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 for judging 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.'"