan 1999.

14 A. Bąkowski, J. Bąkowski, Rady angielskiego kolegi, Palestra 2016, Nr 11, s. 151.

15 I. Morley, Adwokat diabła. Krótki traktat o tym, jak być naprawdę dobrym w sądzie, Kancelaria Radcy Prawnego Piotr Staroń, Warszawa 2014, s. 15.

PODZIĘKOWANIA

Wydanie niniejszego przekładu nie byłoby możliwe bez życzliwości i pracy wielu osób. Gdyby nie oni najprawdopodobniej porzuciłbym ten pomysł. W pierwszej kolejności chciałbym podziękować SSN Profesorowi UW Adamowi Redzikowi, który będąc jeszcze zastępcą redaktora naczelnego „Palestry”, wspierał tę ideę i czynnie jej patronował od samego początku, oraz SSN Profesorowi UW Antoniemu Bojańczykowi, którego merytoryczne i korektorskie uwagi zmotywowały mnie do podniesienia poziomu przekładu.

Dziękuję za cenne uwagi redaktorowi naczelnemu „Palestry” śp. Panu Mecenasowi Czesławowi Jaworskiemu, prezesowi Naczelnej Rady Adwokackiej w latach 1995–2001, Pani Annie Grabowskiej oraz Panu Maciejowi Kwiekowi.

Szczególną wdzięczność pragnę wyrazić mojemu Tacie, Andrzejowi Bąkowskiemu, stawiającemu mi zawsze wysokie wymagania i – co najważniejsze – stanowiącemu dla mnie wzorzec do naśladowania. Dziękuję Mu także za konsultację kolejnych wersji tłumaczenia.

Julian J. Bąkowski

Tłumaczenie to poświęcam pamięci adwokata Czesława Jaworskiego.

CZEGO UCZY NAS FRANCIS L. WELLMAN?

Sędzia udzieliła głosu aplikantowi adwokackiemu i poprosiła, aby rozpoczął przesłuchanie świadka.

Aplikant zapytał zdecydowanym tonem: „Czemu świadek nie odchodził z miejsca zdarzenia?”.

Sędzia: „Uchylam pytanie, zawiera ono sugestię, proszę inaczej zadać pytanie”.

Aplikant: „Czemu zatem świadek pozostał na miejscu zdarzenia?”.

Sędzia: „Uchylam pytanie. Proszę nie zadawać sugerujących pytań”.

Aplikant: „Czemu…”.

Sędzia: „Panie mecenasie, proszę inaczej zadawać pytania, na przykład zaczynać od »czy świadek« i tak właśnie pytać. Zrozumiał pan?”.

Aplikant: „Tak, oczywiście, od czy”.

Sędzia: „Proszę zatem zapytać świadka «czy» i postawić pytanie”.

Aplikant: „Czy…mu świadek nie oddalił się z tego miejsca?”.

To nie fragment komedii o prawniku, ale prawdziwe zdarzenie. Co najgorsze, tym aplikantem byłem ja. Do dziś ta opowiastka krąży po jednym z wydziałów krakowskiego sądu rejonowego.

Pokazuje ona, jak trudno nakłonić niektórych do zmiany sposobu pytania. W tamtym czasie, gdy jako aplikant przygotowywałem się do przesłuchania naocznego świadka, starałem się wykazać, że nie było dużego niebezpieczeństwa na miejscu zdarzenia. Czy-mu się tak uparłem, aby w ten sposób zadawać pytania, sam nie wiem. Wiem jednak, że gdybym wówczas miał książkę Wellmana, inaczej poprowadziłbym przesłuchanie świadka. Ale wtedy nie byłoby tej historyjki.

Amerykańscy prawnicy często nazywają cross-examination najbardziej oczekiwanym momentem w procesie. Stąd też w Stanach podczas szkolenia adwokatów kładzie się olbrzymi nacisk na rozwijanie umiejętności jasnego formułowania myśli i konstruowania pytań, tak by przesłuchania świadków czy biegłych przyniosły spodziewany efekt. Stąd też książka Wellmana jest podstawową lekturą amerykańskiego prawnika. Lekka w formie, a zarazem mądra, sprawia wiele przyjemności czytelnikowi.

Szkoda, że w Polsce nie doczekaliśmy się podobnej pracy. Przed wojną nie brakowało głośnych procesów i ciekawych wystąpień. Po wojnie, w nowej rzeczywistości, adwokaci musieli balansować na sali sądowej. Szczególnie w procesach politycznych kultura obrony była jednym z fundamentów odważnej i honorowej adwokatury. Zapomniana została stara, mądra zasada: „staraj się wygrać sprawę z jak najmniejszą szkodą dla przeciwnika”. Dziś dominuje raczej styl andabaty – walenie na oślep w przeciwnika i prymitywny atak na świadka, tylko dlatego, że druga strona sporu go zawnioskowała. A przecież nie o to chodzi.

Wymowne jest, że dotychczas nie powstała w Polsce podobna praca, dostosowana do charakteru naszych procedur sądowych. Są opasłe uniwersyteckie podręczniki do procedury karnej: staroświecki styl, bez polotu, bez przykładów, prawnicze krawiectwo ciężkie.

Czytanie tych książek jest równie zajmujące co lektura książki telefonicznej województwa śląskiego (nota bene książki te mają podobną objętość). A wystarczy poszperać w naszej literaturze, aby odnaleźć podobne przykłady jak u Wellmana.

Bogusław Longchamps de Bérier w swoich wspomnieniach opisuje praktykę sądową, gdy pracował jako protokolant w CK sądzie we Lwowie.

„W obronie karnej wiedli prym trzej adwokaci: Grek, Pieracki i Horowitz. Ten ostatni, mimo że fatalnie mówił po polsku, a zatrącał też żargonem, mówiąc po niemiecku, należał do najlepszych i najszczęśliwszych obrońców. Z największym spokojem i powagą umiał ośmieszyć przeciwnika lub jego argumenty do tego stopnia, że rzetelna ocena tych argumentów stawała się niemożliwa i wartość ich malała do zera. Wykorzystywał każdy najmniejszy błąd przeciwnika, każdy najdrobniejszy szczegół. Opowiadano, że gdy w pewnym procesie o zgwałcenie adwokat, jego współwyznawca, zastępujący stronę poszkodowaną, udowadniał winę oskarżonego tym, że świadkowie stwierdzili braki w jego ubraniu, Horowitz, replikując, powiedział: «To nie jest wystarczającym dowodem, u nas Żydów to poniekąd rytualne. Oto np. mój wielce szanowny przeciwnik – i tu wskazał na niego palcem – to on właśnie ma teraz spodnie rozpięte, a przecież nikogo nie zgwałcił»”.

Ten sam autor, wspominając innego znakomitego lwowskiego adwokata Michała Greka, opisuje sprawę, w której Grek bronił więźnia mającego grozić strażnikowi więziennemu przebiciem nożem. „Dopiero na samym końcu przesłuchania wywiązał się między obrońcą a dozorcą taki dialog:

– Czy pan przestrzegał regulaminu w swoich celach?

– Tak jest, panie mecenasie, jak najściślej.

– W takim razie skąd się wziął nóż w celi?

– Panie mecenasie, w każdej celi jest nóż do jedzenia przytwierdzony do ściany na łańcuszku.

– A czy mocno?

– Tak jest, koń by tego nie wyrwał.

– Dziękuję panu.

Sąd uwolnił oskarżonego «dla braku istoty czynu», ponieważ pogróżka nie mogła wzbudzić uzasadnionej obawy”[16].

I tak opowieść sądowa z czasów CK Austrii uzmysławia nam starą adwokacką prawdę: nie pytaj za wiele, postaw kilka kluczowych pytań.

W tym miejscu warto wspomnieć o „złotej zasadzie” wykładanej przez mecenasa Jacka Kulisiewicza:

1. Wiedz, co masz powiedzieć.

2. Powiedz to.

3. Zakończ i nie mów więcej.

Zakończenie pytania świadka w odpowiednim momencie to też sztuka. Wellman w swoich przykładach wielokrotnie wskazuje, że musimy być zdyscyplinowani przy przesłuchaniu świadka. Ileż razy na sali sądowej adwokat ukrywa twarz w dłoniach po zadaniu tego jednego, zbędnego pytania. „No i dopytał się” – cicho szepce wtedy Temida.

Wellman, w uroczy dla siebie sposób, przytacza anegdotę na ten temat: „William Ballantine w swoich Wspomnieniach cytuje proces więźnia oskarżonego o zabójstwo – jeden z bardziej sławnych angielskich barristerów, ponaglany przez drugiego adwokata, wbrew własnemu osądowi, zadał pytanie, które ostatecznie skazało jego klienta. Usłyszawszy odpowiedź, odwrócił się do kolegi i powiedział, cedząc każde słowo: «Idź do domu, podetnij sobie gardło, a kiedy już spotkasz swojego klienta w piekle, to błagaj go o wybaczenie»”.

Praca Wellmana porządkuje adwokackie prawdy o przesłuchaniu świadków, uczy nas, że w tym ważnym momencie procesu adwokat powinien wykazać się:

– pracowitością,

– skupieniem,

– wyczuciem.

Pracowitość

U podstaw każdego przesłuchania leży rzetelne przygotowanie się do sprawy. Warto przypomnieć znany wśród prawniczej braci cytat z Abrahama Lincolna: „Gdybym miał osiem godzin na ścięcie drzewa, poświęciłbym sześć godzin na ostrzenie siekiery”. Każde przesłuchanie świadka poprzedzone jest mozolnym, często nużącym studiowaniem akt sprawy, wyławianiem nieścisłości i niedomówień. Długotrwałe przygotowanie się do rozprawy jest mało spektakularne, niewidoczne dla klienta i obserwatorów procesu. Stanowi jednak konieczny element dyscypliny w naszej pracy. Czy zawsze się udaje? Niekoniecznie. Zdarzają się bowiem sytuacje, gdy pojawienie się za barierką świadka wzbudza konsternację. Nikt z obecnych na sali nie przyznaje się do świadka, nikt nie wie, kim on jest ani kto go zawnioskował. Wówczas sędzia, przyjmując oficjalny ton, zwraca się do świadka: „No i co może nam świadek powiedzieć o sprawie?”. Zdarzyło się nawet, że dopiero w połowie przesłuchania okazało się, że jest on wezwany do kolejnej sprawy na wokandzie. Ponieważ poprzednia sprawa miała znaczne opóźnienie, dostał się w tryby pytań, które wprowadzały go w całkowite zakłopotanie. Na wszystkie pytania odpowiadał: „Ja w tej sprawie nic nie wiem”. I mówił to szczerze. Nawet Wellman nie przewidział, jak wybrnąć z takiej sytuacji.

Skupienie

Ciekawa rzecz, że już ponad sto lat temu Wellman zwrócił uwagę na to, aby bacznie obserwować reakcje świadka. „Podczas całego bezpośredniego przesłuchania wyobrażanego przez nas świadka, o czym trzeba pamiętać, patrzymy na każdy jego ruch i wyraz twarzy. Czy znaleźliśmy punkt zaczepny do przeprowadzenia przesłuchania krzyżowego? Czy namierzyliśmy słaby punkt w jego narracji? Jeśli tak, nie traćmy czasu i zmierzajmy prosto do sedna. Może być tak, że stosunek świadka do stron lub przedmiotu sporu powinien być naświetlony przysięgłym jako jeden z powodów, dla których zeznaje na korzyść jednej ze stron. Może być bezpośrednio zainteresowany przedmiotem rozstrzygnięcia albo ma uzyskać z niego pośrednio jakąś korzyść” (str. 336).

Oderwijmy wzrok od czytania kolejnych pytań, odłóżmy notowanie fragmentów wypowiedzi świadka (Czy ktokolwiek korzystał z tych zapisków? Przecież zawsze sięgamy po wydrukowane protokoły z przesłuchań), przestańmy rysować na kartkach głowonogi i szkice nawiązujące do obrazów Jacksona Pollocka. Skupmy się na świadku – co i jak mówi. Dziś skupienie jako rzadkie zjawisko ma swoją wartość. Podczas wielogodzinnych procesów widzimy, jak pełnomocnicy sprawdzają pocztę e-mail, grają na smartfonie czy też czytają horoskopy. Nie tylko my to widzimy, widzą to sędziowie (siedzą wyżej), widzą to także klienci (zazwyczaj siedzą za nami). Warto odłożyć na moment cuda techniki i przyjrzeć się świadkowi. Być może jeden gest zdradzi jego słabość. A może podświadomie poszuka wzrokiem odpowiedzi u naszego przeciwnika? Nie zauważymy tego, gdy będziemy zajęci swoimi sprawami.

Wyczucie

Stara adwokacka prawda głosi, że świadków możemy podzielić na cztery grupy:

1) świadkowie przychylni,

2) świadkowie nieprzychylni,

3) świadkowie mądrzy,

4) świadkowie głupi.

Zawsze pytajmy świadków przychylnych-mądrych oraz nieprzychylnych-głupich, nigdy zaś świadków przychylnych-głupich i nieprzychylnych-mądrych[17].

Musimy wypracować umiejętność wyczuwania, z jakimi świadkami mamy do czynienia. Ileż razy zdarzało się, że nasz kluczowy świadek położył sprawę dzięki naszym pytaniom. Znowu jak dzwon brzmi Wellmanowska prawda: „Idź do domu, podetnij sobie gardło, a kiedy już spotkasz swojego klienta w piekle, to błagaj go o wybaczenie”.

Nie tak dawno w sprawie o zabójstwo jeden z adwokatów ochoczo przepytywał własnego świadka, który pogrążał klienta. Każda kolejna fatalna odpowiedź świadka w praktyce oznaczała dodatkowy rok pozbawienia wolności. Siedzący z tyłu oskarżony syczał i wymyślał kolejne wulgarne związki frazeologiczne. Siedzący obok adwokat starej daty powiedział po przesłuchaniu: „Wolałbym zjeść na śniadanie te pytania, niż zadać je świadkowi”.

Aby uniknąć takich sytuacji, warto ze szczególną uwagą przeczytać rozdział VII tej książki pt. „Nieme przesłuchanie krzyżowe”.

Przystępując do opracowania przesłuchania świadka, należy przesłuchać klienta (i siebie samego), czy warto w ogóle pytać go o cokolwiek. To podstawowa kwestia. Jeśli świadek ma nas zaskoczyć rewelacją ujawnioną pod wpływem emocji czy też za sprawą odpowiedzi na „jedno pytanie za dużo” – lepiej odpuśćmy przesłuchanie.

Wellman słusznie pisze: „Nic nie jest bardziej absurdalne i nie stanowi większej straty czasu niż krzyżowe przesłuchiwanie świadka, który nic przeciwko nam nie zeznał. Jednak, o dziwo, sądy są pełne młodych prawników – co więcej, nie tylko młodych – czujących przymus przesłuchania krzyżowego każdego zaprzysiężonego świadka. Boją się, że inaczej klienci i przysięgli posądzą ich o ignorancję oraz o nieumiejętne prowadzenie sprawy. Nierzadko takie zbędne przesłuchania prowadzą do wykształcenia się nowych wątków sprawy, korzystnych dla przeciwnika, a świadek, którego można by zbyć milczeniem, staje się prawdziwą bolączką”.

Nieme przesłuchanie ma swoją moc procesową i często jest jedynym rozsądnym wyjściem dla pełnomocnika z trudnej sytuacji. Wielokrotnie jest tak, że doskonale przygotowany świadek strony przeciwnej (ten właśnie nieprzychylny-mądry) tylko czeka na nasze pytania, żeby nas ośmieszyć zwróceniem się do sądu: „Nie bardzo rozumiem tak postawione pytanie”, albo do nas: „Proszę precyzyjnie sformułować swoje pytanie”, a nawet dobić znanym: „Co ma pan mecenas na myśli?”. Dlatego tak ważne są wyczucie i decyzja, że na rozprawie nie będziemy się odzywali w ogóle. „Siedź cicho” – podpowiada rozum, ale w tym samym czasie za togę ciągnie klient i podaje kartkę z zapisanymi pytaniami. Zbyt często chcemy zaistnieć przed klientem, któremu wydaje się, że dobry prawnik to ten, który dużo i głośno mówi. Brak pytań powinien być wyjaśniony wcześniej klientowi. Na pewno zrozumie taką taktykę procesową i nie pomyli jej z brakiem przygotowania czy lenistwem. A jeśli nie zrozumie, być może lepiej będzie, jak sam zada pytania. Volenti non fit…[18] i tak dalej.

Wreszcie, dzięki lekturze Wellmana, wiemy, że każde pytanie musi być wkomponowane w przesłuchanie. Czytajmy przykłady z tej książki, porównujmy je z naszymi doświadczeniami i ćwiczmy się w sztuce zadawania pytań. Z pewnością dzięki tej lekturze unikniemy takiej wymiany zdań:

Adwokat: „Więc świadek twierdzi, że po wypadku cierpi na zaniki pamięci?”.

Świadek: „Tak, panie mecenasie, nie pamiętam wielu rzeczy sprzed wypadku”.

Adwokat: „Proszę podać przykłady wydarzeń, których pan nie pamięta”.

Adw. Wojciech Bergier

16 B. Longchamps de Bérier, Ochrzczony na szablach powstańczych… Wspomnienia (1884–1918), Warszawa 1983, s. 302.

17 W. Bergier, J. Jacyna, Etyka zawodu adwokata, Warszawa 2018, s. 133.

18 Volenti non fit iniuria – chcącemu nie dzieje się krzywda.

THE ART OF CROSS-EXAMINATION

TO MY SONS

RODERIC AND ALLEN

WHO HAVE EXPRESSED THEIR INTENTION

TO ENTER THE LEGAL PROFESSION

THIS BOOK

IS AFFECTIONATELY DEDICATED

“Cross-examination, – the rarest, the most useful, and

the most difficult to be acquired of all the accomplishments

of the advocate... It has always been deemed the surest

test of truth and a better security than the oath.”

– Cox

PREFACE

In offering this book to the legal profession I do not intend to arrogate to myself any superior knowledge upon the subject, excepting in so far as it may have been gleaned from actual experience. Nor have I attempted to treat the subject in any scientific, elaborate, or exhaustive way; but merely to make some suggestions upon the art of cross-examination, which have been gathered as a result of twenty-five years’ court practice, during which time I have examined and cross-examined about fifteen thousand witnesses, drawn from all classes of the community.

If what is here written affords anything of instruction to the younger members of my profession, or of interest or entertainment to the public, it will amply justify the time taken from my summer vacation to put in readable form some points from my experience upon this most difficult subject.

Bar Harbor, Maine,

September 1, 1903.

PREFACE TO THE SECOND EDITION

I presume it is the experience of every author, after his first book is published upon an important subject, to be almost overwhelmed with a wealth of ideas and illustrations which could readily have been included in his book, and which to his own mind, at least, seem to make a second edition inevitable. Such certainly was the case with me; and when the first edition had reached its sixth impression in five months, I rejoiced to learn that it seemed to my publishers that the book had met with a sufficiently favorable reception to justify a second and considerably enlarged edition.

The book has practically been rewritten, so important are the additions, although the first few chapters have been left very much as they were.

The chapter on the “Cross-Examination of Experts” has been rearranged, many new examples added, and the discussion much extended.

There is a new chapter on “Cross-Examination to the Fallacies of Testimony,” which is intended to be a brief discussion of the philosophy of oral evidence.

There is also a new chapter on “Cross-Examination to Probabilities,— Personality of the Examiner, etc.” with many instructive illustrations.

Perhaps one of the most entertaining additions is the chapter devoted to “The Celebrated Breach of Promise Case of Martinez v. Del Valle,” in which one of Mr. Joseph H. Choate’s most subtle cross-examinations is given at length, with explanatory annotations. This case is placed first among the examples of celebrated cross-examinations because of these annotations. They are intended to guide the student and to indicate to him some of the methods that are used by great crossexaminers, in order that he may have a clearer understanding of the methods used in the cross-examinations in the chapters that follow.

Extracts from the cross-examination of Guiteau, President Garfield’s assassin, conducted by Mr. John K. Porter, comprise another new chapter.

In the place of Mr. Choate’s cross-examination of Russell Sage in the third trial (extracts of which were given in the first edition), the far more instructive and amusing cross-examination that took place in the second trial has been substituted.

Whatever in the first edition was merely amusing, or, if instructive, was somewhat obscure, has been omitted; so that quite one-half the present edition is entirely new matter, and of a more serious character.

One important feature of the book is the fact that the cases and illustrations are all real, and many of them heretofore almost unknown to the profession. They have not been intentionally misrepresented or exaggerated.

This new edition of my book is submitted with the hope that my readers may take as much pleasure in its perusal as I have done in the researches necessary to its preparation.

Bar Harbor, Maine,

September 1, 1904.

PART I. THE PRINCIPLES OF CROSS-EXAMINATION

CHAPTER I. INTRODUCTORY

“The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination.”

This is the conclusion arrived at by one of England’s greatest advocates at the close of a long and eventful career at the Bar. It was written some fifty years ago and at a time when oratory in public trials was at its height. It is even more true at the present time, when what was once commonly reputed a “great speech” is seldom heard in our courts, — because the modern methods of practising our profession have had a tendency to discourage court oratory and the development of orators. The old-fashioned orators who were wont to “grasp the thunderbolt” are now less in favor than formerly. With our modern jurymen the arts of oratory, — “law-papers on fire,” as Lord Brougham’s speeches used to be called, — though still enjoyed as impassioned literary efforts, have become almost useless as persuasive arguments or as a “summing up” as they are now called.

Modern juries, especially in large cities, are composed of practical business men accustomed to think for themselves, experienced in the ways of life, capable of forming estimates and making nice distinctions, unmoved by the passions and prejudices to which court oratory is nearly always directed. Nowadays, jurymen, as a rule, are wont to bestow upon testimony the most intelligent and painstaking attention, and have a keen scent for truth. It is not intended to maintain that juries are no longer human, or that in certain cases they do not still go widely astray, led on by their prejudices if not by their passions. Nevertheless, in the vast majority of trials, the modern juryman, and especially the modern city juryman, — it is in our large cities that the greatest number of litigated cases is tried, — comes as near being the model arbiter of fact as the most optimistic champion of the institution of trial by jury could desire.

I am aware that many members of my profession still sneer at trial by jury. Such men, however, — when not among the unsuccessful and disgruntled, — will, with but few exceptions, be found to have had but little practice themselves in court, or else to belong to that ever growing class in our profession who have relinquished their court practice and are building up fortunes such as were never dreamed of in the legal profession a decade ago, by becoming what may be styled business lawyers — men who are learned in the law as a profession, but who through opportunity, combined with rare commercial ability, have come to apply their learning — especially their knowledge of corporate law — to great commercial enterprises, combinations, organizations, and reorganizations, and have thus come to practise law as a business.

To such as these a book of this nature can have but little interest. It is to those who by choice or chance are, or intend to become, engaged in that most laborious of all forms of legal business, the trial of cases in court, that the suggestions and experiences which follow are especially addressed.

It is often truly said that many of our best lawyers — I am speaking now especially of New York City — are withdrawing from court practice because the nature of the litigation is changing. To such an extent is this change taking place in some localities that the more important commercial cases rarely reach a court decision. Our merchants prefer to compromise their difficulties, or to write off their losses, rather than enter into litigations that must remain dormant in the courts for upward of three years awaiting their turn for a hearing on the overcrowded court calendars. And yet fully six thousand cases of one kind or another are tried or disposed of yearly in the Borough of Manhattan alone.

This congestion is not wholly due to lack of judges, or that they are not capable and industrious men; but is largely, it seems to me, the fault of the system in vogue in all our American courts of allowing any lawyer, duly enrolled as a member of the Bar, to practise in the highest courts. In the United States we recognize no distinction between barrister and solicitor; we are all barristers and solicitors by turn. One has but to frequent the courts to become convinced that, so long as the ten thousand members at the New York County Bar all avail themselves of their privilege to appear in court and try their own clients’ cases, the great majority of the trials will be poorly conducted, and much valuable time wasted.

The conduct of a case in court is a peculiar art for which many men, however learned in the law, are not fitted; and where a lawyer has but one or even a dozen experiences in court in each year, he can never become a competent trial lawyer. I am not addressing myself to clients, who often assume that, because we are duly qualified as lawyers, we are therefore competent to try their cases; I am speaking in behalf of our courts, against the congestion of the calendars, and the consequent crowding out of weighty commercial litigations.

