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 habitués 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.[13]
[13] "Extraordinary Cases," H. L. Clinton.
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."[14]
[14] "Irish Law Times," 1874.
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.[15]
[15] Sir James Stephen's Evidence Act.
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."