Monday 20 August 2012

Art Of Cross Examination

It needs but the simple statement of the nature of crossexamination 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 crossexamination, 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 allimportant prerequisite of a competent trial lawyer.  
It requires the greatest ingenuity; a habit of logical thought;
clearness of perception in general; infinite patience and selfcontrol; 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
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 skilful 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 The Art of Cross-Examination
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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
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 CROSSexamination! 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.” 
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 crossexamination 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.
 [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,
 “Life Sketches of Eminent Lawyers,” G.  J.  Clark, Esq.
 “Memories of Rufus Choate,” Neilson. 10 Francis H. Wellman
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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 crossexamining 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.” 

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

 “Memories of Rufus Choate,” Neilson.  
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.”

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,
 “Life of Lord Russell,” O’Brien. The Art of Cross-Examination 11
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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.”

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