One experienced in the trial of causes will not require, at the utmost, more than a quarter of the time taken by the most learned inexperienced lawyer in developing his facts. His case will be thoroughly prepared and understood before the trial begins. His points of law and issues of fact will be clearly defined and presented to the court and jury in the fewest possible words. He will in this way avoid many of the erroneous rulings on questions of law and evidence which are now upsetting so many verdicts on appeal. He will not only complete his trial in shorter time, but he will be likely to bring about an equitable verdict in the case which may not be appealed from at all, or, if appealed, will be sustained by a higher court, instead of being sent back for a retrial and the consequent consumption of the time of another judge and jury in doing the work all over again.[19]

These facts are being more and more appreciated each year, and in our local courts there is already an ever increasing coterie of trial lawyers, who are devoting the principal part of their time to court practice.

A few lawyers have gone so far as to refuse direct communication with clients excepting as they come represented by their own attorneys. It is pleasing to note that some of our leading advocates who, having been called away from large and active law practice to enter the government service, have expressed their intention, when they resume the practice of the law, to refuse all cases where clients are not already represented by competent attorneys, recognizing, at least in their own practice, the English distinction between the barrister and solicitor. We are thus beginning to appreciate in this country what the English courts have so long recognized: that the only way to insure speedy and intelligently conducted litigations is to inaugurate a custom of confining court practice to a comparatively limited number of trained trial lawyers.

The distinction between general practitioners and specialists is already established in the medical profession and largely accepted by the public. Who would think nowadays of submitting himself to a serious operation at the hands of his family physician, instead of calling in an experienced surgeon to handle the knife? And yet the family physician may have once been competent to play the part of surgeon, and doubtless has had, years ago, his quota of hospital experience. But he so infrequently enters the domain of surgery that he shrinks from undertaking it, except under circumstances where there is no alternative. There should be a similar distinction in the legal profession. The family lawyer may have once been competent to conduct the litigation; but he is out of practice — he is not “in training” for the competition.

There is no short cut, no royal road to proficiency, in the art of advocacy. It is experience, and one might almost say experience alone, that brings success. I am not speaking of that small minority of men in all walks of life who have been touched by the magic wand of genius, but of men of average endowments and even special aptitude for the calling of advocacy; with them it is a race of experience. The experienced advocate can look back upon those less advanced in years or experience, and rest content in the thought that they are just so many cases behind him; that if he keeps on, with equal opportunities in court, they can never overtake him. Some day the public will recognize this fact. But at present, what does the ordinary litigant know of the advantages of having counsel to conduct his case who is “at home” in the court room, and perhaps even acquainted with the very panel of jurors before whom his case is to be heard, through having already tried one or more cases for other clients before the same men? How little can the ordinary business man realize the value to himself of having a lawyer who understands the habits of thought and of looking at evidence — the bent of mind — of the very judge who is to preside at the trial of his case. Not that our judges are not eminently fair-minded in the conduct of trials; but they are men for all that, oftentimes very human men; and the trial lawyer who knows his judge, starts with an advantage that the inexperienced practitioner little appreciates. How much, too, does experience count in the selection of the jury itself — one of the “fine arts” of the advocate! These are but a few of the many similar advantages one might enumerate, were they not apart from the subject we are now concerned with — the skill of the advocate in conducting the trial itself, once the jury has been chosen.

When the public realizes that a good trial lawyer is the outcome, one might say of generations of witnesses, when clients fully appreciate the dangers they run in intrusting their litigations to so-called “office lawyers” with little or no experience in court, they will insist upon their briefs being intrusted to those who make a specialty of court practice, advised and assisted, if you will, by their own private attorneys. One of the chief disadvantages of our present system will be suddenly swept away; the court calendars will be cleared by speedily conducted trials; issues will be tried within a reasonable time after they are framed; the commercial cases, now disadvantageously settled out of court or abandoned altogether, will return to our courts to the satisfaction both of the legal profession and of the business community at large; causes will be more skilfully tried — the art of cross-examination more thoroughly understood.

CHAPTER II. THE MANNER OF CROSS-EXAMINATION

It needs but the simple statement of the nature of cross-examination to demonstrate its indispensable character in all trials of questions of fact. No cause reaches the stage of litigation unless there are two sides to it. If the witnesses on one side deny or qualify the statements made by those on the other, which side is telling the truth? Not necessarily which side is offering perjured testimony, — there is far less intentional perjury in the courts than the inexperienced would believe, — but which side is honestly mistaken? — for, on the other hand, evidence itself is far less trustworthy than the public usually realizes. The opinions of which side are warped by prejudice or blinded by ignorance? Which side has had the power or opportunity of correct observation? How shall we tell, how make it apparent to a jury of disinterested men who are to decide between the litigants? Obviously, by the means of cross-examination.

If all witnesses had the honesty and intelligence to come forward and scrupulously follow the letter as well as the spirit of the oath, “to tell the truth, the whole truth, and nothing but the truth,” and if all advocates on either side had the necessary experience, combined with honesty and intelligence, and were similarly sworn to develop the whole truth and nothing but the truth, of course there would be no occasion for cross-examination, and the occupation of the cross-examiner would be gone. But as yet no substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions.

The system is as old as the history of nations. Indeed, to this day, the account given by Plato of Socrates’s cross-examination of his accuser, Miletus, while defending himself against the capital charge of corrupting the youth of Athens, may be quoted as a masterpiece in the art of cross-questioning.

Cross-examination is generally considered to be the most difficult branch of the multifarious duties of the advocate. Success in the art, as some one has said, comes more often to the happy possessor of a genius for it. Great lawyers have often failed lamentably in it, while marvellous success has crowned the efforts of those who might otherwise have been regarded as of a mediocre grade in the profession. Yet personal experience and the emulation of others trained in the art, are the surest means of obtaining proficiency in this all-important prerequisite of a competent trial lawyer.

It requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge of their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and, above all, the instinct to discover the weak point in the witness under examination.

One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances. It involves all shades and complexions of human morals, human passions, and human intelligence. It is a mental duel between counsel and witness.

In discussing the methods to employ when cross-examining a witness, let us imagine ourselves at work in the trial of a cause, and at the close of the direct examination of a witness called by our adversary. The first inquiry would naturally be, Has the witness testified to anything that is material against us? Has his testimony injured our side of the case? Has he made an impression with the jury against us? Is it necessary for us to cross-examine him at all?

Before dismissing a witness, however, the possibility of being able to elicit some new facts in our own favor should be taken into consideration. If the witness is apparently truthful and candid, this can be readily done by asking plain, straightforward questions. If, however, there is any reason to doubt the willingness of the witness to help develop the truth, it may be necessary to proceed with more caution, and possibly to put the witness in a position where it will appear to the jury that he could tell a good deal if he wanted to, and then leave him. The jury will thus draw the inference that, had he spoken, it would have been in our favor.

But suppose the witness has testified to material facts against us, and it becomes our duty to break the force of his testimony, or abandon all hope of a jury verdict. How shall we begin? How shall we tell whether the witness has made an honest mistake, or has committed perjury? The methods in his cross-examination in the two instances would naturally be very different. There is a marked distinction between discrediting the testimony and discrediting the witness. It is largely a matter of instinct on the part of the examiner. Some people call it the language of the eye, or the tone of the voice, or the countenance of the witness, or his manner of testifying, or all combined, that betrays the wilful perjurer. It is difficult to say exactly what it is, excepting that constant practice seems to enable a trial lawyer to form a fairly accurate judgment on this point. A skillful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary. Every expression of his face, especially his mouth, even every movement of his hands, his manner of expressing himself, his whole bearing — all help the examiner to arrive at an accurate estimate of his integrity.

Let us assume, then, that we have been correct in our judgment of this particular witness, and that he is trying to describe honestly the occurrences to which he has testified, but has fallen into a serious mistake, through ignorance, blunder, or what not, which must be exposed to the minds of the jury. How shall we go about it? This brings us at once to the first important factor in our discussion, the manner of the cross-examiner.

It is absurd to suppose that any witness who has sworn positively to a certain set of facts, even if he has inadvertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake. People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their own powers of observation. They come to court, when summoned as witnesses, prepared to tell what they think they know; and in the beginning they resent an attack upon their story as they would one upon their integrity.

If the cross-examiner allows the witness to see, by his manner toward him at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once. If, on the other hand, the counsel’s manner is courteous and conciliatory, the witness will soon lose the fear all witnesses have of the cross-examiner, and can almost imperceptibly be induced to enter into a discussion of his testimony in a fairminded spirit, which, if the cross-examiner is clever, will soon disclose the weak points in the testimony. The sympathies of the jury are invariably on the side of the witness, and they are quick to resent any discourtesy toward him. They are willing to admit his mistakes, if you can make them apparent, but are slow to believe him guilty of perjury. Alas, how often this is lost sight of in our daily court experiences! One is constantly brought face to face with lawyers who act as if they thought that every one who testifies against their side of the case is committing willful perjury. No wonder they accomplish so little with their CROSS-examination! By their shouting, brow-beating style they often confuse the wits of the witness, it is true; but they fail to discredit him with the jury. On the contrary, they elicit sympathy for the witness they are attacking, and little realize that their “vigorous cross-examination,” at the end of which they sit down with evident self-satisfaction, has only served to close effectually the mind of at least one fairminded juryman against their side of the case, and as likely as not it has brought to light some important fact favorable to the other side which had been overlooked in the examination-in-chief.

There is a story told of Reverdy Johnson, who once, in the trial of a case, twitted a brother lawyer with feebleness of memory, and received the prompt retort, “Yes, Mr. Johnson; but you will please remember that, unlike the lion in the play, I have something more to do than roar.”

The only lawyer I ever heard employ this roaring method successfully was Benjamin F. Butler. With him politeness, or even humanity, was out of the question. And it has been said of him that “concealment and equivocation were scarcely possible to a witness under the operation of his methods.” But Butler had a wonderful personality. He was aggressive and even pugnacious, but picturesque withal — witnesses were afraid of him. Butler was popular with the masses; he usually had the numerous “hangers-on” in the court room on his side of the case from the start, and each little point he would make with a witness met with their ready and audible approval. This greatly increased the embarrassment of the witness and gave Butler a decided advantage. It must be remembered also that Butler had a contempt for scruple which would hardly stand him in good stead at the present time. Once he was cross questioning a witness in his characteristic manner. The judge interrupted to remind him that the witness was a Harvard professor. “I know it, your Honor,” replied Butler; “we hanged one of them the other day.”[20]

On the other hand, it has been said of Rufus Choate, whose art and graceful qualities of mind certainly entitle him to the foremost rank among American advocates, that in the cross-examination of witnesses, “He never aroused opposition on the part of the witness by attacking him, but disarmed him by the quiet and courteous manner in which he pursued his examination. He was quite sure, before giving him up, to expose the weak parts of his testimony or the bias, if any, which detracted from the confidence to be given it.”[21] [One of Choate’s bon mots was that a lawyer’s vacation consisted of the space between the question put to a witness and his answer.”]

Judah P. Benjamin, “the eminent lawyer of two continents,” used to cross-examine with his eyes. “No witness could look into Benjamin’s black, piercing eyes and maintain a lie.”

Among the English barristers, Sir James Scarlett, Lord Abinger, had the reputation, as a cross-examiner, of having outstripped all advocates who, up to that time, had appeared at the British Bar. “The gentlemanly ease, the polished courtesy, and the Christian urbanity and affection, with which he proceeded to the task did infinite mischief to the testimony of witnesses who were striving to deceive, or upon whom he found it expedient to fasten a suspicion.”

A good advocate should be a good actor. The most cautious cross-examiner will often elicit a damaging answer. Now is the time for the greatest self-control. If you show by your face how the answer hurt, you may lose your case by that one point alone. How often one sees the cross-examiner fairly staggered by such an answer. He pauses, perhaps blushes, and after he has allowed the answer to have its full effect, finally regains his self-possession, but seldom his control of the witness. With the really experienced trial lawyer, such answers, instead of appearing to surprise or disconcert him, will seem to come as a matter of course, and will fall perfectly flat. He will proceed with the next question as if nothing had happened, or even perhaps give the witness an incredulous smile, as if to say, “Who do you suppose would believe that for a minute?”

An anecdote apropos of this point is told of Rufus Choate. “A witness for his antagonist let fall, with no particular emphasis, a statement of a most important fact from which he saw that inferences greatly damaging to his client’s case might be drawn if skilfully used. He suffered the witness to go through his statement and then, as if he saw in it something of great value to himself, requested him to repeat it carefully that he might take it down correctly. He as carefully avoided cross-examining the witness, and in his argument made not the least allusion to his testimony. When the opposing counsel, in his close, came to that part of his case in his argument, he was so impressed with the idea that Mr. Choate had discovered that there was something in that testimony which made in his favor, although he could not see how, that he contented himself with merely remarking that though Mr. Choate had seemed to think that the testimony bore in favor of his client, it seemed to him that it went to sustain the opposite side, and then went on with the other parts of his case.”[22]

It is the love of combat which every man possesses that fastens the attention of the jury upon the progress of the trial. The counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him; who avoids delaying constantly the progress of the trial by innumerable objections and exceptions to perhaps incompetent but harmless evidence; who seems to know what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all occasions — he it is who creates an atmosphere in favor of the side which he represents, a powerful though unconscious influence with the jury in arriving at their verdict. Even if, owing to the weight of testimony, the verdict is against him, yet the amount will be far less than the client had schooled himself to expect.

On the other hand, the lawyer who wearies the court and the jury with endless and pointless cross-examinations; who is constantly losing his temper and showing his teeth to the witnesses; who wears a sour, anxious expression; who possesses a monotonous, rasping, penetrating voice; who presents a slovenly, unkempt personal appearance; who is prone to take unfair advantage of witness or counsel, and seems determined to win at all hazards — soon prejudices a jury against himself and the client he represents, entirely irrespective of the sworn testimony in the case.

The evidence often seems to be going all one way, when in reality it is not so at all. The cleverness of the cross-examiner has a great deal to do with this; he can often create an atmosphere which will obscure much evidence that would otherwise tell against him. This is part of the “generalship of a case” in its progress to the argument, which is of such vast consequence. There is eloquence displayed in the examination of witnesses as well as on the argument. “There is matter in manner.” I do not mean to advocate that exaggerated manner one often meets with, which divides the attention of your hearers between yourself and your question, which often diverts the attention of the jury from the point you are trying to make and centres it upon your own idiosyncrasies of manner and speech. As the man who was somewhat deaf and could not get near enough to Henry Clay in one of his finest efforts, exclaimed, “I didn’t hear a word he said, but, great Jehovah, didn’t he make the motions!”

The very intonations of voice and the expression of face of the cross-examiner can be made to produce a marked effect upon the jury and enable them to appreciate fully a point they might otherwise lose altogether.

“Once, when cross-examining a witness by the name of Sampson, who was sued for libel as editor of the Referee, Russell asked the witness a question which he did not answer. ‘Did you hear my question?’ said Russell in a low voice. ‘I did,’ said Sampson. ‘Did you understand it?’ asked Russell, in a still lower voice. ‘I did,’ said Sampson. ‘Then,’ said Russell, raising his voice to its highest pitch, and looking as if he would spring from his place and seize the witness by the throat, ‘why have you not answered it? Tell the jury why you have not answered it.’ A thrill of excitement ran through the court room. Sampson was overwhelmed, and he never pulled himself together again.”[23]

Speak distinctly yourself, and compel your witness to do so. Bring out your points so clearly that men of the most ordinary intelligence can understand them. Keep your audience — the jury — always interested and on the alert. Remember it is the minds of the jury you are addressing, even though your question is put to the witness. Suit the modulations of your voice to the subject under discussion. Rufus Choate’s voice would seem to take hold of the witness, to exercise a certain sway over him, and to silence the audience into a hush. He allowed his rich voice to exhibit in the examination of witnesses, much of its variety and all of its resonance. The contrast between his tone in examining and that of the counsel who followed him was very marked.

“Mr. Choate’s appeal to the jury began long before his final argument; it began when he first took his seat before them and looked into their eyes. He generally contrived to get his seat as near them as was convenient, if possible having his table close to the Bar, in front of their seats, and separated from them only by a narrow space for passage. There he sat, calm, contemplative; in the midst of occasional noise and confusion solemnly unruffled; always making some little headway either with the jury, the court, or the witness; never doing a single thing which could by possibility lose him favor, ever doing some little thing to win it; smiling benignantly upon the counsel when a good thing was said; smiling sympathizingly upon the jury when any juryman laughed or made an inquiry; wooing them all the time with his magnetic glances as a lover might woo his mistress; seeming to preside over the whole scene with an air of easy superiority; exercising from the very first moment an indefinable sway and influence upon the minds of all before and around him. His manner to the jury was that of a friend, a friend solicitous to help them through their tedious investigation; never that of an expert combatant, intent on victory, and looking upon them as only instruments for its attainment.”[24]

CHAPTER III. THE MATTER OF CROSS-EXAMINATION

If by experience we have learned the first lesson of our art, — to control our manner toward the witness even under the most trying circumstances, — it then becomes important that we should turn our attention to the matter of our cross-examination. By our manner toward him we may have in a measure disarmed him, or at least put him off his guard, while his memory and conscience are being ransacked by subtle and searching questions, the scope of which shall be hardly apparent to himself; but it is only with the matter of our cross-examination that we can hope to destroy him.

What shall be our first mode of attack? Shall we adopt the fatal method of those we see around us daily in the courts, and proceed to take the witness over the same story that he has already given our adversary, in the absurd hope that he is going to change it in the repetition, and not retell it with double effect upon the jury? Or shall we rather avoid carefully his original story, except in so far as is necessary to refer to it in order to point out its weak spots? Whatever we do, let us do it with quiet dignity, with absolute fairness to the witness; and let us frame our questions in such simple language that there can be no misunderstanding or confusion. Let us imagine ourselves in the jury box, so that we may see the evidence from their standpoint. We are not trying to make a reputation for ourselves with the audience as “smart” cross-examiners. We are thinking rather of our client and our employment by him to win the jury upon his side of the case. Let us also avoid asking questions recklessly, without any definite purpose. Unskillful questions are worse than none at all, and only tend to uphold rather than to destroy the witness.

All through the direct testimony of our imaginary witness, it will be remembered, we were watching his every movement and expression. Did we find an opening for our cross-examination? Did we detect the weak spot in his narrative? If so, let us waste no time, but go direct to the point. It may be that the witness’s situation in respect to the parties or the subject-matter of the suit should be disclosed to the jury, as one reason why his testimony has been shaded somewhat in favor of the side on which he testifies. It may be that he has a direct interest in the result of the litigation, or is to receive some indirect benefit therefrom. Or he may have some other tangible motive which he can gently be made to disclose. Perhaps the witness is only suffering from that partisanship, so fatal to fair evidence, of which oftentimes the witness himself is not conscious. It may even be that, if the jury only knew the scanty means the witness has had for obtaining a correct and certain knowledge of the very facts to which he has sworn so glibly, aided by the adroit questioning of the opposing counsel, this in itself would go far toward weakening the effect of his testimony. It may appear, on the other hand, that the witness had the best possible opportunity to observe the facts he speaks of, but had not the intelligence to observe these facts correctly. Two people may witness the same occurrence and yet take away with them an entirely different impression of it; but each, when called to the witness stand, may be willing to swear to that impression as a fact. Obviously, both accounts of the same transaction cannot be true; whose impressions were wrong? Which had the better opportunity to see? Which had the keener power of perception? All this we may very properly term the matter of our cross-examination.

It is one thing to have the opportunity of observation, or even the intelligence to observe correctly, but it is still another to be able to retain accurately, for any length of time, what we have once seen or heard, and what is perhaps more difficult still — to be able to describe it intelligibly. Many witnesses have seen one part of a transaction and heard about another part, and later on become confused in their own minds, or perhaps only in their modes of expression, as to what they have seen themselves and what they have heard from others. All witnesses are prone to exaggerate — to enlarge or minimize the facts to which they, take oath.

A very common type of witness, met with almost daily, is the man who, having witnessed some event years ago, suddenly finds that he is to be called as a court witness. He immediately attempts to recall his original impressions; and gradually, as he talks with the attorney who is to examine him, he amplifies his story with new details which he leads himself, or is led, to believe are recollections and which he finally swears to as facts. Many people seem to fear that an “I don’t know” answer will be attributed to ignorance on their part. Although perfectly honest in intention, they are apt, in consequence, to complete their story by recourse to their imagination. And few witnesses fail, at least in some part of their story, to entangle facts with their own beliefs and inferences.

All these considerations should readily suggest a line of questions, varying with each witness examined, that will, if closely followed, be likely to separate appearance from reality and to reduce exaggerations to their proper proportions. It must further be borne in mind that the jury should not merely see the mistake; they should be made to appreciate at the time why and whence it arose. It is fresher then and makes a more lasting effect than if left until the summing up, and then drawn to the attention of the jury.

The experienced examiner can usually tell, after a few simple questions, what line to pursue. Picture the scene in your own mind; closely inquire into the sources of the witness’s information, and draw your own conclusions as to how his mistake arose, and why he formed his erroneous impressions. Exhibit plainly your belief in his integrity and your desire to be fair with him, and try to beguile him into being candid with you. Then when the particular foible which has affected his testimony has once been discovered, he can easily be led to expose it to the jury. His mistakes should be drawn out often by inference rather than by direct question, because all witnesses have a dread of self-contradiction. If he sees the connection between your inquiries and his own story, he will draw upon his imagination for explanations, before you get the chance to point out to him the inconsistency between his later statement and his original one. It is often wise to break the effect of a witness’s story by putting questions to him that will acquaint the jury at once with the fact that there is another more probable story to be told later on, to disclose to them something of the defence, as it were. Avoid the mistake, so common among the inexperienced, of making much of trifling discrepancies. It has been aptly said that “juries have no respect for small triumphs over a witness’s self-possession or memory.” Allow the loquacious witness to talk on; he will be sure to involve himself in difficulties from which he can never extricate himself. Some witnesses prove altogether too much; encourage them and lead them by degrees into exaggerations that will conflict with the common sense of the jury. Under no circumstances put a false construction on the words of a witness; there are few faults in an advocate more fatal with a jury.

If, perchance, you obtain a really favorable answer, leave it and pass quietly to some other inquiry. The inexperienced examiner in all probability will repeat the question with the idea of impressing the admission upon his hearers, instead of reserving it for the summing up, and will attribute it to bad luck that his witness corrects his answer or modifies it in some way, so that the point is lost. He is indeed a poor judge of human nature who supposes that if he exults over his success during the cross-examination, he will not quickly put the witness on his guard to avoid all future favorable disclosures.

David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, “A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place he didn’t care.” This is something on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greatest blunders in cross-examination. Certainly no lawyer should ask a critical question unless he is sure of the answer.

Mr. Sergeant Ballantine, in his “Experiences,” quotes an instance in the trial of a prisoner on the charge of homicide, where a once famous English barrister had been induced by the urgency of an attorney, although against his own judgment, to ask a question on cross-examination, the answer to which convicted his client. Upon receiving the answer, he turned to the attorney who had advised him to ask it, and said, emphasizing every word, “Go home; cut your throat; and when you meet your client in hell, beg his pardon.”

It is well, sometimes, in a case where you believe that the witness is reluctant to develop the whole truth, so to put questions that the answers you know will be elicited may come by way of a surprise and in the light of improbability to the jury. I remember a recent incident, illustrative of this point, which occurred in a suit brought to recover the insurance on a large warehouse full of goods that had been burnt to the ground. The insurance companies had been unable to find any stock-book which would show the amount of goods in stock at the time of the fire. One of the witnesses to the fire happened to be the plaintiff’s bookkeeper, who on the direct examination testified to all the details of the fire, but nothing about the books. The cross-examination was confined to these few pointed questions.

“I suppose you had an iron safe in your office, in which you kept your books of account?” “Yes, sir.” — “Did that burn up?” “Oh, no.” — “Were you present when it was opened after the fire?” “Yes, sir.” — “Then won’t you be good enough to hand me the stock-book that we may show the jury exactly what stock you had on hand at the time of the fire on which you claim loss? (This was the point of the case and the jury were not prepared for the answer which followed.) “I haven’t it, sir.” — “What, haven’t the stock-book? You don’t mean you have lost it?” “It wasn’t in the safe, sir.” — “Wasn’t that the proper place for it?” “Yes, sir.” — “How was it that the book wasn’t there?” “It had evidently been left out the night before the fire by mistake.” Some of the jury at once drew the inference that the all-important stock-book was being suppressed, and refused to agree with their fellows against the insurance companies.

