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. Unskilful
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?"[7] "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.
[7] 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."
These little triumphs are, however, by no means always one-sided. Often,
if the council 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 Worster 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."[8] 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.
[8] "Curiosities of Law and Lawyers."
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 half-dozen 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, hæmorrhages of the brain. Do you mean to tell us that he could
have had hæmorrhages of the brain and be alive to-day?"
_Doctor._ "They were microscopic hæmorrhages."
_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 hæmorrhages?"
_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 down town!" (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."