GOLDEN RULES FOR THE EXAMINATION OF WITNESSES
David Paul Brown, a member of the Philadelphia Bar, has condensed his
experiences into eighteen paragraphs which he has entitled, "Golden
Rules for the Examination of Witnesses."
Although I am of the opinion that it is impossible to embody in any set
of rules the art of examination of witnesses, yet the Golden Rules of
Brown contain so many useful and valuable suggestions concerning the
art, that it is well to reprint them here for the benefit of the
student.
_Golden Rules for the Examination of Witnesses_
First, as to your own witnesses.
I. If they are bold, and may injure your cause by pertness or
forwardness, observe a gravity and ceremony of manner toward them which
may be calculated to repress their assurance.
II. If they are alarmed or diffident, and their thoughts are evidently
scattered, commence your examination with matters of a familiar
character, remotely connected with the subject of their alarm, or the
matter in issue; as, for instance,--Where do you live? Do you know the
parties? How long have you known them? etc. And when you have restored
them to their composure, and the mind has regained its equilibrium,
proceed to the more essential features of the case, being careful to be
mild and distinct in your approaches, lest you may again trouble the
fountain from which you are to drink.
III. If the evidence of your own witnesses be unfavorable to you (which
should always be carefully guarded against), exhibit no want of
composure; for there are many minds that form opinions of the nature or
character of testimony chiefly from the effect which it may appear to
produce upon the counsel.
IV. If you perceive that the _mind_ of the witness is imbued with
prejudices against your client, hope but little from such a
quarter--unless there be some facts which are essential to your client's
protection, and which that witness alone can prove, either do not call
him, or get rid of him as soon as possible. If the opposite counsel
perceive the bias to which I have referred, he may employ it to your
ruin. In judicial inquiries, of all possible evils, the worst and the
least to be resisted is an enemy in the disguise of a friend. You cannot
impeach him; you cannot cross-examine him; you cannot disarm him; you
cannot indirectly, even, assail him; and if you exercise the only
privilege that is left to you, and call other witnesses for the purposes
of explanation, you must bear in mind that, instead of carrying the war
into the enemy's country, the struggle is still between sections of your
own forces, and in the very heart, perhaps, of your own camp. Avoid
this, by all means.
V. Never call a witness whom your adversary will be compelled to call.
This will afford you the privilege of cross-examination,--take from your
opponent the same privilege it thus gives to you,--and, in addition
thereto, not only render everything unfavorable said by the witness
doubly operative against the party calling him, but also deprive that
party of the power of counteracting the effect of the testimony.
VI. Never ask a question without an object, nor without being able to
connect that object with the case, if objected to as irrelevant.
VII. Be careful not to put your question in such a _shape_ that, if
opposed for informality, you cannot sustain it, or, at all events,
produce strong reason in its support. Frequent failures in the
discussions of points of evidence enfeeble your strength in the
estimation of the jury, and greatly impair your hopes in the final
result.
VIII. Never object to a question from your adversary without being able
and disposed to enforce the objection. Nothing is so monstrous as to be
constantly making and withdrawing objections; it either indicates a want
of correct perception _in making them_, or a deficiency of real or of
moral courage in _not making them good_.
IX. Speak to your witness clearly and distinctly, as if you were awake
and engaged in a matter of interest, and make _him_ also speak
distinctly and to your question. How can it be supposed that the court
and jury will be inclined to listen, when the only struggle seems to be
whether the counsel or the witness shall first go to sleep?
X. Modulate your voice as circumstances may direct, "Inspire the fearful
and repress the bold."
XI. Never begin before you are _ready_, and always finish when you have
_done_. In other words, do not question for question's sake, but for an
_answer_.
_Cross-examination_
I. Except in indifferent matters, never take your eye from that of the
witness; this is a channel of communication from mind to mind, the loss
of which nothing can compensate.
"Truth, falsehood, hatred, anger, scorn, despair,
And all the passions--all the soul--is there."
II. Be not regardless, either, of the _voice_ of the witness; next to
the eye this is perhaps the best interpreter of his mind. The very
design to screen conscience from crime--the mental reservation of the
witness--is often manifested in the tone or accent or emphasis of the
voice. For instance, it becoming important to know that the witness was
at the corner of Sixth and Chestnut streets at a certain time, the
question is asked, Were you at the corner of Sixth and Chestnut streets
at six o'clock? A frank witness would answer, perhaps I was near there.