The average mind is much wiser than many suppose. Questions can be put to a witness under cross-examination, in argumentative form, often with far greater effect upon the minds of the jury than if the same line of reasoning were reserved for the summing up. The juryman sees the point for himself, as if it were his own discovery, and clings to it all the more tenaciously. During the cross-examination of Henry Ward Beecher, in the celebrated Tilton-Beecher case, and after Mr. Beecher had denied his alleged intimacy with Mr. Tilton’s wife, Judge Fullerton read a passage from one of Mr. Beecher’s sermons to the effect that if a person commits a great sin, the exposure of which would cause misery to others, such a person would not be justified in confessing it, merely to relieve his own conscience. Fullerton then looked straight into Mr. Beecher’s eyes and said, “Do you still consider that sound doctrine?” Mr. Beecher replied, “I do.” The inference a juryman might draw from this question and answer would constitute a subtle argument upon that branch of the case.

The entire effect of the testimony of an adverse witness can sometimes be destroyed by a pleasant little passage-at-arms in which he is finally held up to ridicule before the jury and all that he has previously said against you disappears in the laugh that accompanies him from the witness box. In a recent Metropolitan Street Railway case a witness who had been badgered rather persistently on cross-examination, finally straightened himself up in the witness chair and said pertly, “I have not come here asking you to play with me. Do you take me for Anna Held?”[25] “I was not thinking of Anna Held,” replied the counsel quietly; “supposing you try Ananias!” The witness was enraged, the jury laughed, and the lawyer, who had really made nothing out of the witness up to this time, sat down.

These little triumphs are, however, by no means always one-sided. Often, if the counsel gives him an opening, a clever witness will counter on him in a most humiliating fashion, certain to meet with the hearty approval of jury and audience. At the Worcester Assizes, in England, a case was being tried which involved the soundness of a horse, and a clergyman had been called as a witness who succeeded only in giving a rather confused account of the transaction. A blustering counsel on the other side, after many attempts to get at the facts upon cross-examination, blurted out, “Pray, sir, do you know the difference between a horse and a cow?” “I acknowledge my ignorance,” replied the clergyman; “I hardly do know the difference between a horse and a cow, or between a bull and a bully — only a bull, I am told, has horns, and a bully (bowing respectfully to the counsel), luckily for me, has none.”[26] Reference is made in a subsequent chapter to the cross-examination of Dr. —– in the Carlyle Harris case, where is related at length a striking example of success in this method of examination.

It may not be uninteresting to record in this connection one or two cases illustrative of matter that is valuable in cross-examination in personal damage suits where the sole object of counsel is to reduce the amount of the jury’s verdict, and to puncture the pitiful tale of suffering told by the plaintiff in such cases.

A New York commission merchant, named Metts, sixty-six years of age, was riding in a Columbus Avenue open car. As the car neared the curve at Fifty-third Street and Seventh Avenue, and while he was in the act of closing an open window in the front of the car at the request of an old lady passenger, the car gave a sudden, violent lurch, and he was thrown into the street, receiving injuries from which, at the time of the trial, he had suffered for three years.

Counsel for the plaintiff went into his client’s sufferings in great detail. Plaintiff had had concussion of the brain, loss of memory, bladder difficulties, a broken leg, nervous prostration, constant pain in his back. And the attempt to alleviate the pain attendant upon all these difficulties was gone into with great detail. To cap all, the attending physician had testified that the reasonable value of his professional services was the modest sum of $2500.

Counsel for the railroad, before cross-examining, had made a critical examination of the doctor’s face and bearing in the witness chair, and had concluded that, if pleasantly handled, he could be made to testify pretty nearly to the truth, whatever it might be. He concluded to spar for an opening, and it came within the first halfdozen questions: —

Counsel: “What medical name, doctor, would you give to the plaintiff’s present ailment?”

Doctor: “He has what is known as ‘traumatic microsis.’ ”

Counsel: “Microsis, doctor? That means, does it not, the habit, or disease as you may call it, of making much of ailments that an ordinary healthy man would pass by as of no account?”

Doctor: “That is right, sir.”

Counsel (smiling): “I hope you haven’t got this disease, doctor, have you?”

Doctor: “Not that I am aware of, sir.”

Counsel: “Then we ought to be able to get a very fair statement from you of this man’s troubles, ought we not?”

Doctor: “I hope so, sir.”

The opening had been found; witness was already flattered into agreeing with all suggestions, and warned against exaggeration.

Counsel: “Let us take up the bladder trouble first. Do not practically all men who have reached the age of sixty-six have troubles of one kind or another that result in more or less irritation of the bladder?”

Doctor: “Yes, that is very common with old men.”

Counsel: “You said Mr. Metts was deaf in one ear. I noticed that he seemed to hear the questions asked him in court particularly well; did you notice it?”

Doctor: “I did.”

Counsel: “At the age of sixty-six are not the majority of men gradually failing in their hearing?”

Doctor: “Yes, sir, frequently.”

Counsel: “Frankly, doctor, don’t you think this man hears remarkably well for his age, leaving out the deaf ear altogether?”

Doctor: “I think he does.”

Counsel (keeping the ball rolling): “I don’t think you have even the first symptoms of this ‘traumatic microsis,’ Doctor.”

Doctor (pleased): “I haven’t got it at all.”

Counsel: “You said Mr. Metts had had concussion of the brain. Has not every boy who has fallen over backward, when skating on the ice, and struck his head, also had what you physicians would call ‘concussion of the brain’?”

Doctor: “Yes, sir.”

Counsel: “But I understood you to say that this plaintiff had had, in addition, haemorrhages of the brain. Do you mean to tell us that he could have had haemorrhages of the brain and be alive to-day?”

Doctor: “They were microscopic haemorrhages.”

Counsel: “That is to say, one would have to take a microscope to find them?”

Doctor: “That is right.”

Counsel: “You do not mean us to understand, doctor, that you have not cured him of these microscopic haemorrhages?”

Doctor: “I have cured him; that is right.”

Counsel: “You certainly were competent to set his broken leg or you wouldn’t have attempted it; did you get a good union?”

Doctor: “Yes, he has got a good, strong, healthy leg.”

Counsel having elicited, by the “smiling method,” all the required admissions, suddenly changed his whole bearing toward the witness, and continued pointedly:

Counsel: “And you said that $2500 would be a fair and reasonable charge for your services. It is three years since Mr. Metts was injured. Have you sent him no bill?”

Doctor: “Yes, sir, I have.”

Counsel: “Let me see it. (Turning to plaintiff’s Counsel.) Will either of you let me have the bill?”

Doctor: “I haven’t it, sir.”

Counsel (astonished): “What was the amount of it?”

Doctor: “$1000.”

Counsel (savagely): “Why do you charge the railroad company two and a half times as much as you charge the patient himself?”

Doctor (embarrassed at this sudden change on part of counsel): “You asked me what my services were worth.”

Counsel: “Didn’t you charge your patient the full worth of your services?”

Doctor (no answer).

Counsel (quickly): “How much have you been paid on your bill — on your oath?”

Doctor: “He paid me $100 at one time, that is, two years ago; and at two different times since he has paid me $30.”

Counsel: “And he is a rich commission merchant downtown!” (And with something between a sneer and a laugh counsel sat down.)

An amusing incident, leading to the exposure of a manifest fraud, occurred recently in another of the many damage suits brought against the Metropolitan Street Railway and growing out of a collision between two of the company’s electric cars.

The plaintiff, a laboring man, had been thrown to the street pavement from the platform of the car by the force of the collision, and had dislocated his shoulder. He had testified in his own behalf that he had been permanently injured in so far as he had not been able to follow his usual employment for the reason that he could not raise his arm above a point parallel with his shoulder. Upon cross-examination the attorney for the railroad asked the witness a few sympathetic questions about his sufferings, and upon getting on a friendly basis with him asked him “to be good enough to show the jury the extreme limit to which he could raise his arm since the accident.” The plaintiff slowly and with considerable difficulty raised his arm to the parallel of his shoulder. “Now, using the same arm, show the jury how high you could get it up before the accident,” quietly continued the attorney; whereupon the witness extended his arm to its full height above his head, amid peals of laughter from the court and jury.

In a case of murder, to which the defence of insanity was set up, a medical witness called on behalf of the accused swore that in his opinion the accused, at the time he killed the deceased, was affected with a homicidal mania, and urged to the act by an irresistible impulse. The judge, not satisfied with this, first put the witness some questions on other subjects, and then asked, “Do you think the accused would have acted as he did if a policeman had been present?” to which the witness at once answered in the negative. Thereupon the judge remarked, “Your definition of an irresistible impulse must then be an impulse irresistible at all times except when a policeman is present.”

CHAPTER IV. CROSS-EXAMINATION OF THE PERJURED WITNESS

In the preceding chapters it was attempted to offer a few suggestions, gathered from experience, for the proper handling of an honest witness who, through ignorance or partisanship, and more or less unintentionally, had testified to a mistaken state of facts injurious to our side of the litigation. In the present chapter it is proposed to discuss the far more difficult task of exposing, by the arts of cross-examination, the intentional Fraud, the perjured witness. Here it is that the greatest ingenuity of the trial lawyer is called into play; here rules help but little as compared with years of actual experience. What can be conceived more difficult in advocacy than the task of proving a witness, whom you may neither have seen nor heard of before he gives his testimony against you, to be a willful perjurer, as it were out of his own mouth?

It seldom happens that a witness’s entire testimony is false from beginning to end. Perhaps the greater part of it is true, and only the crucial part — the point, however, on which the whole case may turn — is willfully false. If, at the end of — his direct testimony, we conclude that the witness we have to cross-examine — to continue the imaginary trial we were conducting in the previous chapter — comes under this class, what means are we to employ to expose him to the jury?

Let us first be certain we are right in our estimate of him — that he intends perjury. Embarrassment is one of the emblems of perjury, but by no means always so. The novelty and difficulty of the situation — being called upon to testify before a room full of people, with lawyers on all sides ready to ridicule or abuse — often occasions embarrassment in witnesses of the highest integrity. Then again some people are constitutionally nervous and could be nothing else when testifying in open court. Let us be sure our witness is not of this type before we subject him to the particular form of torture we have in store for the perjurer.

Witnesses of a low grade of intelligence, when they testify falsely, usually display it in various ways: in the voice, in a certain vacant expression of the eyes, in a nervous twisting about in the witness chair, in an apparent effort to recall to mind the exact wording of their story, and especially in the use of language not suited to their station in life. On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language.

If, however, the manner of the witness and the wording of his testimony bear all the earmarks of fabrication, it is often useful, as your first question, to ask him to repeat his story. Usually he will repeat it in almost identically the same words as before, showing he has learned it by heart. Of course it is possible, though not probable, that he has done this and still is telling the truth. Try him by taking him to the middle of his story, and from there jump him quickly to the beginning and then to the end of it. If he is speaking by rote rather than from recollection, he will be sure to succumb to this method. He has no facts with which to associate the wording of his story; he can only call it to mind as a whole, and not in detachments. Draw his attention to other facts entirely disassociated with the main story as told by himself. He will be entirely unprepared for these new inquiries, and will draw upon his imagination for answers. Distract his thoughts again to some new part of his main story and then suddenly, when his mind is upon another subject, return to those considerations to which you had first called his attention, and ask him the same questions a second time. He will again fall back upon his imagination and very likely will give a different answer from the first — and you have him in the net. He cannot invent answers as fast as you can invent questions, and at the same time remember his previous inventions correctly; he will not keep his answers all consistent with one another. He will soon become confused and, from that time on, will be at your mercy. Let him go as soon as you have made it apparent that he is not mistaken, but lying.

An amusing account is given in the Green Bag for November, 1891, of one of Jeremiah Mason’s cross-examinations of such a witness. “The witness had previously testified to having heard Mason’s client make a certain statement, and it was upon the evidence of that statement that the adversary’s case was based. Mr. Mason led the witness round to his statement, and again it was repeated verbatim. Then, without warning, he walked to the stand, and pointing straight at the witness said, in his high, impassioned voice, ‘Let’s see that paper you’ve got in your waistcoat pocket!’ Taken completely by surprise, the witness mechanically drew a paper from the pocket indicated, and handed it to Mr. Mason. The lawyer slowly read the exact words of the witness in regard to the statement, and called attention to the fact that they were in the handwriting of the lawyer on the other side.

“ ‘Mr. Mason, how under the sun did you know that paper was there?’ asked a brother lawyer. ‘Well,’ replied Mr. Mason, ‘I thought he gave that part of his testimony just as if he’d heard it, and I noticed every time he repeated it he put his hand to his waistcoat pocket, and then let it fall again when he got through.’ ”

Daniel Webster considered Mason the greatest lawyer that ever practised at the New England Bar. He said of him, “I would rather, after my own experience, meet all the lawyers I have ever known combined in a case, than to meet him alone and single-handed.” Mason was always reputed to have possessed to a marked degree “the instinct for the weak point” in the witness he was cross-examining.

If perjured testimony in our courts were confined to the ignorant classes, the work of cross-examining them would be a comparatively simple matter, but unfortunately for the cause of truth and justice this is far from the case. Perjury is decidedly on the increase, and at the present time scarcely a trial is conducted in which it does not appear in a more or less flagrant form. Nothing in the trial of a cause is so difficult as to expose the perjury of a witness whose intelligence enables him to hide his lack of scruple. There are various methods of attempting it, but no uniform rule can be laid down as to the proper manner to be displayed toward such a witness. It all depends upon the individual character you have to unmask. In a large majority of cases the chance of success will be greatly increased by not allowing the witness to see that you suspect him, before you have led him to commit himself as to various matters with which you have reason to believe you can confront him later on.

Two famous cross-examiners at the Irish Bar were Sergeant Sullivan, afterwards Master of the Rolls in Ireland, and Sergeant Armstrong. Barry O’Brien, in his “Life of Lord Russell,” describes their methods. “Sullivan,” he says, “approached the witness quite in a friendly way, seemed to be an impartial inquirer seeking information, looked surprised at what the witness said, appeared even grateful for the additional light thrown on the case. ‘Ah, indeed! Well, as you have said so much, perhaps you can help us a little further. Well, really, my Lord, this is a very intelligent man.’ So playing the witness with caution and skill, drawing him stealthily on, keeping him completely in the dark about the real point of attack, the ‘little sergeant’ waited until the man was in the meshes, and then flew at him and shook him as a terrier would a rat.

“The ‘big Sergeant’ (Armstrong) had more humor and more power, but less dexterity and resource. His great weapon was ridicule. He laughed at the witness and made everybody else laugh. The witness got confused and lost his temper, and then Armstrong pounded him like a champion in the ring.”

In some cases it is wise to confine yourself to one or two salient points on which you feel confident you can get the witness to contradict himself out of his own mouth. It is seldom useful to press him on matters with which he is familiar. It is the safer course to question him on circumstances connected with his story, but to which he has not already testified and for which he would not be likely to prepare himself.

A simple but instructive example of cross-examination, conducted along these lines, is quoted from Judge J. W. Donovan’s “Tact in Court.” It is doubly interesting in that it occurred in Abraham Lincoln’s first defence at a murder trial.

“Grayson was charged with shooting Lockwood at a camp meeting, on the evening of August 9, 18—, and with running away from the scene of the killing, which was witnessed by Sovine. The proof was so strong that, even with an excellent previous character, Grayson came very near being lynched on two occasions soon after his indictment for murder.

“The mother of the accused, after failing to secure older counsel, finally engaged young Abraham Lincoln, as he was then called, and the trial came on to an early hearing. No objection was made to the jury, and no cross-examination of witnesses, save the last and only important one, who swore that he knew the parties, saw the shot fired by Grayson, saw him run away, and picked up the deceased, who died instantly.

“The evidence of guilt and identity was morally certain. The attendance was large, the interest intense. Grayson’s mother began to wonder why ‘Abraham remained silent so long and why he didn’t do something!’

The people finally rested. The tall lawyer (Lincoln) stood up and eyed the strong witness in silence, without books or notes, and slowly began his defence by these questions:

“Lincoln: ‘And you were with Lockwood just before and saw the shooting?’

“Witness: ‘Yes.’

“Lincoln: ‘And you stood very near to them?’

“Witness: ‘No, about twenty feet away.’

“Lincoln: ‘May it not have been ten feet?’

“Witness: ‘No, it was twenty feet or more.’

“Lincoln: ‘In the open field?’

“Witness: ‘No, in the timber.’

“Lincoln: ‘What kind of timber?’

“Witness: ‘Beech timber.’

“Lincoln: ‘Leaves on it are rather thick in August?’

“Witness: ‘Rather.’

“Lincoln: ‘And you think this pistol was the one used?’

“Witness: ‘It looks like it.’

“Lincoln: ‘You could see defendant shoot — see how the barrel hung, and all about it?’

“Witness: ‘Yes.’

“Lincoln: ‘How near was this to the meeting place?’

“Witness: ‘Three-quarters of a mile away.’

“Lincoln: ‘Where were the lights?’

“Witness: ‘Up by the minister’s stand.’

“Lincoln: ‘Three-quarters of a mile away?’

“Witness: ‘Yes, — I answered ye twistle.’

“Lincoln: ‘Did you not see a candle there, with Lockwood or Grayson?’

“Witness: ‘No! What would we want a candle for?’

“Lincoln: ‘How, then, did you see the shooting?’

“Witness: ‘By moonlight!’ (defiantly).

“Lincoln: ‘You saw this shooting at ten at night — in beech timber, three-quarters of a mile from the lights — saw the pistol barrel — saw the man fire — saw it twenty feet away — saw it all by moonlight? Saw it nearly a mile from the camp lights?’

“Witness: ‘Yes, I told you so before.’

“The interest was now so intense that men leaned forward to catch the smallest syllable. Then the lawyer drew out a blue-covered almanac from his side coat pocket — opened it slowly — offered it in evidence — showed it to the jury and the court — read from a page with careful deliberation that the moon on that night was unseen and only arose at one the next morning.

“Following this climax Mr. Lincoln moved the arrest of the perjured witness as the real murderer, saying: ‘Nothing but a motive to clear himself could have induced him to swear away so falsely the life of one who never did him harm!’ With such determined emphasis did Lincoln present his showing that the court ordered Sovine arrested, and under the strain of excitement he broke down and confessed to being the one who fired the fatal shot himself, but denied it was intentional.”

A difficult but extremely effective method of exposing a certain kind of perjurer is to lead him gradually to a point in his story, where — in his answer to the final question “Which?” — he will have to choose either one or the other of the only two explanations left to him, either of which would degrade if not entirely discredit him in the eyes of the jury.

The writer once heard the Hon. Joseph H. Choate make very telling use of this method of examination. A stock-broker was being sued by a married woman for the return of certain bonds and securities in the broker’s possession, which she alleged belonged to her. Her husband took the witness-stand and swore that he had deposited the securities with the stock-broker as collateral against his market speculations, but that they did not belong to him, and that he was acting for himself and not as agent for his wife, and had taken her securities unknown to her.

It was the contention of Mr. Choate that, even if the bonds belonged to the wife, she had either consented to her husband’s use of the bonds, or else was a partner with him in the transaction. Both of these contentions were denied under oath by the husband.

Mr. Choate: “When you ventured into the realm of speculations in Wall Street I presume you contemplated the possibility of the market going against you, did you not?”

Witness: “Well, no, Mr. Choate, I went into Wall Street to make money, not to lose it.”

Mr. Choate: “Quite so, sir; but you will admit, will you not, that sometimes the stock market goes contrary to expectations?”

Witness: “Oh, yes, I suppose it does.”

Mr. Choate: “You say the bonds were not your own property, but your wife’s?”

Witness: “Yes, sir.”

Mr. Choate: “And you say that she did not lend them to you for purposes of speculation, or even know you had possession of them?”

Witness: “Yes, sir.”

Mr. Choate: “You even admit that when you deposited the bonds with your broker as collateral against your stock speculations, you did not acquaint him with the fact that they were not your own property?”

Witness: “I did not mention whose property they were, sir.”

Mr. Choate (in his inimitable style): “Well, sir, in the event of the market going against you and your collateral being sold to meet your losses, whom did you intend to cheat, your broker or your wife?”

The witness could give no satisfactory answer, and for once a New York jury was found who were willing to give a verdict against the customer and in favor of a Wall Street broker.

In the great majority of cases, however, the most skilful efforts of the cross-examiner will fail to lead the witness into such “traps” as these. If you have accomplished one such coup, be content with the point you have made; do not try to make another with the same witness; sit down and let the witness leave the stand.

But let us suppose you are examining a witness with whom no such climax is possible. Here you will require infinite patience and industry. Try to show that his story is inconsistent with itself, or with other known facts in the case, or with the ordinary experience of mankind. There is a wonderful power in persistence. If you fail in one quarter, abandon it and try something else. There is surely a weak spot somewhere, if the story is perjured. Frame your questions skilfully. Ask them as if you wanted a certain answer, when in reality you desire just the opposite one. “Hold your own temper while you lead the witness to lose his” is a Golden Rule on all such occasions. If you allow the witness a chance to give his reasons or explanations, you may be sure they will be damaging to you, not to him. If you can succeed in tiring out the witness or driving him to the point of sullenness, you have produced the effect of lying.

But it is not intended to advocate the practice of lengthy cross-examinations because the effect of them, unless the witness is broken down, is to lead the jury to exaggerate the importance of evidence given by a witness who requires so much cross-examination in the attempt to upset him. “During the Tichborne trial for perjury, a remarkable man named Luie was called to testify. He was a shrewd witness and told his tale with wonderful precision and apparent accuracy. That it was untrue there could hardly be a question, but that it could be proved untrue was extremely doubtful and an almost hopeless task. It was an improbable story, but still was not an absolutely impossible one. If true, however, the claimant was the veritable Roger Tichborne, or at least the probabilities would be so immensely in favor of that supposition that no jury would agree in finding that he was Arthur Orton. His manner of giving his evidence was perfect. After the trial one of the jurors was asked what he thought of Luie’s evidence, and if he ever attached any importance to his story. He replied that at the close of the evidence-in-chief he thought it so improbable that no credence could be given to it. But after Mr. Hawkins had been at him for a day and could not shake him, I began to think, if such a cross-examiner as that cannot touch him, there must be something in what he says, and I began to waver. I could not understand how it was that, if it was all lies, it did not break down under such able counsel.”[27]

The presiding judge, whose slightest word is weightier than the eloquence of counsel, will often interrupt an aimless and prolonged cross-examination with an abrupt, “Mr. —–, I think we are wasting time,” or “I shall not allow you to pursue that subject further,” or “I cannot see the object of this examination.” This is a setback from which only the most experienced advocate can readily recover. Before the judge spoke, the jury, perhaps, were already a little tired and inattentive and anxious to finish the case; they were just in the mood to agree with the remark of his Honor, and the “ATMOSPHERE of the case,” as I have always termed it, was fast becoming unfavorable to the delinquent attorney’s client. How important a part in the final outcome of every trial this atmosphere of the case usually plays! Many jurymen lose sight of the parties to the litigation — our clients — in their absorption over the conflict of wits going on between their respective lawyers.

It is in criminal prosecutions where local politics are involved, that the jury system is perhaps put to its severest test. The ordinary juryman is so apt to be blinded by his political prejudices that where the guilt or innocence of the prisoner at the Bar turns upon the question as to whether the prisoner did or did not perform some act, involving a supposed advantage to his political party, the jury is apt to be divided upon political lines.

About ten years ago, when a wave of political reform was sweeping over New York City, the Good Government Clubs caused the arrest of about fifty inspectors of election for violations of the election laws. These men were all brought up for trial in the Supreme Court criminal term, before Mr. Justice Barrett. The prisoners were to be defended by various leading trial lawyers, and everything depended upon the result of the first few cases tried. If these trials resulted in acquittals, it was anticipated that there would be acquittals all along the line; if the first offenders put on trial were convicted and sentenced to severe terms in prison, the great majority of the others would plead guilty, and few would escape.

