The Art of Cross-Examination Part 9

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 c.o.c.kburn 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 pa.s.ses 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 ent.i.tled 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 s.e.xes 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.

a.s.suming that the material with which you propose to a.s.sail 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."

CHAPTER IX

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 ent.i.tled, "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 a.s.surance.

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, a.s.sail 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 circ.u.mstances 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 pa.s.sions--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 ill.u.s.trations; 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 a.s.sured 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 c.o.x, 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. c.o.x 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."