But a witness who had been there, desirous to conceal the fact, and to
defeat your object, speaking to the letter rather than the spirit of the
inquiry, answers, No; although he may have been within a stone's throw
of the place, or at the very place, within ten minutes of the time. The
common answer of such a witness would be, I was not at the _corner at
six o'clock_.
Emphasis upon both words plainly implies a mental evasion or
equivocation, and gives rise with a skilful examiner to the question, At
what hour were you at the corner, or at what place were you at six
o'clock? And in nine instances out of ten it will appear, that the
witness was at the place about the time, or at the time about the place.
There is no scope for further illustrations; but be watchful, I say, of
the voice, and the principle may be easily applied.
III. Be mild with the mild; shrewd with the crafty; confiding with the
honest; merciful to the young, the frail, or the fearful; rough to the
ruffian, and a thunderbolt to the liar. But in all this, never be
unmindful of your own dignity. Bring to bear all the powers of your
mind, not that _you_ may shine, but that _virtue_ may triumph, and your
_cause_ may prosper.
IV. In a _criminal_, especially in a _capital_ case, so long as your
cause stands well, ask but few questions; and be certain never to ask
_any_ the answer to which, if against you, may destroy your client,
unless you know the witness _perfectly_ well, and know that his answer
will be favorable _equally_ well; or unless you be prepared with
testimony to destroy him, if he play traitor to the truth and your
expectations.
V. An equivocal question is almost as much to be avoided and condemned
as an equivocal answer; and it always _leads_ to, or _excuses_, an
equivocal answer. Singleness of purpose, clearly expressed, is the best
trait in the examination of witnesses, whether they be honest or the
reverse. Falsehood is not detected by cunning, but by the light of
truth, or if by cunning, it is the cunning of the witness, and not of
the counsel.
VI. If the witness determine to be witty or refractory with you, you had
better settle that account with him at _first_, or its items will
increase with the examination. Let him have an opportunity of satisfying
himself either that he has mistaken _your_ power, or his _own_. But in
any result, be careful that you do not lose your temper; anger is always
either the precursor or evidence of assured defeat in every intellectual
conflict.
VII. Like a skilful chess-player, in every move, fix your mind upon the
combinations and relations of the game--partial and temporary success
may otherwise end in total and remediless defeat.
VIII. Never undervalue your adversary, but stand steadily upon your
guard; a random blow may be just as fatal as though it were directed by
the most consummate skill; the negligence of one often cures, and
sometimes renders effective, the blunders of another.
IX. Be respectful to the court and to the jury; kind to your colleague;
civil to your antagonist; but never sacrifice the slightest principle of
duty to an overweening deference toward _either_.
In "The Advocate, his Training, Practice, Rights, and Duties," written
by Cox, and published in England about a half century ago, there is an
excellent chapter on cross-examination, to which the writer is indebted
for many suggestions. Cox closes his chapter with this final admonition
to the students, to whom his book is evidently addressed:--
"In concluding these remarks on cross-examination, the rarest, the most
useful, and the most difficult to be acquired of the accomplishments of
the advocate, we would again urge upon your attention the importance of
calm discretion. In addressing a jury you may sometimes talk without
having anything to say, and no harm will come of it. But in
cross-examination every question that does not advance your cause
injures it. If you have not a definite object to attain, dismiss the
witness without a word. There are no harmless questions here; the most
apparently unimportant may bring destruction or victory. If the summit
of the orator's art has been rightly defined to consist in knowing when
to sit down, that of an advocate may be described as knowing when to
keep his seat. Very little experience in our courts will teach you this
lesson, for every day will show to your observant eye instances of
self-destruction brought about by imprudent cross-examination. Fear not
that your discreet reserve may be mistaken for carelessness or want of
self-reliance. The true motive will soon be seen and approved. Your
critics are lawyers, who know well the value of discretion in an
advocate; and how indiscretion in cross-examination cannot be
compensated by any amount of ability in other duties. The attorneys are
sure to discover the prudence that governs your tongue. Even if the
wisdom of your abstinence be not apparent at the moment, it will be
recognized in the result. Your fame may be of slower growth than that of
the talker, but it will be larger and more enduring."