At that time the county of New York was divided, for purposes of voting, into 1067 election districts, and on an average perhaps 250 votes were cast in each district. An inspector of one of the election districts was the first man called for trial. The charge against him was the failure to record correctly the vote cast in his district for the Republican candidate for alderman. In this particular election district there had been 167 ballots cast, and it was the duty of the inspectors to count them and return the result of their count to police headquarters.

At the trial twelve respectable citizens took the witness chair, one after another, and affirmed that they lived in the prisoner’s election district, and had all cast their ballots on election day for the Republican candidate. The official count for that district, signed by the prisoner, was then put in evidence, which read: Democratic votes, 167; Republican, 0. There were a number of witnesses called by the defence who were Democrats. The case began to take on a political aspect, which was likely to result in a divided jury and no conviction, since it had been shown that the prisoner had a most excellent reputation and had never been suspected of wrong-doing before. Finally the prisoner himself was sworn in his own behalf.

It was the attempt of the cross-examiner to leave the witness in such a position before the jury that no matter what their politics might be, they could not avoid convicting him. There were but five questions asked.

Counsel: “You have told us, sir, that you have a wife and seven children depending upon you for support. I presume your desire is not to be obliged to leave them; is it not?”

Prisoner: “Most assuredly, sir.”

Counsel: “Apart from that consideration I presume you have no particular desire to spend a term of years in Sing Sing prison?”

Prisoner: “Certainly not, sir.”

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 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.

In our American courts, as they are now constituted, I think I am safe in saying that in half the cases presented to a jury the evidence of one or more expert witnesses becomes a very important factor in a juror’s effort to arrive at a just verdict. The proper handling of these witnesses, therefore, has become of greater importance at the present time than ever before. It is useless for our law writers to dismiss the subject of expert testimony, as is so often the case, by quoting some authority like Lord Campbell, who gives it as his final judgment, after the experience of a lifetime at the bar and on the bench, that “skilled witnesses come with such a bias on their minds to support the cause in which they are embarked, that hardly any weight should be given to their evidence;” or, as Taylor even more emphatically puts it in the last edition of his treatise on the “Law of Evidence,” “Expert witnesses become so warped in their judgment by regarding the subject in one point of view, that, even when conscientiously disposed, they are incapable of expressing a candid opinion.” The fact still remains that the testimony of expert witnesses must be reckoned with in about sixty per cent of our more important litigated business, and the only possible way to enlighten our jurors and enable them to arrive at a just estimate of such testimony is by a thorough understanding of the art of cross-examination of such witnesses.

Although the cross-examination of various experts, whether medical, handwriting, real estate, or other specialists, is a subject of growing importance, yet it is not intended in this chapter to do more than to make some suggestions and to give a number of illustrations of certain methods that have been successfully adopted 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 focused 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?”

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.

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 Brooks, 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. Brooks 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 Naome.”

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!”[28]

The alleged compromising letters were never read to the jury.

It will not be uninteresting, by way of contrast, I think, to record here another instance where the cross-examination of an expert in handwriting did more to convict a prisoner, probably, than any other one piece of evidence during the entire trial.

The examination referred to occurred in the famous trial of Munroe Edwards, who was indicted for forging two drafts upon Messrs. Brown Brothers & Company, who had offered a reward of $20,000 for his arrest.

Munroe had engaged Mr. Robert Emmet to defend him, and had associated with Emmet as his counsel Mr. William M. Evarts and several famous lawyers from without the state. At that time the district attorney was Mr. James R. Whiting, who had four prominent lawyers, including Mr. Ogden Hoffman, associated with him upon the side of the government.

Recorder Vaux, of Philadelphia, was called to the witness-stand as an expert in handwriting, and in his direct testimony had very clearly identified the prisoner with the commission of the particular forgery for which he was on trial. He was then turned over to Mr. Emmet for cross-examination.

Mr. Emmet (taking a letter from among his papers and handing it to the witness, after turning down the signature): “Would you be good enough to tell me, Mr. Vaux, who was the author of the letter which I now hand you?”

Mr. Vaux (answering promptly): “This letter is in the handwriting of Munroe Edwards.”

Mr. Emmet: “Do you feel certain of that, Mr. Vaux?”

Mr. Vaux: “I do.”

Mr. Emmet: “As certain as you are in relation to the handwriting of the letters which you have previously identified as having been written by the prisoner?”

Mr. Vaux: “Exactly the same.”

Mr. Emmet: “You have no hesitation then in swearing positively that the letter you hold in your hand, in your opinion, was written by Munroe Edwards?”

Mr. Vaux: “Not the slightest.”

Mr. Emmet (with a sneer): “That will do, sir.”

District Attorney (rising quickly): “Let me see the letter.”

Mr. Emmet (contemptuously): “That is your privilege, sir, but I doubt if it will be to your profit. The letter is directed to myself, and is written by the cashier of the Orleans bank, informing me of a sum of money deposited in that institution to the credit of the prisoner. Mr. Vaux’s evidence in relation to it will test the value of his testimony in relation to other equally important points.”

Mr. Vaux here left the witness chair and walked to the table of the prosecution, reexamined the letter carefully, then reached to a tin box which was in the keeping of the prosecution and which contained New Orleans post-office stamps. He then resumed his seat in the witness chair.

Mr. Vaux (smiling): “I may be willing, Mr. Emmet, to submit my testimony to your test.”

Mr. Emmet made no reply, but the prosecuting attorney continued the examination as follows: —

District Attorney: “You have just testified, Mr. Vaux, that you believe the letter which you now hold in your hand was written by the same hand that wrote the Caldwell forgeries, and that such hand was Munroe Edwards’s. Do you still retain that opinion?”

Mr. Vaux: “I do.”

District Attorney: “Upon what grounds?”

Mr. Vaux: “Because it is a fellow of the same character as well in appearance as in device. It is a forgery, probably only intended to impose upon his counsel, but now by its unadvised introduction in evidence, made to impose upon himself and brand him as a forger.”

The true New Orleans stamps were here shown to be at variance with the counterfeit postmark upon the forged letter, and the character of the writing was also proved by comparison with many letters which were in the forger’s undoubted hand.

It turned out subsequently that the prisoner had informed his counsel, Mr. Emmet, that he was possessed of large amounts of property in Texas, some of which he had ordered to be sold to meet the contingent cost of his defence. He had drawn up a letter purporting to come from a cashier in a bank at New Orleans, directed to Mr. Emmet, informing him of the deposit on that day of $1500 to the credit of his client, which notification he, the cashier, thought proper to send to the counsel, as he had observed in the newspapers that Mr. Edwards was confined to the jail. Mr. Emmet was so entirely deceived by this letter that he had taken it to his client in prison, and had shown it to him as a sign of pleasant tidings.[29]

The manufacture or exaggeration of injuries, in damage cases against surface railroads and other corporations, had at one time, not many years ago, become almost a trade among a certain class of lawyers in the city of New York.

There are several medical books which detail the symptoms that may be expected to be exhibited in almost any form of railroad accidents. Any lawyer who is familiar with the pages of these books can readily detect indications of an equal familiarity with them on the part of the lawyer who is examining his client — the plaintiff in an accident case — as to the symptoms of his malady as set forth in these medical treatises, which have probably been put into his hands in order that he may become thoroughly posted upon the symptoms which he would be expected to manifest.

It becomes interesting to watch the history of some of these cases after the substantial amount of the verdict awarded by a jury has been paid over to the suffering plaintiff. Only last winter a couple of medical gentlemen were called as witnesses in a case where a Mrs. Bogardus was suing the Metropolitan Street Railway Company for injuries she claimed to have sustained while a passenger on one of the defendant’s cars. These expert physicians swore that Mrs. Bogardus had a lesion of the spine and was suffering from paralysis as a result of the accident. According to the testimony of the doctors, her malady was incurable and permanent. The records of the legal department of this railway company showed that these same medical gentlemen had, on a prior occasion in the case of a Mr. Hoyt against the railroad, testified to the same state of affairs in regard to Mr. Hoyt’s physical condition. He, too, was alleged to be suffering from an incurable lesion of the spine and would be paralyzed and helpless for the balance of his life. The records of the company also showed that Hoyt had recovered his health promptly upon being paid the amount of his verdict. At the time of the Bogardus trial Hoyt had been employed by H. B. Claflin & Co. for three years. He was working from seven in the morning until six in the evening, lifting heavy boxes and loading trucks.

The moment the physicians had finished their testimony in the Bogardus case, this man Hoyt was subpoenaed by the railroad company. On cross-examination these physicians both recollected the Hoyt case and their attention was called to the stenographic minutes of the questions and answers they had given under oath in that case. They were then asked if Hoyt was still alive and where he could be found. They both replied that he must be dead by this time, that his case was a hopeless one, and if not dead, he would probably be found as an inmate of one of our public insane asylums.

At this stage of the proceedings Hoyt arrived in the court room. He was requested to step forward in front of the jury. The doctors were asked to identify him, which they both did. Hoyt then took the witness-stand himself and admitted that he had never had a sick moment since the day the jury rendered a verdict in his favor; that he had gained thirty-five pounds in weight, and that he was then doing work which was harder than any he had ever done before in his life; that he worked from early morning till late at night; had never been in an insane asylum or under the care of any doctor since his trial; and ended up by making the astounding statement that out of the verdict rendered him by the jury and paid by the railroad company, he had been obliged to forfeit upwards of $1500 to the doctors who had treated him and testified in his behalf.

This was a little too much enlightenment for the jury in Mrs. Bogardus’s case, and this time they rendered their verdict promptly in favor of the railroad company.

I cannot forbear relating in this connection another most striking instance of the unreliability of expert testimony in personal injury cases. This is especially the case with certain New York physicians who openly confess it to be a part of their professional business to give expert medical testimony in court. Some of these men have taken a course at a law school in connection with their medical studies for the very purpose of fitting themselves for the witness-stand as medical experts.

One of these gentlemen gave testimony in a case which was tried only last November, which should forever brand him as a dangerous witness in any subsequent litigation in which he may appear. I have reference to the trial of Ellen McQuade against the Metropolitan Street Railway Company. This was a suit brought on behalf of the next of kin, to recover damages for the death of John McQuade who had fallen from a surface railway car and had broken his wrist so that the bone penetrated the skin. This wound was slow in healing and did not close entirely until some three months later. About six months after his accident McQuade was suddenly taken ill and died. An autopsy disclosed the fact that death resulted from inflammation of the brain, and the effort of the expert testimony in the case was to connect this abscess of the brain with the accident to the wrist, which had occurred six months previously.

This expert doctor had, of course, never seen McQuade in his lifetime, and knew nothing about the case except what was contained in the hypothetical question which he was called upon to answer. He gave it as his opinion that the broken wrist was the direct cause of the abscess in the brain, which in turn was due to a pus germ that had travelled from the wound in the arm by means of the lymphatics up to the brain, where it had found lodgment and developed into an abscess of the brain, causing death.

The contention of the railway company was that the diseased condition of the brain was due to “middle-ear disease,” which itself was the result of a cold or exposure, and in nowise connected with the accident; and that the presence of the large amount of fluid which was found in the brain after death could be accounted for only by this disease.

During the cross-examination of this medical expert, a young woman, wearing a veil, had come into court and was requested to step forward and lift her veil. The doctor was then asked to identify her as a Miss Zimmer, for whom he had testified some years previously in her damage suit against the same railway company.

At her own trial Miss Zimmer had been carried into the court room resting in a reclining chair, apparently unable to move her lower limbs, and this doctor had testified that she was suffering from chronic myelitis, an affection of the spine, which caused her to be paralyzed, and that she would never be able to move her lower limbs. His oracular words to the jury were, “Just as she is now, gentlemen, so she will always be.” The witness’s attention was called to these statements, and he was confronted with Miss Zimmer, now apparently in the full vigor of her health, and who had for many years been acting as a trained nurse. She afterward took the witness-stand and admitted that the jury had found a verdict for her in the sum of $15,000, but that her paralysis had so much improved after the administration of this panacea by the railway company that she was able, after a few months, to get about with the aid of crutches, and shortly thereafter regained the normal use of her limbs, and had ever since earned her livelihood as an obstetrical nurse.

The sensation caused by the appearance of the Zimmer woman had hardly subsided when the witness’s attention was drawn to another case, Kelly against the railway company, in which this doctor had also assisted the plaintiff. Kelly was really paralyzed, but claimed that his paralysis was due to a recent railroad accident. It appeared during the trial, however, that long before the alleged railroad accident, Kelly had lost the use of his limbs, and that his case had become so notorious as to be a subject for public lectures by many reputable city physicians. The doctor was obliged to admit being a witness in that case also, but disclaimed any intentional assistance in the fraud.

One of the greatest vices of expert medical testimony is the hypothetical question and answer which has come to play so important a part in our trials nowadays. It is, perhaps, the most abominable form of evidence that was ever allowed to choke the mind of a juror or throttle his intelligence.

An hypothetical question is supposed to be an accurate synopsis of the testimony that has already been sworn to by the various witnesses who have preceded the appearance of the medical expert in the case. The doctor is then asked to assume the truth of every fact which counsel has included in his question, and to give the jury his opinion and conclusions as an expert from these supposed facts.

It frequently happens that the physician has never even seen, much less examined, the patient concerning whose condition he is giving sworn testimony. Nine times out of ten the jury take the answer of the witness as direct evidence of the existence of the fact itself. It is the duty of the cross-examiner to enlighten the jury in regard to such questions and make them realize that it is not usually the truth of the answer, but the truth and accuracy of the question which requires their consideration. These hypothetical questions are usually loosely and inaccurately framed and present a very different aspect of the case from that which the testimony of the witnesses would justify. If, however, the question is substantially correct, it is allowed to be put to the witness; the damaging answer follows, and the jury conclude that the plaintiff is certainly suffering from the dreadful or incurable malady the doctor has apparently sworn to.

A clever cross-examiner is frequently able to shatter the injurious effect of such hypothetical questions. One useful method is to rise and demand of the physician that he repeat, in substance, the question that had just been put to him and upon which he bases his answer. The stumbling effort of the witness to recall the various stages of the question (such questions are usually very long) opens the eyes of the jury at once to the dangers of such testimony. It is not always safe, however, to make this inquiry. It all depends upon the character of witness you are examining. Some doctors, before being sworn as witnesses, study carefully the typewritten hypothetical questions which they are to answer. A single inquiry will easily develop this phase of the matter, and if the witness answers that he has previously read the question, it is often usual to ask him which particular part of it he lays the most stress upon, and which parts he could throw out altogether. Thus one may gradually narrow him down to some particular factor in the hypothetical question, the truth of which the previous testimony in the case might have left in considerable doubt.

It will often turn out that a single sentence or twist in the question serves as a foundation for the entire answer of the witness. This is especially the case with conscientious physicians, who often suggest to counsel the addition of a few words which will enable them to answer the entire question as desired. The development of this fact alone will do much to destroy the witness with the jury. I discovered once, upon cross-examining one of our most eminent physicians, that he had added the words, “Can you say with positiveness,” to a lawyer’s hypothetical question, and then had taken the stand and answered the question in the negative, although had he been asked for his honest opinion on the subject, he would have been obliged to have given a different answer.

Hypothetical questions put in behalf of a plaintiff would not of course include facts which might develop later for the defence. When cross-examining to such questions, therefore, it is often useful to inquire in what respect the witness would modify his answer if he were to assume the truth of these new factors in the case. “Supposing that in addition to the matters you have already considered, there were to be added the facts that I will now give you,” etc., “what would your opinion be then?” etc.

Frequently hypothetical questions are so framed that they answer themselves by begging the question. In the Guiteau case all the medical experts were asked in effect, though not in form, to assume that a man having an hereditary taint of insanity, exhibits his insanity in his youth, exhibits it in his manhood, and at a subsequent date, being under the insane delusion that he was authorized and commanded by God to kill the President of the United States, proceeded without cause to kill him; and upon these assumptions the experts were asked to give their opinion whether such a man was sane or insane.

To pick out the flaws in most hypothetical questions; to single out the particular sentence, adjective, or adverb upon which the physician is centring his attention as he takes his oath, requires no little experience and astuteness.

The professional witness is always partisan, ready and even eager to serve the party calling him. This fact should be ever present in the mind of the cross-examiner. Encourage the witness to betray his partisanship; encourage him to volunteer statements and opinions, and to give irresponsive answers. Jurors always look with suspicion upon such testimony. Assume that an expert witness called against you has come prepared to do you all the harm he can, and will avail himself of every opportunity to do so which you may inadvertently give him. Such witnesses are usually shrewd and cunning men, and come into court prepared on the subject concerning which they are to testify.

Some experts, however, are mere shams and pretenders. I remember witnessing some years ago the utter collapse of one of these expert pretenders of the medical type. It was in a damage suit against the city. The plaintiff’s doctor was a loquacious gentleman of considerable personal presence. He testified to a serious head injury, and proceeded to “lecture” the jury on the subject in a sensational and oracular manner which evidently made a great impression upon the jury. Even the judge seemed to give more than the usual attention. The doctor talked glibly about “vasomotor nerves” and “reflexes” and expressed himself almost entirely in medical terms which the jury did not understand. He polished off his testimony with the prediction that the plaintiff could never recover, and if he lived at all, it would necessarily be within the precincts of an insane asylum. Counsel representing the city saw at a glance that this was no ordinary type of witness. Any cross-examination on the medical side of the case would be sure to fail; for the witness, though evidently dishonest, was yet ingenious enough to cover his tracks by the cuttle-fish expedient of befogging his answers in a cloud of medical terms. Dr. Allan McLane Hamilton, who was present as medical adviser in behalf of the city, suggested the following expedient: —

Counsel: “Doctor, I infer from the number of books that you have brought here to substantiate your position, and from your manner of testifying, that you are very familiar with the literature of your profession, and especially that part relating to head injury.”

Doctor: “I pride myself that I am — I have not only a large private library, but have spent many months in the libraries of Vienna, Berlin, Paris, and London.”

Counsel: “Then perhaps you are acquainted with Andrews’s celebrated work ‘On the Recent and Remote Effects of Head Injury’?”

Doctor (smiling superciliously): “Well, I should say I was. I had occasion to consult it only last week.”

Counsel: “Have you ever come across ‘Charvais on Cerebral Trauma’?”

Doctor: “Yes, I have read Dr. Charvais’s book from cover to cover many times.”

Counsel continued in much the same strain, putting to the witness similar questions relating to many other fictitious medical works, all of which the doctor had either “studied carefully” or “had in his library about to read,” until finally, suspecting that the doctor was becoming conscious of the trap into which he was being led, the counsel suddenly changed his tactics and demanded in a loud sneering tone if the doctor had ever read Page on “Injuries of the Spine and Spinal Cord” (a genuine and most learned treatise on the subject). To this inquiry the doctor laughingly replied, “I never heard of any such book and I guess you never did either!”

The climax had been reached. Dr. Hamilton was immediately sworn for the defence and explained to the jury his participation in preparing the list of bogus medical works with which the learned expert for the plaintiff had shown such familiarity!

On the other hand, when the cross-examiner has totally failed to shake the testimony of an able and honest expert, he should be very wary of attempting to discredit him by any slurring allusions to his professional ability, as is well illustrated by the following example of the danger of giving the expert a good chance for a retort.

Dr. Joseph Collins, a well-known nerve specialist, was giving testimony last winter on the side of the Metropolitan Street Railway in a case where the plaintiff claimed to be suffering from a misplaced kidney which the railroad doctor’s examination failed to disclose. Having made nothing out of the cross-examination of Dr. Collins, the plaintiff’s lawyer threw this parting boomerang at the witness: —

Counsel: “After all, doctor, isn’t it a fact that nobody in your profession regards you as a surgeon?”

Doctor: “I never regarded myself as one.”

Counsel: “You are a neurologist, aren’t you, doctor?”

Doctor: “I am, sir.”

Counsel: “A neurologist, pure and simple?”

Doctor: “Well, I am moderately pure and altogether simple.”

Aside from the suggestions already made as to the best methods of cross-examining experts, no safe general rules can be laid down for the successful cross-examination of expert alienists, but a most happy illustration of one excellent method which may be adopted with a certain type of alienist was afforded by the cross-examination in the following proceedings: —

In the summer of 1898 habeas corpus proceedings were instituted in New York to obtain the custody of a child. The question of the father’s sanity or insanity at the time he executed a certain deed of guardianship was the issue in the trial.

A well-known alienist, who for the past ten years has appeared in the New York courts upon one side or the other in pretty nearly every important case involving the question of insanity, was retained by the petitioner to sit in court during the trial and observe the actions, demeanor, and testimony of the father, the alleged lunatic, while he was giving his evidence upon the witness-stand.

At the close of the father’s testimony this expert witness was himself called upon to testify as to the result of his observation, and was interrogated as follows: —

Counsel: “Were you present in court yesterday when the defendant in the present case was examined as a witness?”

Witness: “I was.”

Counsel: “Did you see him about the courtroom before he took the witness-stand?”

Witness: “I observed him in this court room and on the witness-stand on Monday”

Counsel: “You were sitting at the table here during the entire session?”

Witness: “I was sitting at the table during his examination.”

Counsel: “You heard all his testimony?”

Witness: “I did.”

Counsel: “Did you observe his manner and behavior while giving his testimony?”

Witness: “I did.”

Counsel: “Closely?”

Witness: “Very closely.”

Upon being shown certain specimens of the handwriting of the defendant, the examination proceeded as follows: —

Counsel: “Now, Doctor, assuming that the addresses on these envelopes were written by the defendant some three or more years ago, and that the other addresses shown you and the signatures attached thereto were written by him within this last year, and taking into consideration at the same time the defendant’s manner upon the witness-stand, as you observed it, and his entire deportment while under examination, did you form an opinion as to his present mental condition?”

Witness: “I formed an estimate of his mental condition from my observation of him in the court room and while he was giving his testimony and from an examination of these specimens of handwriting taken in connection with my observation of the man himself.”

Counsel: “What in your opinion was his mental condition at the time he gave his testimony?”

The Court: “I think, Doctor, that before you answer that question, it would be well for you to tell us what you observed upon which you based your opinion.”

Witness: “It appeared to me that upon the witness stand the defendant exhibited a slowness and hesitancy in giving answers to perfectly distinct and easily comprehensible questions, which was not consistent with a sound mental condition of a person of his education and station in life. I noted a forgetfulness, particularly of recent events. I noted also an expression of face which was peculiarly characteristic of a certain form of mental disease; an expression of, I won’t say hilarity, but a fatuous, transitory smile, and exhibited upon occasions which did not call in my opinion for any such facial expression, and which to alienists possesses a peculiar significance. As regards these specimens of handwriting which I have been shown, particularly the signature to the deed, it appears to me to be tremulous and to show a want of coordinating power over the muscles which were used in making that signature.”

In answer to a hypothetical question describing the history of the defendant’s life as claimed by the petitioner, the witness replied: —

Witness: “My opinion is that the person described in the hypothetical question is suffering from a form of insanity known as paresis, in the stage of dementia.”

Upon the adjournment of the day’s session of the court, the witness was requested to take the deed (the signature to which was the writing which he had described as “tremulous” and on which he had based his opinion of dementia) and to read it carefully over night. The following morning this witness resumed the stand and gave it as his opinion that the defendant was in such condition of mind that he could not comprehend the full purpose and effect of that paper.

The doctor was here turned over to defendant’s counsel for cross-examination. Counsel jumped to his feet and, taking the witness off his guard, rather gruffly shouted: —

Counsel: “In your opinion, what were you employed to come here for?”

Witness (after hesitating a considerable time): “I was employed to come here to listen to the testimony of this defendant, the father of this child whose guardianship is under dispute.”

Counsel: “Was that a simple question that I put to you? Did you consider it simple?”

Witness: “A perfectly simple question.”

Counsel (smiling): “Why were you so slow about answering it then?”

Witness: “I always answer deliberately; it is my habit.”

Counsel: “Would that be an evidence of derangement in your mental faculties, Doctor — the slowness with which you answer?”

Witness: “I am making an effort to answer your questions correctly.”

Counsel: “But perhaps the defendant was making an effort to answer questions correctly the other day?”

Witness: “He was undoubtedly endeavoring to do so.”

Counsel: “You came here for the avowed purpose of watching the defendant, didn’t you?”

Witness: “I came here for the purpose of giving an opinion upon his mental condition.”

Counsel: “Did you intend to listen to his testimony before forming any opinion?”

Witness: “I did.”

Counsel (now smiling): “One of the things that you stated as indicating the disease of paresis was the defendant’s slowness in answering simple questions, wasn’t it?”

Witness: “It was.”

******

Counsel: “Now, in forming your opinion, you based it in part on his handwriting, did you not?”

Witness: “I did, as I testified yesterday.”

Counsel: “And for that purpose you selected one signature to a particular instrument and threw out of consideration certain envelopes which were handed to you; is that right?”

Witness: “I examined a number of signatures, but there was only one which showed the characteristic tremor of paresis, and that was the signature to the instrument.”

The witness was here shown various letters and writings of the defendant executed at a later date than the deed of guardianship.

Counsel: “Now, Doctor, what have you to say to these later writings?”

Witness: “They are specimens of good handwriting. If you wish to draw it out, they do not indicate any disease paresis or any other disease.”

Counsel: “Do you think there has been an improvement in the defendant’s condition meanwhile?”

Witness: “I don’t know. There is certainly a great improvement in his handwriting.”

Counsel: “It would appear, then, Doctor, that you selected from a large mass of papers and letters only one which showed nervous trouble, and do you pretend to say that you consider that as fair?”

Witness: “I do, because I looked for the one that showed the most nervous trouble, although it is true I found only one.”

Counsel: “How many specimens of handwriting were submitted to you from which you made this selection?”

Witness: “Some fifteen or twenty.”

Counsel: “Doctor, you are getting a little slow in your answers again.”

Witness: “I have a right; my answers go on the record. I have a right to make them as exact and careful as I please.”

Counsel (sternly): “The defendant was testifying for his liberty and the custody of his child; he had a right to be a little careful; don’t you think he had?”

Witness: “Undoubtedly.”

Counsel: “You also expressed the opinion that the defendant could not understand or comprehend the meaning of the deed of guardianship that has been put in your hands for examination over night?”

Witness: “That is my opinion.”

Counsel: “What do you understand to be the effect of this paper?”

Witness: “The effect of that paper is to appoint, for a formal legal consideration, Mrs. Blank as the guardian of defendant’s daughter and to empower her and to give her all of the rights and privileges which such guardianship involves, and Mrs. Blank agrees on her part to defend all suits for wrongful detention as if it were done by the defendant himself, and the defendant empowers her to act for him as if it were by himself in that capacity. That is my recollection.”

Counsel: “What that paper really accomplishes is to transfer the management and care and guardianship of the child to Mrs. Blank, isn’t it?”

Witness: “I don’t know. I am speaking only as to what bears on his mental condition.”

Counsel: “Do you know whether that is what the paper accomplishes?”

Witness: “I have given you my recollection as well as I can. I read the paper over once.”

Counsel: “I am asking you what meaning it conveyed to your mind, because I am going to give the defendant the distinguished honor of contrasting his mind with yours.”

Witness: “I should be very glad to be found inferior to his; I wish he were different.”

Counsel: “When the defendant testified about that paper, he was asked the same question that you were asked, and he said, ‘I know it was simply a paper supposed to give Mrs. Blank the management and care of my child.’ Don’t you think that was a pretty good recollection of the contents of the paper for a man in the state of dementia that you have described?”

Witness: “Very good.”

Counsel: “Rather remarkable, wasn’t it?”

Witness: “It was a correct interpretation of the paper.”

Counsel: “If he could give that statement on the witness-stand in answer to hostile counsel, do you mean to say that he couldn’t comprehend the meaning of the paper?”

Witness: “He was very uncertain, hesitating, if I recollect it, about that statement. He got it correct, that’s true.”

Counsel: “Then it was the manner of his statement and not the substance that you are dealing with; is that it?”

Witness: “He stated that his recollection was not good and he didn’t quite recollect what it was, but subsequently he made that statement.”

Counsel: “Don’t you think it was remarkable for him to have been able to recollect from the seventh day of June the one great fact concerning this paper, to wit: that he had given the care and maintenance of his daughter to Mrs. Blank?”

Witness: “He did recollect it.”

Counsel: “It is a pretty good recollection for a dement, isn’t it?”

Witness: “He recollected it.”

Counsel: “Is that a good recollection for a dement?”

Witness: “It is.”

Counsel: “Isn’t it a good recollection for a man who is not a dement?”

Witness: “He recollected it perfectly.”

Counsel: “Don’t you understand, Doctor, that the man who can describe a paper in one sentence is considered to have a better mind than he who takes half a dozen sentences to describe it?”

Witness: “A great deal better mind.”

Counsel: “Then the defendant rather out-distanced you in describing that paper?”

Witness: “He was very succinct and accurate.”

Counsel: “And that is in favor of his mind as against yours?”

Witness: “As far as that goes.”

Counsel: “Now we will take up the next subject, and see if I cannot bring the defendant’s mind up to your level in that particular. The next thing you noticed, you say, was the slowness and hesitancy with which he gave his answers to perfectly distinct and easily comprehended questions?”

Witness: “That is correct.”

Counsel: “But you have shown the same slowness and hesitancy to-day, haven’t you?”

Witness: “I have shown no hesitancy; I have been deliberate.”

Counsel: “What is your idea of the difference between hesitancy and deliberation, Doctor?”

Witness: “Hesitancy is what I am suffering from now; I hesitate in finding an answer to that question.”

Counsel: “You admit there is hesitation; isn’t that so?”

Witness: “And slowness is slowness.”

Counsel: “Then we have got them both from you now. You are both slow and you hesitate, on your own statement; is that so, Doctor?”

Witness: “Yes.”

Counsel: “So the defendant and you are quits again on that; is that right?”

Witness: “I admit no slowness and hesitancy. I am giving answers to your questions as carefully and accurately and frankly and promptly as I can.”

Counsel: “Wasn’t the defendant doing that?”

Witness: “I presume he was.”

Counsel: “What was the next thing that you observed besides his slowness and hesitancy, do you remember?”

Witness: “You will have to refresh my memory.”

Counsel (quoting): “ ‘I noted a forgetfulness, particularly of recent events.’ You think the defendant is even with you now, on forgetfulness, don’t you?”

Witness: “It looks that way.”

Counsel: “You say further, ‘I noted an expression of face which was peculiarly characteristic of a certain form of mental disease; I noticed particularly an expression of, I won’t say hilarity, but a fatuous, transitory smile, on occasions which did not call, in my opinion, for any such facial expression.’ Would you think it was extraordinary that there should be a supercilious smile on the face of a sane man under some circumstances?”

Witness: “I should think it would be very extraordinary.”

Counsel: “Doctor, he might have had in mind the fact of the little talk you and I were to have this afternoon. That might have brought a smile to his face; don’t you think so?”

Witness: “I do not.”

Counsel: “If as he sat there he had any idea of what I would ask you and what your testimony would be, don’t you think he was justified in having an ironical expression upon his face?”

Witness: “Perhaps.”

Counsel: “It comes to this, then, you selected only one specimen of tremulous handwriting?”

Witness: “I said so.”

Counsel: “You yourself have shown slowness in answering my questions?”

Witness: “Sometimes.”

Counsel: “And forgetfulness?”

Witness: “You said so.”

Counsel: “And you admit that any sane man listening to you would be justified in having an ironical smile on his face?”

Witness: (No answer.)

Counsel: “You also admitted that the man you claim to be insane, gave from memory a better idea of the contents of this legal paper than you did, although you had examined and studied it over night?”

Witness: “Perhaps.”

Counsel (condescendingly): “You didn’t exactly mean then that the defendant was actually deprived of his mind?”

Witness: “No, he is not deprived of his mind, and I never intended to convey any such idea.”

Counsel: “Then, after all, your answers mean only that the defendant has not got as much mind as some other people; is that it?”

Witness: “Well, my answers mean that he has paresis with mental deterioration, and, if you wish me to say so, not as much mind as some other people; there are some people who have more and some who have less.”

Counsel: “He has enough mind to escape an expression which would indicate the entire deprivation of the mental faculties?”

Witness: “Yes.”

Counsel: “He has enough mind to write the letters of which you have spoken in the highest terms?”

Witness: “I have said they were good letters.”

Counsel: “He has enough mind to accurately and logically describe this instrument, the deed of guardianship, which he executed?”

Witness: “As I have described.”

Counsel: “He probably knows more about his domestic affairs than you do. That is a fair presumption, isn’t it?”

Witness: “I know nothing about them.”

Counsel: “For all that you know he may have had excellent reasons for taking the very course he has taken in this case?”

Witness: “That is not impossible; it is none of my affair.”

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, injustice, 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 today?” “Did you tell your counsel about it?” “Were you intending to deceive him?” “What was your object in trying to mislead the jury?”[30]

“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.[31]

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.”

John Philpot Curran, known as the most popular advocate of his time, and second only to Erskine as a jury lawyer, once indulged himself in this silent mode of cross-examination, but made the mistake of speaking his thoughts aloud before he sat down. “There is no use asking you questions, for I see the villain in your face.” “Do you, sir?” replied the witness with a smile, “I never knew before that my face was a looking-glass.”

Since the sole object of cross-examination is to break the force of the adverse testimony, it must be remembered that a futile attempt only strengthens the witness with the jury. It cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt.

An amusing instance of this occurred in the trial of Alphonse Stephani, indicted for the murder of Clinton G. Reynolds, a prominent lawyer in New York who had had the management and settlement of his father’s estate. The defence was insanity; but the prisoner, though evidently suffering from the early stages of some serious brain disorder, was still not insane in the legal acceptation of the term. He was convicted of murder in the second degree and sentenced to a life imprisonment.

Stephani was defended by the late William F. Howe, Esq., who was certainly one of the most successful lawyers of his time in criminal cases. Howe was not a great lawyer, but the kind of witnesses ordinarily met with in such cases he usually handled with a skill that was little short of positive genius.

Dr. Allan McLane Hamilton, the eminent alienist, had made a special study of Stephani’s case, had visited him for weeks at the Tombs Prison, and had prepared himself for a most exhaustive exposition of his mental condition. Dr. Hamilton had been retained by Mr. Howe, and was to be put forward by the defence as their chief witness. Upon calling him to the witness-chair, however, he did not question his witness so as to lay before the jury the extent of his experience in mental disorders and his familiarity with all forms of insanity, nor develop before them the doctor’s peculiar opportunities forjudging correctly of the prisoner’s present condition. The wily advocate evidently looked upon District Attorney DeLancey Nicoll and his associates, who were opposed to him, as a lot of inexperienced youngsters, who would cross-examine at great length and allow the witness to make every answer tell with double effect when elicited by the state’s attorney. It has always been supposed that it was a preconceived plan of action between the learned doctor and the advocate. In accordance therewith, and upon the examination-in-chief, Mr. Howe contented himself with this single inquiry: —

“Dr. Hamilton, you have examined the prisoner at the Bar, have you not?”

“I have, sir,” replied Dr. Hamilton.

“Is he, in your opinion, sane or insane?,” continued Mr. Howe.

“Insane,” said Dr. Hamilton.

“You may cross-examine,” thundered Howe, with one of his characteristic gestures. There was a hurried consultation between Mr. Nicoll and his associates.

“We have no questions,” remarked Mr. Nicoll, quietly.

“What!” exclaimed Howe, “not ask the famous Dr. Hamilton a question? Well, I will,” and turning to the witness began to ask him how close a study he had made of the prisoner’s symptoms, etc.; when, upon our objection, Chief Justice Van Brunt directed the witness to leave the witness-box, as his testimony was concluded, and ruled that inasmuch as the direct examination had been finished, and there had been no cross-examination, there was no course open to Mr. Howe but to call his next witness!

Mr. Sergeant Ballantine in his autobiography, “Some Experiences of a Barrister’s Life,” gives an account of the trial for murder of a young woman of somewhat prepossessing appearance, who was charged with poisoning her husband. “They were people in a humble class of life, and it was suggested that she had committed the act to obtain possession of money from a burial fund, and also that she was on terms of improper intimacy with a young man in the neighborhood. A minute quantity of arsenic was discovered in the body of the deceased, which in the defence I accounted for by the suggestion that poison had been used carelessly for the destruction of rats. Mr. Baron Parke charged the jury not unfavorably to the prisoner, dwelling pointedly upon the small quantity of arsenic found in the body, and the jury without much hesitation acquitted her. Dr. Taylor, the professor of chemistry and an experienced witness, had proved the presence of arsenic, and, as I imagine, to the great disappointment of my solicitor, who desired a severe cross-examination, I did not ask him a single question. He was sitting on the bench and near the judge, who, after he had summed up and before the verdict was pronounced, remarked to him that he was surprised at the small amount of arsenic found; upon which Taylor said that if he had been asked the question, he should have proved that it indicated, under the circumstances detailed in evidence, that a very large quantity had been taken. The professor had learned never to volunteer evidence, and the counsel for the prosecution had omitted to put the necessary question. Mr. Baron Parke, having learned the circumstance by accidental means, did not feel warranted in using the information, and I had my first lesson in the art of silent cross-examination.’ ”

Another exceedingly interesting and useful lesson in the art of silent cross-examination will be found in the following story as told by Richard Harris, K. C., in the London Law Journal for 1902.

“A long time ago, in the East End of London, lived a manufacturer of the name of Waring. He was in a large way of business, had his country house, where his family lived, and his town establishment. He was a man of great parochial eminence and respect ability.

“Among the many hands he employed was a girl of the name of Harriet Smith. She came from the country and had not quite lost the bloom of rusticity when the respectable Mr. Waring fell in love with her. Had Harriet known he was married, in all probability she would have rejected his respectable attentions. He induced her to marry him, but it was to be kept secret; her father was not to know of it until such time as suited Mr. Waring’s circumstances.

“In the course of time there were two children; and then unfortunately came a crisis in Mr. Waring’s affairs. He was bankrupt. The factory and warehouse were empty, and Harriet was deprived of her weekly allowance.

“One day when Waring was in his warehouse, wondering, probably, what would be his next step, old Mr. Smith, the father of Harriet, called to know what had become of his daughter. ‘That,’ said Mr. Waring, ‘is exactly what I should like to know.’ She had left him, it seemed, for over a year, and, as he understood, was last seen in Paris. The old man was puzzled, and informed Waring that he would find her out, dead or alive; and so went away. It was a strange thing, said the woman in whose house Mrs. Waring had apartments, that she should have gone away and never inquired about her children, especially as she was so fond of them.

“She had gone nearly a year, and in a few days Mr. Waring was to surrender the premises to his landlord. There never was a man who took things more easily than Mr. Waring; leaving his premises did not disturb him in the least, except that he had a couple of rather large parcels which he wanted to get away without anybody seeing him. It might be thought that he had been concealing some of his property if he were to be seen taking them away.

“It happened that there had been a youth in his employ of the name of Davis — James Davis — a plain simple lad enough, and of kind obliging disposition. He had always liked his old master, and was himself a favorite. Since the bankruptcy he had been apprenticed to another firm in Whitechapel, and one Saturday night as he was strolling along toward the Minories to get a little fresh air, suddenly met his old master, who greeted him with his usual cordiality and asked him if he had an hour to spare, and, if so, would he oblige him by helping him to a cab with a couple of parcels which belonged to a commercial traveller and contained valuable samples? James consented willingly, and lighting each a cigar which Mr. Waring produced, they walked along, chatting about old times and old friends. When they got to the warehouse there were the two parcels, tied up in American cloth.

“ ‘Here they are,’ said Mr. Waring, striking a light. You take one, and I’ll take the other; they’re pretty heavy and you must be careful how you handle them, or some of the things might break.’

“When they got to the curb of the pavement, Mr. Waring said, ‘Stop here, and I’ll fetch a four-wheeler.’

“While James was waiting, a strange curiosity to look into the parcels came over him; so strange that it was irresistible, and accordingly he undid the end of one of them. Imagine the youth’s horror when he was confronted with a human head that had been chopped off at the shoulders!

“ ‘My hair stood on end,’ said the witness, ‘and my hat fell off.’ But his presence of mind never forsook him. He covered the ghastly ‘relic of mortality’ up and stood like a statue, waiting Mr. Waring’s return with his cab.

“ ‘Jump in, James,’ said he, after they had put the ‘samples’ on the top of the cab. But James was not in the humor to get into the cab. He preferred running behind. So he ran behind all along Whitechapel road, over London bridge, and away down Old Kent road, shouting to every policeman he saw to stop the cab, but no policeman took any notice of him except to laugh at him for a lunatic. The ‘force’ does not disturb its serenity of mind for trifles.

“By and by the cab drew up in a back street in front of an empty house, which turned out to be in the possession of Mr. Waring’s brother; a house built in a part of Old London with labyrinths of arches, vaults, and cellars in the occupation of rats and other vermin.

“James came up, panting, just as his old master had taken his first packet of samples into the house. He had managed somehow or other to get a policeman to listen to him.

“The policeman, when Mr. Waring was taking in the second parcel, boldly asked him what he’d got there.

“ ‘Nothing for you,’ said Mr. Waring.

“ ‘I don’t know about that,’ replied the policeman, ‘let’s have a look.’

“Here Mr. Waring lost his presence of mind, and offered the policeman, and another member of the force who had strolled up, a hundred pounds not to look at the parcels.

“But the force was not to be tampered with. They pushed Mr. Waring inside the house, and there discovered the ghastly contents of the huge bundles. The policemen’s suspicions were now aroused, and they proceeded to the police station, where the divisional surgeon pronounced the remains to be those of a young woman who had been dead for a considerable time and buried in chloride of lime.

“Of course this was no proof of murder, and the charge of murder against Waring was not made until a considerable time after — not until the old father had declared time after time that the remains were those of his daughter Harriet.

“At length the treasury became so impressed with the old man’s statement that the officials began to think it might be a case of murder after all, especially as there were two bullet wounds at the back of the woman’s head, and her throat had been cut. There was also some proof that she had been buried under the floor of Mr. Waring’s warehouse, some hair being found in the grave, and a button or two from the young woman’s jacket.

“All these things tended to awaken the suspicion of the treasury officials. Of course there was a suggestion that it was a case of suicide, but the Lord Chief Justice disposed of that later on at the trial by asking how a woman could shoot herself twice in the back of the head, cut her throat, bury herself under the floor, and nail the boards down over her grave.

“Notwithstanding it was clear that no charge of murder could be proved without identification, the treasury boldly made a dash for the capital charge, in the hope that something might turn up. And now, driven to their wits’ end, old Mr. Smith was examined by one of the best advocates of the day, and this is what he made of him: —

“ ‘You have seen the remains?’

“Yes.’

“Whose do you believe them to be?’

“My daughter’s, to the best of my belief.’

“Why do you believe them to be your daughter’s?’

“By the height, the color of the hair, and the smallness of the foot and leg.’

“That was all; and it was nothing.

“But there must needs be cross-examination if you are to satisfy your client. So the defendant’s advocate asks: —

“ ‘ Is there anything else upon which your belief is founded?’

“ ‘ No,’ hesitatingly answers the old man, turning his hat about as if there was some mystery about it.

“There is breathless anxiety in the crowded court, for the witness seemed to be revolving something in his mind that he did not like to bring out.

“ ‘ Yes,’ he said, after a dead silence of two or three minutes. ‘My daughter had a scar on her leg.’

“There was sensation enough for the drop scene. More cross-examination was necessary now to get rid of the business of the scar, and some reexamination, too.

“The mark, it appeared, was caused by Harriet’s having fallen into the fireplace when she was a girl.

“ ‘Did you see the mark on the remains?’ asked the prisoner’s Counsel.

“ ‘No; I did not examine for it. I hadn’t seen it for ten years.’

“There was much penmanship on the part of the treasury, and as many interchanges of smiles between the officials as if the discovery had been due to their sagacity; and they went about saying, ‘How about the scar? How will he get over the scar? What do you think of the scar?’ Strange to say, the defendant’s advisers thought it prudent to ask the magistrate to allow the doctors on both sides to examine the remains in order to ascertain whether there was a scar or not, and, stranger still, while giving his consent, the magistrate thought it was very immaterial.

“It proved to be so material that when it was found on the leg, exactly as the old man and a sister had described it, the doctors cut it out and preserved it for production at the trial.

“After the discovery, of course the result of the trial was a foregone conclusion.

“It will be obvious to the sagacious reader that the blunder indicated was not the only one in the case. On the other side was one of equal gravity and more unpardonable, which needs no pointing out. Justice, baffled by want of tact on one side, was righted by an accident on the other.”

CHAPTER VIII. CROSS-EXAMINATION TO THE “FALLACIES OF TESTIMONY”

It is intended in this chapter to analyze some of the elements of human nature and human understanding that combine to conceal the truth about any given subject under investigation, where the witnesses are themselves honest and unconscious of any bias, or partisanship, or motive for erroneous statement.

Rufus Choate once began one of his more abstruse arguments before Chief Justice Shaw in the following manner: “In coming into the presence of your Honor I experience the same feelings as the Hindoo when he bows before his idol. I realize that you are ugly, but I feel that you are great!”

I am conscious of something of the same feeling as I embark upon the following discussion. I realize the subject is dry, but I feel that its importance to all serious students of advocacy is great.

No one can frequent our courts of justice for any length of time without finding himself aghast at the daily spectacle presented by seemingly honest and intelligent men and women who array themselves upon opposite sides of a case and testify under oath to what appear to be absolutely contradictory statements of fact.

It will be my endeavor in what follows to deal with this subject from its psychological point of view and to trace some of the causes of these unconscious mistakes of witnesses, so far as it is possible. The inquiry is most germane to what has preceded, for unless the advocate comprehends something of the sources of the fallacies of testimony, it surely would become a hopeless task for him to try to illuminate them by his cross-examinations.

It has been aptly said that “Knowledge is only the impression of one’s mind and not the fact itself, which may present itself to many minds in many different aspects.” The unconscious sense impressions — sight, sound, or touch — would be the same to every human mind; but once you awaken the mind to consciousness, then the original impression takes on all the color of motive, past experience, and character of the individual mind that receives it. The sensation by itself will be always the same. The variance arises when the sensation is interpreted by the individual and becomes a perception of his own mind.

When a man on a hot day looks at a running stream and sees the delicious coolness, he is really adding something of himself, which he acquired by his past experience to the sense impression which his eye gives him. A different individual might receive the impression of tepid insipidity instead of “delicious coolness” in accordance with his own past experiences. The material of sensation is acted on by the mind which clothes the sensation with the experiences of the individual.[32] Helmholtz distinctly calls the perception of distance, for example, an unconscious inference, — a mechanically performed act of judgment.

The interpretation of a sensation is, therefore, the act of the individual, and different individuals will naturally vary in their interpretations of the same sensation according to their previous experiences and various mental characteristics. This process is most instantaneous, automatic, and unconscious. “The artist immediately sees details where to other eyes there is a vague or confused mass; the naturalist sees an animal where the ordinary eye only sees a form.”[33] An adult sees an infinite variety of things that are meaningless to the child.

Likewise the same impression may be differently interpreted by the same individual at different times, due in part to variations in his state of attention at the moment, and in the degree of the mind’s readiness to look at the impression in the required way. A timid man will more readily fall into the illusion of ghost-seeing than a cool-headed man, because he is less attentive to the actual impression of the moment.

Every mind is attentive to what it sees or hears, more or less, according to circumstances. It is in the region of hazy impressions that the imagination is wont to get in its most dangerous work. It often happens that, when the mind is either inactive, or is completely engrossed by some other subject of thought, the sensation may neither be perceived, nor interpreted, nor remembered, notwithstanding there may be evidence, derived from the respondent movements of the body, that it has been felt; as, for example, a person in a state of imperfect sleep may start at a loud sound, or turn away from a bright light, being conscious of the sensation and acting automatically upon it, but forming no kind of appreciation of its source and no memory of its occurrence.[34] Such is the effect of sensation upon complete inattention. It thus appears that it is partly owing to this variation in intensity of attention that different individuals get such contradictory ideas of the same occurrence or conversation. When we add to this variance in the degree of attention, the variance, just explained, in the individual interpretation or coloring of the physical sensation, we have still further explanation of why men so often differ in what they think they have seen and heard.

Desire often gives rise to still further fallacy. Desire prompts the will to fix the attention on a certain point, and this causes the emphasis of this particular point or proposition to the exclusion of others. The will has the power of keeping some considerations out of view, and thereby diminishes their force, while it fixes the attention upon others, and thereby increases their force.

Sir John Romilly, in an opinion reported in 16 Beavan, 105, says: “It must always be borne in mind how extremely prone persons are to believe what they wish. It is a matter of frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrences of circumstances which at first they only begin by believing must have happened. What was originally the result of imagination becomes in time the result of recollection. Without imputing anything like wilful and corrupt perjury to witnesses of this description, they often in truth bona fide believe that they have heard and remembered conversations and observations which in truth never existed, but are the mere offspring of their imaginations.”

Still another most important factor and itself the source of an enormous number of “fallacies of testimony” is memory. We are accustomed to speak of memory as if it consisted in an exact reproduction of past states of consciousness, yet experience is continually showing us that this reproduction is very often inexact, through the modifications which the “trace” has undergone in the interval. Sometimes the trace has been partially obliterated; and what remains may serve to give a very erroneous (because imperfect) view of the occurrence. When it is one in which our own feelings are interested, we are extremely apt to lose sight of what goes against them, so that the representation given by memory is altogether one-sided. This is continually demonstrated by the entire dissimilarity of the accounts of the same occurrence or conversation which is often given by two or more parties concerned in it, even when the matter is fresh in their minds, and they are honestly desirous of telling the truth. This diversity will usually become still more pronounced with the lapse of time, the trace becoming gradually but unconsciously modified by the habitual course of thought and feeling, so that when it is so acted upon after a lengthened interval as to bring up a reminiscence of the original occurrence, that reminiscence really represents, not the original occurrence, but the modified trace of it.[35]

Mr. Sully says: “Just as when distant objects are seen mistily our imaginations come into play, leading us to fancy that we see something completely and distinctly, so when the images of memory become dim, our present imagination helps to restore them, putting a new patch into the old garment. If only there is some relic even of the past preserved, a bare suggestion of the way in which it may have happened will often suffice to produce the conviction that it actually did happen in this way. The suggestions that naturally rise in our minds at such times will bear the stamp of our present modes of experience and habits of thought. Hence, in trying to reconstruct the remote past we are constantly in danger of importing our present selves into our past selves.”

Senator George F. Hoar, in his recently published “Autobiography of Seventy Years,” says: —

“The recollections of the actors in important political transactions are doubtless of great historic value. But I ought to say frankly that my experience has taught me that the memory of men, even of good and true men, as to matters in which they have been personal actors, is frequently most dangerous and misleading. I could recount many curious stories which have been told me by friends who have been writers of history and biography, of the contradictory statements they have received from the best men in regard to scenes in which they have been present.”

It is obviously the province of the cross-examiner to detect the nature of any foreign element which may have been imported into a witness’s memory of an event or transaction to which he testifies, and if possible to discover the source of the error; whether the memory has been warped by desire or imagination, or whether the error was one of original perception, and if so, whence it arose, whether from lack of attention or from wrong association of previous personal experience.

Not only does our idea of the past become inexact by the mere decay and disappearance of essential features; it becomes positively incorrect through the gradual incorporation of elements that do not properly belong to it. Sometimes it is easy to see how these extraneous ideas become imported into our mental representation of a past event. Suppose, for example, that a man has lost a valuable scarf-pin. His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it. When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say he remembers that this particular servant did steal the pin. Thus the past activity of imagination serves to corrupt and partially falsify recollections that have a genuine basis of fact.[36]

A very striking instance of the effect of habit on the memory, especially in relation to events happening in moments of intense excitement, was afforded by the trial of a man by the name of Twichell, who was justly convicted in Philadelphia some years ago, although by erroneous testimony. In order to obtain possession of some of his wife’s property which she always wore concealed in her clothing, Twichell, in great need of funds, murdered his wife by hitting her on the head with a slug shot. He then took her body to the yard of the house in which they were living, bent a poker, and covered it with his wife’s blood, so that it would be accepted as the instrument that inflicted the blow, and having unbolted the gate leading to the street, left it ajar, and went to bed. In the morning, when the servant arose, she stumbled over the dead body of her mistress, and in great terror she rushed through the gate, into the street, and summoned the police. The servant had always been in the habit of unbolting this gate the first thing each morning, and she swore on the trial that she had done the same thing upon the morning of the murder. There was no other way the house could have been entered from without excepting through this gate. The servant’s testimony was, therefore, conclusive that the murder had been committed by some one from within the house, and Twichell was the only other person in the house.

After the conviction Twichell confessed his guilt to his lawyer and explained to him how careful he had been to pull back the bolt and leave the gate ajar for the very purpose of diverting suspicion from himself. The servant in her excitement had failed either to notice that the bolt was drawn or that the gate was open, and in recalling the circumstance later she had allowed her usual daily experience and habit of pulling back the bolt to become incorporated into her recollection of this particular morning. It was this piece of fallacious testimony that really convicted the prisoner.

As the day of the execution drew near, Twichell complained to the prison authorities that the print in the prison Bible was too fine for him to read, and requested that his friend — a druggist — be allowed to supply him with a Bible in larger type. This friend saturated some of the pages of the Bible with corrosive sublimate. Twichell rolled these pages up into balls, and, with the aid of water, swallowed them. Death was almost instantaneous.

Boswell in his “Life of Dr. Johnson,”[37] has related the particulars of his first meeting with Dr. Johnson, whom he had been long very desirous of seeing and conversing with. At last they accidentally met at the house of a Mr. Davies.

Mr. Arthur Murphy, in his “Essay on the Life and Genius of Dr. Johnson,” likewise gives a description of Boswell’s first meeting with Johnson. Concerning Mr. Murphy’s account of the matter, Mr. Boswell says: “Mr. Murphy has given an account of my first meeting with Dr. Johnson considerably different from my own, and I am persuaded, without any consciousness of error, his memory at the end of near thirty years has undoubtedly deceived him, and he supposes himself to have been present at a scene which he has probably heard inaccurately described by others. In my own notes, taken on the very day in which I am confident I marked everything material that passed, no mention is made of this gentleman; and I am sure that I should not have omitted one so well-known in the literary world. It may easily be imagined that this, my first interview with Dr. Johnson, with all its circumstances, made a strong impression on my mind and would be registered with peculiar attention.”

A writer in the Quarterly Review,[38] speaking of this same occurrence, says: “An erroneous account of Boswell’s first introduction to Dr. Johnson was published by Arthur Murphy, who asserted that he witnessed it. Boswell’s appeal to his own strong recollection of so memorable an occasion and to the narrative he entered in his Journal at the time show that Murphy’s account was quite inaccurate, and that he was not present at the scene. This, Murphy did not later venture to contradict. As Boswell suggested, he had doubtless heard the circumstances repeated till at the end of thirty years he had come to fancy that he was an actor in them. His good faith was unquestionable, and that he should have been so deluded is a memorable example of the fallibility of testimony and of the extreme difficulty of arriving at the truth.”

Perhaps the most subtle and prolific of all of the “fallacies of testimony” arises out of unconscious partisanship. It is rare that one comes across a witness in court who is so candid and fair that he will testify as fully and favorably for the one side as the other.

It is extraordinary to mark this tendency we all have when once we are identified with a “side” or cause, to accept all its demands as our own. To put on the uniform makes the policeman or soldier, even when in himself corrupt, a guardian of law and order.

Witnesses in court are almost always favorable to the party who calls them, and this feeling induces them to conceal some facts and to color others which might, in their opinion, be injurious to the side for which they give their testimony. This partisanship in the witness box is most fatal to fair evidence; and when we add to the partisanship of the witness the similar leaning of the lawyer who is conducting the examination, it is easy to produce evidence that varies very widely from the exact truth. This is often done by overzealous practitioners by putting leading questions or by incorporating two questions into one, the second a simple one, misleading the witness into a “yes” for both, and thus creating an entirely false impression.

What is it in the human make-up which invariably leads men to take sides when they come into court? In the first place, witnesses usually feel more or less complimented by the confidence that is placed in them by the party calling them to prove a certain state of facts, and it is human nature to try to prove worthy of this confidence. This feeling is unconscious on the part of the witness and usually is not a strong enough motive to lead to actual perjury in its full extent, but it serves as a sufficient reason why the witness will almost unconsciously dilute or color the evidence to suit a particular purpose and perhaps add only a bit here, or suppress one there, but this bit will make all the difference in the meaning.

Many men in the witness-box feel and enjoy a sense of power to direct the verdict toward the one side or the other, and cannot resist the temptation to indulge it and to be thought a “fine witness” for their side. I say their side; the side for which they testify always becomes their side the moment they take the witness chair, and they instinctively desire to see that side win, although they may be entirely devoid of any other interest in the case whatsoever.

It is a characteristic of the human race to be intensely interested in the success of some one party to a contest, whether it be a war, a boat race, a ball game, or a lawsuit. This desire to win seldom fails to color the testimony of a witness and to create fallacies and inferences dictated by the witness’s feelings, rather than by his intellect or the dispassionate powers of observation.

Many witnesses take the stand with no well-defined motive of what they are going to testify to, but upon discovering that they are being led into statements unfavorable to the side on which they are called, experience a sudden dread of being considered disloyal, or “going back on” the party who selected them, and immediately become unconscious partisans and allow this feeling to color or warp their testimony.

There is still another class of persons who would not become witnesses for either side unless they felt that some wrong or injustice had been done to one of the parties, and thus to become a witness for the injured party seems to them to be a vindication of the right. Such witnesses allow their feelings to become enlisted in what they believe to be a cause of righteousness, and this in turn enlists their sympathy and feelings and prompts them to color their testimony as in the case of those influenced by the other motives already spoken of.

One sees, perhaps, the most marked instances of partisanship in admiralty cases which arise out of a collision between two ships. Almost invariably all the crew on one ship will testify in unison against the opposing crew, and, what is more significant, such passengers as happen to be on either ship will almost invariably be found corroborating the stories of their respective crews.

It is the same, in a lesser degree, in an ordinary personal injury case against a surface railway. Upon the happening of an accident the casual passengers on board a street car are very apt to side with the employees in charge of the car, whereas the injured plaintiff and whatever friends or relatives happen to be with him at the time, will invariably be found upon the witness-stand testifying against the railway company.

It is difficult to point out the methods that should be employed by the cross-examiner in order to expose to a jury the particular source of the fallacy that has warped the judgment, choked the conscience, or blinded the intelligence, of any particular witness. It must necessarily all depend upon the circumstances arising in each particular case. All I have attempted to do is to draw attention to the usual sources of these fallacies, and I must perforce leave it to the ingenuity of the trial lawyer to work out his own solution when the emergency arises. This he certainly would never be able to do successfully, unless he had given careful thought and study to this branch of his professional equipment.

The subject is a great one, and rarely, if ever, discussed by law writers, who usually pass it by with the bare suggestion that it is a topic worthy of deep investigation upon the proper occasion. I trust that my few suggestions may serve as a stimulus to some philosophic legal mind to elaborate and elucidate the reasons for the existence of this flaw in the human mechanism, which appears to be the chief stumbling block in our efforts to arrive at truth in courts of justice.

CHAPTER IX. CROSS-EXAMINATION TO PROBABILITIES — PERSONALITY OF THE EXAMINER, ETC.

In delivering one of his celebrated judgments Lord Mansfield said: “As mathematical and absolute certainty is seldom to be attained in human affairs, reason and public utility require that judges and all mankind in forming their opinion of the truth of facts should be regulated by the superior number of probabilities on the one side or the other.”

Theoretically the goal we all strive for in litigation is the probable truth. It is therefore in this effort to develop the probabilities in any given case, that a trial lawyer is called upon for the exercise of the most active imagination and profound knowledge of men and things.

It requires but little experience in court to arrive at the conclusion that the great majority of cases are composed of a few principal facts surrounded by a host of minor ones; and that the strength of either side of a case depends not so much upon the direct testimony relating to these principal facts alone, but, as one writer very tersely puts it, “upon the support given them by the probabilities created by establishing and developing the relation of the minor facts in the case.”

One of the latest causes of any importance, tried in our New York courts this year, afforded an excellent illustration of the relative importance of the main facts in a case to the multitudinous little things which surround any given issue, and which when carefully gathered together and skilfully grouped, create the probabilities of a case. The suit was upon an oral agreement for the purchase and sale of a large block of mining stock with an alleged guaranty against loss. The plaintiff and defendant were both gentlemen holding prominent positions in the business world and of unquestioned integrity and veracity. The only issue in the case was the simple question, which one was correct in his memory of a conversation that had occurred five years before. The plaintiff swore there was an agreement by the defendant to repurchase the stock from him, at the price paid, at plaintiff’s option. The defendant swore no such conversation ever took place. Where was the truth? The direct yea and nay of this proposition occupied about five minutes of the court’s time. The surrounding circumstances, the countless straws pointing to the probabilities on the one side or the other, occupied three full days, and no time was wasted.

In almost every trial there are circumstances which at first may appear light, valueless, even disconnected, but which, if skilfully handled, become united together and at last form wedges which drive conviction into the mind. This is obviously the business of the cross-examiner, although it is true that the examination of one’s own witnesses, as well, often plays an important part in the development of probabilities.

All men stamp as probable or improbable that which they themselves would, or would not, have said or done under similar circumstances. “As in water, face answereth to face, so the heart of man to man.”[39] Things inconsistent with human knowledge and experience are properly rated as improbable. It was Aristotle who first said, “Probability is never detected bearing false testimony.”

Apart from experience in human affairs and the resultant knowledge of men, it is industry and diligent preparation for the trial which will enable an advocate to handle the circumstances surrounding: the main facts in a case with the greatest effect upon a judge or jury.

One who has thought intently upon a subject which he is going to develop later on in a court, and has sought diligently for signs or “straws” to enable him to discover the true solution of a controversy, will, when the occasion arises upon the trial, catch and apply facts which a less thoughtful person would pass by almost unnoticed. Careful study of his case before he comes into court will usually open to an advocate avenues for successful cross-examinations to the probabilities of a story, which will turn out to be his main arguments for a successful verdict in his favor.

“It is acute knowledge of human nature, thorough preliminary survey of the question and of the interests involved, and keen imagination which enable the questioner to see all the possibilities of a case. It is a cautious good judgment that prevents him from assuming that to be true which he only imagines may be true, and professional self-restraint that enables him to pass by all opportunities which may give a witness a chance for successful fencing.”[40]

In the search for the probable it is often wise to use questions that serve for little more than a suggestion of the desired point. Sir James Scarlett used to allow the jurors and even the judges to discover for themselves the best parts of his case. It flattered their vanity. Scarlett went upon the theory, he tells us in the fragments of his autobiography which were completed before his death, that whatever strikes the mind of a juror as the result of his own observation and discovery makes always the strongest impression upon him, and the juror holds on to his own discovery with the greatest tenacity and often, possibly, to the exclusion of every other fact in the case.

This search for probabilities, however, is a hazardous occupation for the inexperienced. There is very great danger of bringing out some incidental circumstance that serves only to confirm or corroborate the statements of a witness made before the cross-examination began. Thus one not only stumbles upon a new circumstance in favor of his opponent, but the fact that it came to light during the cross-examination instead of in the direct multiplies its importance in the eyes of a jury; for it has often been said, and it is a well-recognized fact, that accidental testimony always makes a greater impression on a juror’s mind than that deliberately and designedly given.

Another danger in this hazardous method of cross-examination is the development of such a mass of material that the minds of the jurors become choked and unable to follow intelligently. If one cannot make his points stand out clearly during his cross-examination, he had better keep his seat. It used to be said of Law, a famous English barrister, that “he wielded a huge two handed sword to extract a fly from a spider’s web.”

At the end of a long but unsuccessful cross-examination of a plaintiff, the kind we have been discussing, an inexperienced trial lawyer once remarked rather testily, “Well, Mr. Whittemore, you have contrived to manage your case pretty well.” “Thank you, counselor,” replied the witness, with a twinkle in his eye, “perhaps I might return the compliment if I were not testifying under oath.”

It so frequently happens that a lawyer who has made a failure of his cross-examination accentuates that failure by a careless side remark, instead of a dignified retreat, that I cannot refrain from relating another anecdote, in this connection, to illustrate the danger of such side remarks; for I am of the opinion that there is no surer way to avoid such occurrences than to have ever present in one’s mind the mistakes of others.

One of the most distinguished practitioners in the criminal courts of the city of Philadelphia was prosecuting a case for the government. His witnesses had been subjected to a very vehement cross-examination by the counsel for the prisoner, but with very little effect upon the jury. Counsel for the prisoner resumed his seat quietly, recognizing his failure, but content to wait for another opportunity. After the testimony for the state had closed, the prosecuting attorney arose and foolishly remarked, “Now, Mr. Ingraham, I give you fair warning, after the way you have treated my witnesses, I intend to handle your witnesses without gloves.” “That is more than any one would care to do with yours, my friend,” replied Mr. Ingraham; and the dirt seemed, somehow, to stick to the state witnesses throughout the trial.

An excellent example of effective cross-examination to the circumstances surrounding the main question in a case — the genuineness of a signature — will be found in Bigelow’s “Bench and Bar.” The issue was the forgery of a will; the proponent was a man of high respectability and good social standing, who had an indirect interest to a large amount, if the will, as offered, was allowed to be probated. Samuel Warren, the author of “Ten Thousand a Year,” conducted the cross-examination.

Warren (placing his thumb over the seal and holding up the will): “I understand you to say you saw the testator sign this instrument?”

Witness: “I did.”

Warren: “And did you sign it at his request, as subscribing witness?”

Witness: “I did.”

Warren: “Was it sealed with red or black wax?”

Witness: “With red wax.”

Warren: “Did you see him seal it with red wax?”

Witness: “I did.”

Warren: “Where was the testator when he signed and sealed this will?”

Witness: “In his bed.”

Warren: “Pray, how long a piece of red wax did he use?”

Witness: “About three inches long.”

Warren: “And who gave the testator this piece of wax?”

Witness: “I did.”

Warren: “Where did you get it?”

Witness: “From the drawer of his desk.”

Warren: “How did he melt that piece of wax?”

Witness: “With a candle.”

Warren: “Where did the candle come from?”

Witness: “I got it out of a cupboard in the room.”

Warren: “How long should you say the candle was?”

Witness: “Perhaps four or five inches long.”

Warren: “Do you remember who lit the candle?”

Witness: “I lit it.”

Warren: “What did you light it with?”

Witness: “Why, with a match.”

Warren: “Where did you get the match?”

Witness: “On the mantel-shelf in the room.”

Here Mr. Warren paused, and fixing his eye upon the prisoner, he again held up the will, his thumb still resting upon the seal, and said in a solemn, measured tone: —

Warren: “Now, sir, upon your solemn oath, you saw the testator sign this will — he signed it in his bed — at his request you signed it as a subscribing witness — you saw him seal it — it was with red wax he sealed it — a piece of wax about three inches long — he lit the wax with a piece of candle which you procured from a cupboard — you lit the candle with a match which you found on a mantel-shelf?”

Witness: “I did.”

Warren: “Once more, sir — upon your solemn oath, you did?”

Witness: “I did.”

Warren: “My lord, you will observe this will is sealed with a wafer!”

In “Irish Wit and Humor” there is given an illustration of the dexterity of Daniel O’Connell in bringing about his client’s acquittal by a very simple ruse of cross-examination.

O’Connell was employed in defending a prisoner who was tried for a murder committed in the vicinity of Cork. The principal witness swore strongly against the prisoner — one corroborative circumstance was that the prisoner’s hat was found near the place where the murder was committed. The witness swore positively that the hat produced was the one found, and that it belonged to the prisoner, whose first name was James.

O’Connell: “By virtue of your oath, are you positive that this is the same hat?”

Witness: “I am.”

O’Connell: “Did you examine it carefully before you swore in your information that it was the property of the prisoner?”

Witness: “I did.”

O’Connell (taking up the hat and examining the inside carefully, at the same time spelling aloud the name “James”): “Now let me see — ‘J-A-M-E-S’ — do you mean those letters were in the hat when you found it?”

Witness: “I do.”

O’Connell: “Did you see them there?”

Witness: “I did.”

O’Connell: “And you are sure this is the same hat?”

Witness: “I am sure.”

O’Connell (holding up the hat to the Bench): “Now, my lord, I submit this is an end of this case. There is no name whatever inscribed in this hat!”

Akin to the effect produced upon a jury by the probabilities in a case is the personal conviction of the lawyer who is conducting it. A man who genuinely and thoroughly believes in his own case will make others agree with him, often though he may be in the wrong.

Rufus Choate once said, “I care not how hard the case is — it may bristle with difficulties — if I feel I am on the right side, that case I win.”

It is this personal consciousness of right that has a strong moral and mental effect upon one’s hearers. In no way can a lawyer more readily communicate to the minds of the jury his personal belief in his case than in his method and manner of developing, throughout his examinations, the probability or improbability of the tale which is being unfolded to them. In fact, it is only through his examinations of the witnesses and general conduct of the trial, and his own personal deportment, that a lawyer is justified in impressing upon the jury his individual belief regarding the issues in the case. The expression in words of a lawyer’s opinion is not only considered unprofessional, but produces an entirely different effect upon a juror from the influence which comes from earnestness and the profound conviction of the righteousness of the cause advocated.

Writing upon this branch of the subject, Senator Hoar says:[41] “It is not a lawyer’s duty or his right to express his individual opinion. On him the responsibility of the decision does not rest. He not only has no right to accompany the statement of his argument with any assertion as to his individual belief, but I think the most experienced observers will agree that such expressions, if habitual, tend to diminish and not to increase the just influence of the lawyer.... There never was a weightier advocate before New England juries than Daniel Webster. Yet it is on record that he always carefully abstained from any positiveness of assertion. He introduced his weightiest arguments with such phrases as, ‘It will be for the jury to consider,’ ‘It may, perhaps, be worth thinking of, gentlemen,’ or some equivalent phrase, by which he kept scrupulously off the ground which belonged to the tribunal he was addressing.”

But an advocate is justified in arousing in the minds of a jury all the excitement which he feels about the case himself. If he feels he is in the right, he can show it in a hundred different ways which cannot fail to have their effect upon his hearers. It was Gladstone’s profound seriousness that most impressed itself upon everything that he said. He always made the impression upon his hearers that the matter he was discussing was that upon which the foundations of heaven and earth rested. Rufus Choate’s heart was always in the courthouse. “No gambler ever hankered for the feverish delight of the gaming-table as Choate did for the absorbing game, half-chance, half-skill, where twelve human dice must all turn up together one way, or there is no victory.... It was a curious sight to see on a jury twelve hard-headed and intelligent countrymen — farmers, town officers, trustees, men chosen by their neighbors to transact their important affairs — after an argument by some clear-headed lawyer for the defence about some apparently not very doubtful transaction, who had brought them all to his way of thinking, and had warned them against the wiles of the charmer, when Choate rose to reply for the plaintiff — to see their look of confidence and disdain — You needn’t try your wiles upon me.’ The shoulder turned a little against the speaker — the averted eye — and then the change; first, the changed posture of the body; the slight opening of the mouth; then the look, first, of curiosity, and then of doubt, then of respect; the surrender of the eye to the eye of the great advocate; then the spell, the charm, the great enchantment — till at last, jury and audience were all swept away, and followed the conqueror captive in his triumphal march.”[42]

Sir James Scarlett, England’s greatest verdict getter, always had an appearance of confidence in himself and his cause which begot a feeling of confidence in all who listened to him. He used to “wind himself into a case like a great serpent.” He always had about him “a happy mixture of sparkling intelligence and good nature, which told amazingly with juries.” A writer in the Britannia gives the following graphic description of Scarlett’s appearance in court: “A spectator unacquainted with the courts might have supposed that anybody rather than the portly full-faced, florid man, who was taking his ease on the comfortable cushions of the front row, was the counsel engaged in the cause. Or if he saw him rise and cross-examine a witness, he would be apt to think him certainly too indolent to attend properly to his business, so cool, indifferent, and apparently unconcerned was the way in which the facts which his questions elicited were left to their fate, as though it were of no consequence whether they were attended to or not. Ten to one with him that the plaintiff’s counsel would get the verdict, so clear seemed the case and so slight the opposition. But in the course of time the defendant’s turn would come; and then the large-headed, ruddy-faced, easy-going advocate would rise slowly from his seat, not standing quite upright, but resting on his left hand placed upon the bar, and turning sideways to the jury to commence the defence of his client. Still the same unpretending nonchalant air was continued; it almost seemed too great an exertion to speak; the chin of that ample face rested upon the still more ample chest as though the motion of the lips alone would be enough for all that might have to be said. So much for the first impression. A few moments’ reflection sufficed to dispel the idea that indolence had anything to do with the previous quiescence of the speaker. Now it became clear that all the while he seemed to have been taking his ease bodily, he had been using his powers of observation and his understanding. That keen gray eye had not stolen glances at the jury, nor at the witnesses either, for nothing. Nor had those abandoned facts, drawn out in cross-examination, been unfruitful seeds or cast in barren places. Low as the tone of voice was, it was clear and distinct. It was not a mere organ of sound, but a medium of communication between the mind of the advocate and the minds of the jury. Sir James Scarlett did not attempt, like Denman or Brougham, to carry the feelings of a jury by storm before a torrent of invective or of eloquence; nor was there any obvious sophistry, such as occupied too large a space in the speeches of Campbell or Wilde; it was with facts — admitted, omitted or slurred over, as best suited his purpose — and with inferences made obvious in spite of prepossessions created by the other side, that this remarkable advocate achieved his triumphs.”

Personal magnetism is, perhaps, the most important of all the attributes of a good trial lawyer. Those who possess it never fully realize it themselves and only partially, perhaps, when under the influence of a large audience. There is nothing like an audience as a stimulant to every faculty. The cross-examiner’s questions seem to become vitalized with his knowledge of the topic of inquiry and his own shrewd discernment of the situation of the witness and the relation which the witness’s interest and feelings bear to the topic. His force becomes almost irresistible, but it is a force in questions, a force aroused in the mind of the witness, not in the voice of the questioner. He seems to be able to concentrate all the attention of his hearers upon the vital points in the case; he imparts weight and solidity to all he touches; he unconsciously elevates the merits of his case; he comes almost intuitively to perceive the elements of truth or falsehood in the face itself of the narrative, without any regard to the narrator, and new and undreamed-of avenues of attacking the testimony seem to spring into being almost with the force of inspiration.

Such is the life and such the experiences of the trial lawyer. But I cannot leave this branch of the subject without one sentiment in behalf of the witness, as distinguished from the lawyer, by quoting the following amusing lamentation, which has found its way into public print: —

“Of all unfortunate people in this world, none are more entitled to sympathy and commiseration than those whom circumstances oblige to appear upon the witness-stand in court. You are called to the stand and place your hand upon a copy of the Scriptures in sheepskin binding, with a cross on the one side and none on the other, to accommodate either variety of the Christian faith. You are then arraigned before two legal gentlemen, one of whom smiles at you blandly because you are on his side, the other eying you savagely for the opposite reason. The gentleman who smiles, proceeds to pump you of all you know; and having squeezed all he wants out of you, hands you over to the other, who proceeds to show you that you are entirely mistaken in all your suppositions; that you never saw anything you have sworn to; that you never saw the defendant in your life; in short, that you have committed direct perjury. He wants to know if you have ever been in state prison, and takes your denial with the air of a man who thinks you ought to have been there, asking all the questions over again in different ways; and tells you with an awe-inspiring severity, to be very careful what you say. He wants to know if he understood you to say so and so, and also wants to know whether you meant something else. Having bullied and scared you out of your wits, and convicted you in the eye of the jury of prevarication, he lets you go. By and by everybody you have fallen out with is put on the stand to swear that you are the biggest scoundrel they ever knew, and not to be believed under oath. Then the opposing counsel, in summing up, paints your moral photograph to the jury as a character fit to be handed down to time as the type of infamy — as a man who has conspired against innocence and virtue, and stood convicted of the attempt. The judge in his charge tells the jury if they believe your testimony, etc., indicating that there is even a judicial doubt of your veracity; and you go home to your wife and family, neighbors and acquaintances, a suspected man — all because of your accidental presence on an unfortunate occasion!”

CHAPTER X. CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES

The preceding chapters have been devoted to the legitimate uses of cross-examination — the development of truth and exposure of fraud.

Cross-examination as to credit has also its legitimate use to accomplish the same end; but this powerful weapon for good has almost equal possibilities for evil. It is proposed in the present chapter to demonstrate that cross-examination as to credit should be exercised with great care and caution, and also to discuss some of the abuses of cross-examination by attorneys, under the guise and plea of cross-examination as to credit.

Questions which throw no light upon the real issues in the case, nor upon the integrity or credit of the witness under examination, but which expose misdeeds, perhaps long since repented of and lived down, are often put for the sole purpose of causing humiliation and disgrace. Such inquiries into private life, private affairs, or domestic infelicities, perhaps involving innocent persons who have nothing to do with the particular litigation and who have no opportunity for explanation nor means of redress, form no legitimate part of the cross-examiner’s art. The lawyer who allows himself to become the mouthpiece of the spite or revenge of his client may inflict untold suffering and unwarranted torture. Such questions may be within the legal rights of counsel in certain instances, but the lawyer who allows himself to be led astray by his zeal or by the solicitations of his client, at his elbow, ready to make any sacrifice to humiliate his adversary, thereby debauches his profession and surrenders his self-respect, for which an occasional verdict, won from an impressionable jury by such methods, is a poor recompense.

To warrant an investigation into matters irrelevant to the main issues in the case, and calculated to disgrace the witness or prejudice him in the eyes of the jury, they must at least be such as tend to impeach his general moral character and his credibility as a witness. There can be no sanction for questions that tend simply to degrade the witness personally, and which can have no possible bearing upon his veracity.

In all that has preceded we have gone upon the presumption that the cross-examiner’s art would be used to further his client’s cause by all fair and legitimate means, not by misrepresentation, insinuation, or by knowingly putting a witness in a false light before a jury. These methods doubtless succeed at times, but he who practises them acquires the reputation, with astounding rapidity, of being “smart,” and finds himself discredited not only with the court, but in some almost unaccountable way, with the very juries before whom he appears. Let him once get the reputation of being “unfair” among the habitues of the court-house, and his usefulness to clients as a trial lawyer is gone forever. Honesty is the best policy quite as much with the advocate as in any of the walks of life.

Counsel may have in his possession material for injuring the witness, but the propriety of using it often becomes a serious question even in cases where its use is otherwise perfectly legitimate. An outrage to the feelings of a witness may be quickly resented by a jury, and sympathy take the place of disgust. Then, too, one has to reckon with the judge, and the indignation of a strong judge is not wisely provoked. Nothing could be more unprofessional than for counsel to ask questions which disgrace not only the witness, but a host of innocent persons, for the mere reason that the client wishes them to be asked.

There could be no better example of the folly of yielding to a client’s hatred or desire for revenge than the outcome of the famous case in which Mrs. Edwin Forrest was granted a divorce against her husband, the distinguished tragedian. Mrs. Forrest, a lady of culture and refinement, demanded her divorce upon the ground of adultery, and her husband had made counter-charges against her. At the trial (1851) Charles O’Connor, counsel for Mrs. Forrest, called as his first witness the husband himself, and asked him concerning his infidelities in connection with a certain actress. John Van Buren, who appeared for Edwin Forrest, objected to the question on the ground that it required his client to testify to matters that might incriminate him. The question was not allowed, and the husband left the witness-stand. After calling a few unimportant witnesses, O’Connor rested the case for plaintiff without having elicited any tangible proof against the husband. Had a motion to take the case from the jury been made at this time, it would of necessity have been granted, and the wife’s suit would have failed. It is said that when Mr. Van Buren was about to make such a motion and end the case, Mr. Forrest directed him to proceed with the testimony for the defence, and develop the nauseating evidence he had accumulated against his wife. Van Buren yielded to his client’s wishes, and for days and weeks continued to call witness after witness to the disgusting details of Mrs. Forrest’s alleged debauchery. The case attracted great public attention and was widely reported by the newspapers. The public, as so often happens, took the opposite view of the evidence from the one the husband had anticipated. Its very revolting character aroused universal sympathy on the wife’s behalf. Mr. O’Connor soon found himself flooded with offers of evidence, anonymous and otherwise, against the husband, and when Van Buren finally closed his attack upon the wife, O’Connor was enabled, in rebuttal, to bring such an avalanche of convincing testimony against the defendant that the jury promptly exonerated Mrs. Forrest and granted her the divorce. At the end of the first day’s trial the case could have been decided in favor of the husband, had a simple motion to that effect been made; but, yielding to his client’s hatred of his wife, and after a hard- fought trial of thirty-three days, Mr. Van Buren found both himself and his client ignominiously defeated. This error of Mr. Van Buren’s was widely commented on by the profession at the time. He had but lately resigned his office at Albany as attorney general, and up to the time of this trial had acquired no little prestige in his practice in the city of New York, which, however, he never seemed to regain after his fatal blunder in the Forrest divorce case.[43]

The abuse of cross-examination has been widely discussed in England in recent years, partly in consequence of the cross-examination of a Mrs. Bravo, whose husband had died by poison. He had lived unhappily with her on account of the attentions of a certain physician. During the inquiry into the circumstances of her husband’s death, the story of the wife’s intrigue was made public through her cross-examination. Sir Charles Russell, who was then regarded as standing at the head of the Bar, both in the extent of his business and in his success in court, and Sir Edward Clark, one of her Majesty’s law officers, with a high reputation for ability in jury trials, were severely criticised as “forensic bullies,” and complained of as “lending the authority of their example to the abuse of cross-examination to credit which was quickly followed by barristers of inferior positions, among whom the practice was spreading of assailing witnesses with what was not unfairly called a system of innuendoes, suggestions, and bullying from which sensitive persons recoil.” And Mr. Charles Gill, one of the many imitators of Russell’s domineering style, was criticised as “bettering the instructions of his elders.”

The complaint against Russell was that by his practices as displayed in the Osborne case — robbery of jewels — not only may a man’s, or a woman’s, whole past be laid bare to malignant comment and public curiosity, but there is no means afforded by the courts of showing how the facts really stood or of producing evidence to repel the damaging charges.

Lord Bramwell, in an article published originally in Nineteenth Century for February, 1892, and republished in legal periodicals all over the world, strongly defends the methods of Sir Charles Russell and his imitators. Lord Bramwell claimed to speak after an experience of forty-seven years’ practice at the Bar and on the bench, and long acquaintance with the legal profession.

“A judge’s sentence for a crime, however much repented of, is not the only punishment; there is the consequent loss of character in addition, which should confront such a person whenever called to the witness stand.” “Women who carry on illicit intercourse, and whose husbands die of poison, must not complain at having the veil that ordinarily screens a woman’s life from public inquiry rudely torn aside.” “It is well for the sake of truth that there should be a wholesome dread of cross-examination.” “It should not be understood to be a trivial matter, but rather looked upon as a trying ordeal.” “None but the sore feel the probe.” Such were some of the many arguments of the various upholders of broad license in examinations to credit.

Lord Chief Justice Cockburn took the opposite view of the question. “I deeply deplore that members of the Bar so frequently unnecessarily put questions affecting the private life of witnesses, which are only justifiable when they challenge the credibility of a witness. I have watched closely the administration of justice in France, Germany, Holland, Belgium, Italy, and a little in Spain, as well as in the United States, in Canada, and in Ireland, and in no place have I seen witnesses so badgered, browbeaten, and in every way so brutally maltreated as in England. The way in which we treat our witnesses is a national disgrace and a serious obstacle, instead of aiding the ends of justice. In England the most honorable and conscientious men loathe the witness-box. Men and women of all ranks shrink with terror from subjecting themselves to the wanton insult and bullying misnamed cross-examination in our English courts. Watch the tremor that passes the frames of many persons as they enter the witness-box. I remember to have seen so distinguished a man as the late Sir Benjamin Brodie shiver as he entered the witness-box. I daresay his apprehension amounted to exquisite torture. Witnesses are just as necessary for the administration of justice as judges or jurymen, and are entitled to be treated with the same consideration, and their affairs and private lives ought to be held as sacred from the gaze of the public as those of the judges or the jurymen. I venture to think that it is the duty of a judge to allow no questions to be put to a witness, unless such as are clearly pertinent to the issue before the court, except where the credibility of the witness is deliberately challenged by counsel and that the credibility of a witness should not be wantonly challenged on slight grounds.”[44]

The propriety or impropriety of questions to credit is of course largely addressed to the discretion of the court. Such questions are generally held to be fair when, if the imputation they convey be true, the opinion of the court would be seriously affected as to the credibility of the witness on the matter to which he testifies; they are unfair when the imputation refers to matters so remote in time, or of such character that its truth would not affect the opinion of the court; or if there be a great disproportion between the importance of the imputation and the importance of the witness’s evidence.[45]

A judge, however, to whose discretion such questions are addressed in the first instance, can have but an imperfect knowledge of either side of the case before him. He cannot always be sure, without hearing all the facts, whether the questions asked would or would not tend to develop the truth rather than simply degrade the witness. Then, again, the mischief is often done by the mere asking of the question, even if the judge directs the witness not to answer. The insinuation has been made publicly — the dirt has been thrown. The discretion must therefore after all be largely left to the lawyer himself. He is bound in honor, and out of respect to his profession, to consider whether the question ought in conscience to be asked — whether in his own honest judgment it renders the witness unworthy of belief under oath — before he allows himself to ask it. It is much safer, for example, to proceed upon the principle that the relations between the sexes has no bearing whatever upon the probability of the witness telling the truth, unless in the extreme case of an abandoned woman.

In criminal prosecutions the district attorney is usually regarded by the jury much in the light of a judicial officer and, as such, unprejudiced and impartial. Any slur or suggestion adverse to a prisoner’s witness coming from this source, therefore, has an added power for evil, and is calculated to do injustice to the defendant. There have been many flagrant abuses of this character in the criminal courts of our own city. “Is it not a fact that you were not there at all?” “Has all this been written out for you?” “Is it not a fact that you and your husband have concocted this whole story?” “You have been a witness for your husband in every lawsuit he has had, have you not?” — were all questions that were recently criticised by the court, on appeal, as “innuendo,” and calculated to prejudice the defendant — by the Michigan Supreme Court in the People vs. Cahoon — and held sufficient, in connection with other similar errors, to set the conviction aside.

Assuming that the material with which you propose to assail the credibility of a witness fully justifies the attack, the question then arises, How to use this material to the best advantage? The sympathies of juries are keen toward those obliged to confess their crimes on the witness-stand. The same matters may be handled to the advantage or positive disadvantage of the cross-examiner. If you hold in your possession the evidence of the witness’s conviction, for example, but allow him to understand that you know his history, he will surely get the better of you. Conceal it from him, and he will likely try to conceal it from you, or lie about it if necessary. “I don’t suppose you have ever been in trouble, have you?” will bring a quick reply, “What trouble?” — “Oh, I can’t refer to any particular trouble. I mean generally, have you ever been in jail?” The witness will believe you know nothing about him and deny it, or if he has been many times convicted, will admit some small offence and attempt to conceal everything but what he suspects you know already about him. This very attempt to deceive, if exposed, will destroy him with the jury far more effectually than the knowledge of the offences he has committed. On the other hand, suppose you taunt him with his crime in the first instance; ten to one he will admit his wrong-doing in such a way as to arouse toward himself the sympathy of the jury and their resentment toward the lawyer who was unchristian enough to uncover to public view offences long since forgotten.

Chief Baron Pollock once presided at a case where a witness was asked about a conviction years gone by, though his (the witness’s) honesty was not doubted. The baron burst into tears at the answer of the witness.

In the Bellevue Hospital case (the details of which are fully described in a subsequent chapter), and during the cross-examination of the witness Chambers, who was confined in the Pavilion for the Insane at the time, the writer was imprudent enough to ask the witness to explain to the jury how he came to be confined on Ward’s Island, only to receive the pathetic reply: “I was sent there because I was insane. You see my wife was very ill with locomotor ataxia. She had been ill a year; I was her only nurse. I tended her day and night. We loved each other dearly. I was greatly worried over her long illness and frightful suffering. The result was, I worried too deeply; she had been very good to me. I overstrained myself, my mind gave way; but I am better now, thank you.”

CHAPTER XI. SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS

One of the best ways to acquire the art of cross-examination is to study the methods of the great cross-examiners who serve as models for the legal profession.

Indeed, nearly every great cross-examiner attributes his success to the fact of having had the opportunity to study the art of some great advocate in actual practice.

In view of the fact also that a keen interest is always taken in the personality and life sketches of great cross-examiners, it has seemed fitting to introduce some brief sketches of great cross-examiners, and to give some illustrations of their methods.

Sir Charles Russell, Lord Russell of Killowen, who died in February, 1901, while he was Lord Chief Justice of England, was altogether the most successful cross-examiner of modern times. Lord Coleridge said of him while he was still practising at the bar, and on one side or the other in nearly every important case tried, “Russell is the biggest advocate of the century.”

It has been said that his success in cross-examination, like his success in everything, was due to his force of character. It was his striking personality, added to his skill and adroitness, which seemed to give him his overwhelming influence over the witnesses whom he cross-examined. Russell is said to have had a wonderful faculty for using the brain and knowledge of other men. Others might possess a knowledge of the subject far in excess of Russell, but he had the reputation of being able to make that knowledge valuable and use it in his examination of a witness in a way altogether unexpected and unique.

Unlike Rufus Choate, “The Ruler of the Twelve,” and by far the greatest advocate of the century on this side of the water, Russell read but little. He belonged to the category of famous men who “neither found nor pretended to find any real solace in books.” With Choate, his library of some eight thousand volumes was his home, and “his authors were the loves of his life.” Choate used to read at his meals and while walking in the streets, for books were his only pastime. Neither was Russell a great orator, while Choate was ranked as “the first orator of his time in any quarter of the globe where the English language was spoken, or who was ever seen standing before a jury panel.”

Both Russell and Choate were consummate actors; they were both men of genius in their advocacy. Each knew the precise points upon which to seize; each watched every turn of the jury, knew at a glance what was telling with them, knew how to use to the best advantage every accident that might arise in the progress of the case.

“One day a junior was taking a note in the orthodox fashion. Russell was taking no note, but he was thoroughly on the alert, glancing about the court, sometimes at the judge, sometimes at the jury, sometimes at the witness or the counsel on the other side. Suddenly he turned to the junior and said, ‘What are you doing?’ ‘Taking a note,’ was the answer. What the devil do you mean by saying you are taking a note? Why don’t you watch the case?’ he burst out. He had been ‘watching’ the case. Something had happened to make a change of front necessary, and he wheeled his colleagues around almost before they had time to grasp the new situation.”[46]

Russell’s maxim for cross-examination was, “Go straight at the witness and at the point; throw your cards on the table, mere finesse English juries do not appreciate.”

Speaking of Russell’s success as a cross-examiner, his biographer, Barry O’Brien says: “It was a fine sight to see him rise to cross-examine. His very appearance must have been a shock to the witness, — the manly, defiant bearing, the noble brow, the haughty look, the remorseless mouth, those deep-set eyes, widely opened, and that searching glance which pierced the very soul. ‘Russell,’ said a member of the Northern Circuit, ‘produced the same effect on a witness that a cobra produces on a rabbit.’ In a certain case he appeared on the wrong side. Thirty-two witnesses were called, thirty-one on the wrong side, and one on the right side. Not one of the thirty-one was broken down in cross-examination; but the one on the right side was utterly annihilated by Russell.

“ ‘How is Russell getting on?’ a friend asked one of the judges of the Parnell Commission during the days of Pigott’s cross-examination. ‘Master Charlie is bowling very straight,’ was the answer. ‘Master Charlie’ always bowled ‘very straight,’ and the man at the wicket generally came quickly to grief. I have myself seen him approach a witness with great gentleness — the gentleness of a lion reconnoitering his prey. I have also seen him fly at a witness with the fierceness of a tiger. But, gentle or fierce, he must have always looked a very ugly object to the man who had gone into the box to lie.”

Rufus Choate had little of Russell’s natural force with which to command his witnesses; his effort was to magnetize, he was called “the wizard of the court room.” He employed an entirely different method in his cross examinations. He never assaulted a witness as if determined to browbeat him. “Commenting once on the cross-examination of a certain eminent counselor at the Boston Bar with decided disapprobation, Choate said, ‘This man goes at a witness in such a way that he inevitably gets the jury all on the side of the witness. I do not’, he added, ‘think that is a good plan.’ His own plan was far more wary, intelligent, and circumspect. He had a profound knowledge of human nature, of the springs of human action, of the thoughts of human hearts. To get at these and make them patent to the jury, he would ask only a few telling questions — a very few questions, but generally every one of them was fired point-blank and hit the mark. His motto was: ‘Never cross-examine any more than is absolutely necessary. If you don’t break your witness, he breaks you.’ He treated every man who appeared like a fair and honest person on the stand, as if upon the presumption that he was a gentleman; and if a man appeared badly, he demolished him, but with the air of a surgeon performing a disagreeable amputation — as if he was profoundly sorry for the necessity. Few men, good or bad, ever cherished any resentment against Choate for his cross-examination of them. His whole style of address to the occupants of the witness-stand was soothing, kind, and reassuring. When he came down heavily to crush a witness, it was with a calm, resolute decision, but no asperity — nothing curt, nothing tart.”[47]

Choate’s idea of the proper length of an address to a jury was that “a speaker makes his impression, if he ever makes it, in the first hour, sometimes in the first fifteen minutes; for if he has a proper and firm grasp of his case, he then puts forth the outline of his grounds of argument. He plays the overture, which hints at or announces all the airs of the coming opera. All the rest is mere filling up: answering objections, giving one juryman little arguments with which to answer the objections of his fellows, etc. Indeed, this may be taken as a fixed rule, that the popular mind can never be vigorously addressed, deeply moved, and stirred and fixed more than one hour in any single address.”

What Choate was to America, and Erskine, and later Russell, to England, John Philpot Curran was to Ireland. He ranked as a jury lawyer next to Erskine. The son of a peasant, he became Master of Rolls for Ireland in 1806. He had a small, slim body, a stuttering, harsh, shrill voice, originally of such a diffident nature that in the midst of his first case he became speechless and dropped his brief to the floor, and yet by perseverance and experience he became one of the most eloquent and powerful forensic advocates of the world. As a cross-examiner it was said of Curran that “he could unravel the most ingenious web which perjury ever spun, he could seize on every fault and inconsistency, and build on them a denunciation terrible in its earnestness.”[48]

It was said of Scarlett, Lord Abinger, that he won his cases because there were twelve Sir James Scarletts in the jury-box. He became one of the leading jury lawyers of his time, so far as winning verdicts was concerned. Scarlett used to wheedle the juries over the weak places in his case. Choate would rush them right over with that enthusiasm which he put into everything, “with fire in his eye and fury on his tongue.” Scarlett would level himself right down to each juryman, while he flattered and won them. In his cross-examinations “he would take those he had to examine, as it were by the hand, made them his friends, entered into familiar conversation with them, encouraged them to tell him what would best answer his purpose, and thus secured a victory without appearing to commence a conflict.”

A story is told about Scarlett by Justice Wightman who was leaving his court one day and found himself walking in a crowd alongside a countryman, whom he had seen, day by day, serving as a juryman, and to whom he could not help speaking. Liking the look of the man, and finding that this was the first occasion on which he had been at the court, Judge Wightman asked him what he thought of the leading Counsel. “Well,” said the countryman, “that lawyer Brougham be a wonderful man, he can talk, he can, but I don’t think nowt of Lawyer Scarlett.” — “Indeed!” exclaimed the judge, “you surprise me, for you have given him all the verdicts.” — “Oh, there’s nowt in that,” was the reply, “he be so lucky, you see, he be always on the right side.”[49]

Choate also had a way of getting himself “into the jury-box,” and has been known to address a single jury man, who he feared was against him, for an hour at a time. After he had piled up proof and persuasion all together, one of his favorite expressions was, “But this is only half my case, gentlemen, I go now to the main body of my proofs.”

Like Scarlett, Erskine was of medium height and slender, but he was handsome and magnetic, quick and nervous, “his motions resembled those of a blood horse — as light, as limber, as much betokening strength and speed.” He, too, lacked the advantage of a college education and was at first painfully unready of speech. In his maiden effort he would have abandoned his case, had he not felt, as he said, that his children were tugging at his gown. “In later years,” Choate once said of him, “he spoke the best English ever spoken by an advocate.” Once, when the presiding judge threatened to commit him for contempt, he replied, “Your Lordship may proceed in what manner you think fit; I know my duty as well as your Lordship knows yours.” His simple grace of diction, quiet and natural passion, was in marked contrast to Rufus Choate, whose delivery has been described as “a musical flow of rhythm and cadence, more like a long, rising, and swelling song than a talk or an argument.” To one of his clients who was dissatisfied with Erskine’s efforts in his behalf, and who had written his counsellor on a slip of paper, “I’ll be hanged if I don’t plead my own cause,” Erskine quietly replied, “You’ll be hanged if you do.” Erskine boasted that in twenty years he had never been kept a day from court by ill health. And it is said of Curran that he has been known to rise before a jury, after a session of sixteen hours with only twenty minutes’ intermission, and make one of the most memorable arguments of his life.

Among the more modern advocates of the English Bar, Sir Henry Hawkins stands out conspicuously. He is reputed to have taken more money away with him from the Bar than any man of his generation. His leading characteristic when at the Bar, was his marvellous skill in cross-examination. He was associated with Lord Coleridge in the first Tichborne trial, and in his cross-examination of the witnesses, Baignet and Carter, he made his reputation as “the foremost cross-examiner in the world.”[50] Sir Richard Webster was another great cross-examiner. He is said to have received $100,000 for his services in the trial before the Parnell Special Commission, in which he was opposed to Sir Charles Russell.

Rufus Choate said of Daniel Webster, that he considered him the grandest lawyer in the world. And on his deathbed Webster called Choate the most brilliant man in America. Parker relates an episode characteristic of the clashing of swords between these two idols of the American Bar. “We heard Webster once, in a sentence and a look, crush an hour’s argument of Choate’s curious workmanship; it was most intellectually wire-drawn and hair-splitting, with Grecian sophistry, and a subtlety the Leontine Gorgias might have envied. It was about two car-wheels, which to common eyes looked as like as two eggs; but Mr. Choate, by a fine line of argument between tweedle-dum and tweedledee, and a discourse on ‘the fixation of points’ so deep and fine as to lose itself in obscurity, showed the jury there was a heaven-wide difference between them. ‘But,’ said Mr. Webster, and his great eyes opened wide and black, as he stared at the big twin wheels before him, ‘gentlemen of the jury, there they are — look at ‘em;’ and as he pronounced this answer, in tones of vast volume, the distorted wheels seemed to shrink back again into their original similarity, and the long argument on the ‘fixation of points’ died a natural death. It was an example of the ascendency of mere character over mere intellectuality; but so much greater, nevertheless, the intellectuality.”[51]

Jeremiah Mason was quite on a par with either Choate or Webster before a jury. His style was conversational and plain. He was no orator. He would go close up to the jury-box, and in the plainest possible logic force conviction upon his hearers. Webster said he “owed his own success to the close attention he was compelled to pay for nine successive years, day by day, to Mason’s efforts at the same Bar.” As a cross-examiner he had no peer at the New England Bar.

In the history of our own New York Bar there have been, probably, but few equals of Judge William Fullerton as a cross-examiner. He was famous for his calmness and mildness of manner, his rapidly repeated questions; his sallies of wit interwoven with his questions, and an ingenuity of method quite his own.

Fullerton’s cross-examinations in the celebrated Tilton vs. Henry Ward Beecher case gave him an international reputation, and were considered the best ever heard in this country. And yet these very examinations, laborious and brilliant, were singularly unproductive of results, owing probably to the unusual intelligence and shrewdness of the witnesses themselves. The trial as a whole was by far the most celebrated of its kind the New York courts have ever witnessed. One of the most eminent of Christian preachers was charged with using the persuasive powers of his eloquence, strengthened by his religious influence, to alienate the affections and destroy the probity of a member of his church — a devout and theretofore pure-souled woman, the wife of a long-loved friend. He was charged with continuing the guilty relation during the period of a year and a half, and of cloaking the offence to his own conscience and to hers under specious words of piety; of invoking first divine blessing on it, and then divine guidance out of it; and finally of adding perjury to seduction in order to escape the consequences. His accusers, moreover, Mr. Tilton and Mr. Moulton, were persons of public reputation and honorable station in life.

The length and complexity of Fullerton’s cross-examinations preclude any minute mention of them here. Once when he found fault with Mr. Beecher for not answering his questions more freely and directly, the reply was frankly made, “I am afraid of you!”

While cross-examining Beecher about the celebrated “ragged letter,” Fullerton asked why he had not made an explanation to the church, if he was innocent. Beecher answered that he was keeping his part of the compact of silence, and added that he did not believe the others were keeping theirs. There was audible laughter throughout the court room at this remark, and Judge Neilson ordered the court officer to remove from the court room any person found offending — “Except the counsel,” spoke up Mr. Fullerton. Later the cross-examiner exclaimed impatiently to Mr. Beecher that he was bound to find out all about these things before he got through, to which Beecher retorted, “I don’t think you are succeeding very well.”

Mr. Fullerton (in a voice like thunder): “Why did you not rise up and deny the charge?”

Mr. Beecher (putting into his voice all that marvellous magnetic force, which so distinguished him from other men of his time): “Mr. Fullerton, that is not my habit of mind, nor my manner of dealing with men and things.”

Mr. Fullerton: “So I observe. You say that Theodore Tilton’s charge of intimacy with his wife, and the charges made by your church and by the committee of your church, made no impression on you?”

Mr. Beecher (shortly): “Not the slightest.”

At this juncture Mr. Thomas G. Sherman, Beecher’s personal counsel, jumped to his client’s aid, and remarked that it was a singular coincidence that when counsel had not the record before him, he never quoted correctly.

Mr. Fullerton (addressing the court impressively): “When Mr. Sherman is not impertinent, he is nothing in this case.”

Judge Neilson (to the rescue): “Probably counsel thought —”

Mr. Fullerton (interrupting): “What Mr. Sherman thinks, your Honor, cannot possibly be of sufficient importance to take up the time either of the court or opposing counsel.”

“Are you in the habit of having your sermons published?” continued Mr. Fullerton. Mr. Beecher acknowledged that he was, and also that he had preached a sermon on “The Nobility of Confession.”

Mr. Sherman (sarcastically): “I hope Mr. Fullerton is not going to preach us a sermon.”

Mr. Fullerton: “I would do so if I thought I could convert brother Sherman.”

Mr. Beecher (quietly): “I will be happy to give you the use of my pulpit.”

Mr. Fullerton (laughing): “Brother Sherman is the only audience I shall want.”

Mr. Beecher (sarcastically): “Perhaps he is the only audience you can get.”

Mr. Fullerton: “If I succeed in converting brother Sherman, I will consider my work as a Christian minister complete.”

Mr. Fullerton then read a passage from the sermon, the effect of which was that if a person commits a great sin, and the exposure of it would cause misery, such a person would not be justified in confessing it, merely to relieve his own conscience. Mr. Beecher admitted that he still considered that “sound doctrine.”

At this point Mr. Fullerton turned to the court, and pointing to the clock, said, “Nothing comes after the sermon, I believe, but the benediction.” His Honor took the hint, and the proceedings adjourned.[52]

In this same trial Hon. William M. Evarts, as leading counsel for Mr. Beecher, heightened his already international reputation as an advocate. It was Mr. Evarts’s versatility in the Beecher case that occasioned so much comment. Whether he was examining in chief or on cross, in the discussion of points of evidence, or in the summing up, he displayed equally his masterly talents. His cross-examination of Theodore Tilton was a masterpiece. His speeches in court were clear, calm, and logical. Mr. Evarts was not only a great lawyer, but an orator and statesman of the highest distinction. He has been called “the Prince of the American Bar.” He was a gentleman of high scholarship and fine literary tastes. His manner in the trial of a case has been described by some one as “all head, nose, voice, and forefinger.” He was five feet seven inches tall, thin and slender, “with a face like parchment.”

Mr. Joseph H. Choate once told me he considered that he owed his own success in court to the nine years during which he acted as Mr. Evarts’s junior in the trial of cases. No one but Mr. Choate himself would have said this. His transcendent genius as an advocate could not have been acquired from any tutelage under Mr. Evarts. When Mr. Choate accepted his appointment as Ambassador to the Court of St. James, he retired from the practice of the law; and it is therefore permissible to comment upon his marvellous talents as a jury lawyer. He was not only easily the leading trial lawyer of the New York Bar, but was by many thought to be the representative lawyer of the American Bar. Surely no man of his time was more successful in winning juries. His career was one uninterrupted success. Not that he shone especially in any particular one of the duties of the trial lawyer, but he was preëminent in the quality of his humor and keenness of satire. His whole conduct of a case, his treatment of witnesses, of the court, of opposing counsel, and especially of the jury, were so irresistibly fascinating and winning that he carried everything before him. One would emerge from a three weeks’ contest with Choate in a state almost of mental exhilaration, despite the jury’s verdict.

It was not so with the late Edward C. James; a contest with him meant great mental and physical fatigue for his opponent. James was ponderous and indefatigable. His cross-examinations were labored in the extreme. His manner as an examiner was dignified and forceful, his mind always alert and centred on the subject before him; but he had none of Mr. Choate’s fascination or brilliancy. He was dogged, determined, heavy. He would pound at you incessantly, but seldom reached the mark. He literally wore out his opponent, and could never realize that he was on the wrong side of a case until the foreman of the jury told him so. Even then he would want the jury polled to see if there was not some mistake. James never smiled except in triumph and when his opponent frowned. When Mr. Choate smiled, you couldn’t help smiling with him. During the last ten years of his life James was found on one side or the other of most of the important cases that were tried. He owed his success to his industrious and indefatigable qualities as a fighter; not, I think, to his art.

James T. Brady was called “the Curran of the New York Bar.” His success was almost entirely due to his courtesy and the marvellous skill of his cross-examinations. He had a serene, captivating manner in court, and was one of the foremost orators of his time. He has the proud record of having defended fifty men on trial for their lives, and of saving every one of them from the gallows.

On the other hand, William A. Beech, “the Hamlet of the American Bar,” was a poor cross-examiner. He treated all his witnesses alike. He was methodical, but of a domineering manner. He was slow to attune himself to an unexpected turn in a case he might be conducting. He lost many cases and was not fitted to conduct a desperate one. It was as a court orator that he was preeminent. His speech in the Beecher case alone would have made him a reputation as a consummate orator. His vocabulary was surprisingly rich and his voice wonderfully winning.

It is said of James W. Gerard, the elder, that “he obtained the greatest number of verdicts against evidence of any one who ever practised at the New York Bar. He was full of expedients and possessed extraordinary tact. In his profound knowledge of human nature and his ready adaptation, in the conduct of trials, to the peculiarities, caprices, and whims of the different juries before whom he appeared he was almost without a rival.... Any one who witnessed the telling hits made by Mr. Gerard on cross-examination, and the sensational incidents sprung by him upon his opponents, the court, and the jury, would have thought that he acted upon the inspiration of the moment — that all he did and all he said was impromptu. In fact, Mr. Gerard made thorough preparation for trial. Generally his hits in cross-examination were the result of previous preparation. He made briefs for cross-examination. To a large extent his flashes of wit and his extraordinary and grotesque humor were well pondered over and studied up beforehand.”[53]

Justice Miller said of Roscoe Conkling that “he was one of the greatest men intellectually of his time.” He was more than fifty years of age when he abandoned his arduous public service at Washington, and opened an office in New York City. During his six years at the New York Bar, such was his success, that he is reputed to have accumulated, for a lawyer, a very large fortune. He constituted himself a barrister and adopted the plan of acting only as Counsel. He was fluent and eloquent of speech, most thorough in the preparation of his cases, and an accomplished cross-examiner. Despite his public career, he said of himself, “My proper place is to be before twelve men in the box.” Conkling used to study for his cross-examinations, in important cases, with the most painstaking minuteness. In the trial of the Rev. Henry Burge for murder, Conkling saw that the case was likely to turn upon the cross-examination of Dr. Swinburne, who had performed the autopsy. The charge of the prosecution was that Mrs. Burge had been strangled by her husband, who had then cut her throat. In order to disprove this on cross-examination, Mr. Conkling procured a body for dissection and had dissected, in his presence, the parts of the body that he wished to study. As the result of Dr. Swinburne’s cross-examination at the trial, the presiding judge felt compelled to declare the evidence so entirely untrustworthy that he would decline to submit it to the jury and directed that the prisoner be set at liberty.

This studious preparation for cross-examination was one of the secrets of the success of Benjamin F. Butler. He was once known to have spent days in examining all parts of a steam-engine, and even learning to drive one himself, in order to cross-examine some witnesses in an important case in which he had been retained. At another time Butler spent a week in the repair shop of a railroad, part of the time with coat off and hammer in hand, ascertaining the capabilities of iron to resist pressure — a point on which his case turned. To use his own language: “A lawyer who sits in his office and prepares his cases only by the statements of those who are brought to him, will be very likely to be beaten. A lawyer in full practice, who carefully prepares his cases, must study almost every variety of business and many of the sciences.” A pleasant humor and a lively wit, coupled with wonderful thoroughness and acuteness, were Butler’s leading characteristics. He was not a great lawyer, nor even a great advocate like Rufus Choate, and yet he would frequently defeat Choate. His cross-examination was his chief weapon. Here he was fertile in resource and stratagem to a degree attained by few others. Choate had mastered all the little tricks of the trial lawyer, but he attained also to the grander thoughts and the logical powers of the really great advocate. Butler’s success depended upon zeal, combined with shrewdness and not overconscientious trickery.

In his autobiography, Butler gives several examples of what he was pleased to call his legerdemain, and to believe were illustrations of his skill as a cross-examiner. They are quoted from “Butler’s Book,” but are not reprinted as illustrations of the subtler forms of cross-examination, but rather as indicative of the tricks to which Butler owed much of his success before country juries.

“When I was quite a young man I was called upon to defend a man for homicide. He and his associate had been engaged in a quarrel which proceeded to blows and at last to stones. My client, with a sharp stone, struck the deceased in the head on that part usually called the temple. The man went and sat down on the curbstone, the blood streaming from his face, and shortly afterward fell over dead.

“The theory of the government was that he died from the wound in the temporal artery. My theory was that the man died of apoplexy, and that if he had bled more from the temporal artery, he might have been saved — a wide enough difference in the theories of the cause of death.

“Of course to be enabled to carry out my proposition I must know all about the temporal artery, — its location, its functions, its capabilities to allow the blood to pass through it, and in how short a time a man could bleed to death through the temporal artery; also, how far excitement in a body stirred almost to frenzy in an embittered conflict, and largely under the influence of liquor on a hot day, would tend to produce apoplexy. I was relieved on these two points in my subject, but relied wholly upon the testimony of a surgeon that the man bled to death from the cut on the temporal artery from a stone in the hand of my client. That surgeon was one of those whom we sometimes see on the stand, who think that what they don’t know on the subject of their profession is not worth knowing. He testified positively and distinctly that there was and could be no other cause for death except the bleeding from the temporal artery, and he described the action of the bleeding and the amount of blood discharged.

“Upon all these questions I had thoroughly prepared myself.

“Mr. Butler: ‘Doctor, you have talked a great deal about the temporal artery; now will you please describe it and its functions? I suppose the temporal artery is so called because it supplies the flesh on the outside of the skull, especially that part we call the temples, with blood.’

“Witness: ‘Yes; that is so.’

“Mr. Butler: ‘Very well. Where does the temporal artery take its rise in the system? Is it at the heart?’

“Witness: ‘No, the aorta is the only artery leaving the heart which carries blood toward the head. Branches from it carry the blood up through the opening into the skull at the neck, and the temporal artery branches from one of these.’

“Mr. Butler: ‘Doctor, where does it branch off from it? on the inside or the outside of the skull?’

“Witness: ‘On the inside.’

“Mr. Butler: ‘Does it have anything to do inside with supplying the brain?’

“Witness: ‘No.’

“Mr. Butler: ‘Well, doctor, how does it get outside to supply the head and temples?’

“Witness: ‘Oh, it passes out through its appropriate opening in the skull.’

“Mr. Butler: ‘Is that through the eyes?’

“Witness: ‘No.’

“Mr. Butler: ‘The ears?’

“Witness: ‘No.’

“Mr. Butler: ‘It would be inconvenient to go through the mouth, would it not, doctor?’

“Here I produced from my green bag a skull. ‘I cannot find any opening on this skull which I think is appropriate to the temporal artery. Will you please point out the appropriate opening through which the temporal artery passes from the inside to the outside of the skull?’

“He was utterly unable so to do.

“Mr. Butler: ‘Doctor, I don’t think I will trouble you any further; you can step down.’ He did so, and my client’s life was saved on that point.

“The temporal artery doesn’t go inside the skull at all.

“I had a young client who was on a railroad car when it was derailed by a broken switch. The car ran at considerable speed over the cross-ties for some distance, and my client was thrown up and down with great violence on his seat. After the accident, when he recovered from the bruising, it was found that his nervous system had been wholly shattered, and that he could not control his nerves in the slightest degree by any act of his will. When the case came to trial, the production of the pin by which the position of the switch was controlled, two-thirds worn away and broken off, settled the liability of the road for any damages that occurred from that cause, and the case resolved itself into a question of the amount of damages only. My claim was that my client’s condition was an incurable one, arising from the injury to the spinal cord. The claim put forward on behalf of the railroad was that it was simply nervousness, which probably would disappear in a short time. The surgeon who appeared for the road claimed the privilege of examining my client personally before he should testify. I did not care to object to that, and the doctor who was my witness and the railroad surgeon went into the consultation room together and had a full examination in which I took no part, having looked into that matter before.

“After some substantially immaterial matters on the part of the defence, the surgeon was called and was qualified as a witness. He testified that he was a man of great position in his profession. Of course in that I was not interested, for I knew he could qualify himself as an expert. In his direct examination he spent a good deal of the time in giving a very learned and somewhat technical description of the condition of my client. He admitted that my client’s nervous system was very much shattered, but he also stated that it would probably be only temporary. Of all this I took little notice; for, to tell the truth, I had been up quite late the night before and in the warm court room felt a little sleepy. But the counsel for the road put this question to him: —

“ ‘Doctor, to what do you attribute this condition of the plaintiff which you describe?’

“ ‘Hysteria, sir; he is hysterical.’

“That waked me up. I said, ‘Doctor, did I understand — I was not paying proper attention — to what did you attribute this nervous condition of my client?’

“ ‘Hysteria, sir.’

“I subsided, and the examination went on until it came my turn to cross-examine.

“Mr. Butler: ‘Do I understand that you think this condition of my client wholly hysterical?’

“Witness: ‘Yes, sir; undoubtedly.’

“Mr. Butler: ‘And therefore won’t last long?’

“Witness: ‘No, sir; not likely to.’

“Mr. Butler: ‘Well, doctor, let us see; is not the disease called hysteria and its effects hysterics; and isn’t it true that hysteria, hysterics, hysterical, all come from the Greek word ύστέρα?’

“Witness: ‘It may be.’

“Mr. Butler: ‘Don’t say it may, doctor; isn’t it? Isn’t an exact translation of the Greek word ύστέρα the English word “womb”?’

“Witness: ‘You are right, sir.”

“Mr. Butler: ‘Well, doctor, this morning when you examined this young man here,’ pointing to my client, ‘did you find that he had a womb? I was not aware of it before, but I will have him examined over again and see if I can find it. That is all, doctor; you may step down.’ ”

Robert Ingersoll took part in numerous noted lawsuits in all parts of the country. But he was almost helpless in court without a competent junior. He was a born orator if ever there was one. Henry Ward Beecher regarded him as “the most brilliant speaker of the English tongue in any land on the globe.” He was not a profound lawyer, however, and hardly the equal of the most mediocre trial lawyer in the examination of witnesses. Of the art of cross-examining witnesses he knew practically nothing. His definition of a lawyer, to use his own words, was “a sort of intellectual strumpet.” “My ideal of a great lawyer,” he once wrote, “is that great English attorney who accumulated a fortune of a million pounds, and left it all in his will to make a home for idiots, declaring that he wanted to give it back to the people from whom he took it.”

Judge Walter H. Sanborn relates a conversation he had with Judge Miller of the United States Court about Ingersoll. “Just after Colonel Ingersoll had concluded an argument before Mr. Justice Miller, while on Circuit I came into the court and remarked to Judge Miller that I wished I had got there a little sooner, as I had never heard Colonel Ingersoll make a legal argument.” — “Well,” said Judge Miller, “you never will.”[54]

Ingersoll’s genius lay in other directions. Who but Ingersoll could have written the following: —

“A little while ago I stood by the grave of the old Napoleon — a magnificent tomb of gilt and gold, fit almost for a dead deity, and gazed upon the sarcophagus of black marble, where rest at last the ashes of that restless man. I leaned over the balustrade, and thought about the career of the grea-test soldier of the modern world. I saw him walking upon the banks of the Seine, contemplating suicide; I saw him at Toulon; I saw him putting down the mob in the streets of Paris; I saw him at the head of the army in Italy; I saw him crossing the bridge of Lodi, with the tricolor in his hand; I saw him in Egypt, in the shadows of the Pyramids; I saw him conquer the Alps, and mingle the eagles of France with the eagles of the crags; I saw him at Marengo, at Ulm, and at Austerlitz; I saw him in Russia, where the infantry of the snow and the cavalry of the wild blast scattered his legions like winter’s withered leaves. I saw him at Leipsic, in defeat and disaster; driven by a million bayonets back upon Paris; clutched like a wild beast; banished to Elba. I saw him escape and retake an empire by the force of his genius. I saw him upon the frightful field of Waterloo, where chance and fate combined to wreck the fortunes of their former king. And I saw him at St. Helena, with his hands crossed behind him, gazing out upon the sad and solemn sea. I thought of the orphans and widows he had made, of the tears that had been shed for his glory, and of the only woman who had ever loved him, pushed from his heart by the cold hand of ambition. And I said I would rather have been a French peasant, and worn wooden shoes; I would rather have lived in a hut, with a vine growing over the door, and the grapes growing purple in the kisses of the autumn sun. I would rather have been that poor peasant, with my loving wife by my side, knitting as the day died out of the sky, with my children upon my knees, and their arms about me. I would rather have been that man, and gone down to the tongueless silence of the dreamless dust, than to have been that imperial impersonation of force and murder, known as Napoleon the Great.”

19 In the Borough of Manhattan at the present time thirty-three per cent of the cases tried are appealed, and forty-two per cent of the cases appealed are reversed and sent back for re-trial as shown by the court statistics.

20 “Life Sketches of Eminent Lawyers,” G. J. Clark, Esq.

21 “Memories of Rufus Choate,” Neilson.

22 “Memories of Rufus Choate,” Neilson.

23 “Life of Lord Russell,” O’Brien.

24 “Reminiscences of Rufus Choate,” Parker.

25 This occurrence was at the time when the actress Anna Held was singing her popular stage song, “Won’t you come and play with me.”

26 “Curiosities of Law and Lawyers.”

27 “Hints on Advocacy,” Harris.

28 As a matter of fact, father and daughter wrote very much alike, and with surprising similarity to Mr. Ellison. It was this circumstance that led to the use of the three letters in the cross-examination.

29 “Pleasantries about Courts and Lawyers,” Edwards.

30 In Chapter XI (infra) is given in detail the cross-examination of the witness Pigott by Sir Charles Russell, which affords a most striking example of the most effective use that can be made of an incriminating letter.

31 “Curiosities of Law and Lawyers.”

32 “Illusions,” Sully (in part).

33 “Problems of Life and Mind,” C. H. Lewes, p. 107.

34 “Mental Philosophy,” Carpenter (in part).

35 “Campbell’s Mental Physiology” (in great part).

36 “Illusions,” p. 264 (in part).

37 Vol. ii, p. 165.

38 Quarterly Review, vol. ciii., p. 292.

39 Proverbs xxvii. 19.

40 Austin Abbott, Esq., in The Daily Register, December, 1886.

41 “Autobiography of Seventy Years.”

42 “Autobiography of Seventy Years,” Hoar.

43 “Extraordinary Cases,” H. L. Clinton.

44 “Irish Law Times,” 1874.

45 Sir James Stephen’s Evidence Act.

46 “Life of Lord Russell,” Barry O’Brien.

47 “Reminiscences of Rufus Choate,” Parker.

48 “Life Sketches of Eminent Lawyers,” Gilbert J. Clark

49 “Curiosities of Law and Lawyers.”

50 “Life Sketches of Eminent Lawyers,” Clark.

51 “Reminiscences of Rufus Choate,” Parker.

52 Extracts from the daily press accounts of the proceedings of one of the thirty days of the trial, as reported in “Modern Jury Trials.” Donovan.

53 “Extraordinary Cases,” Henry Lauran Clinton.

54 “Life Sketches of Eminent Lawyers,” Gilbert J. Clark.