The Art of Cross Examination
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THE ART OF CROSS-EXAMINATION
j[^§^
THE ART OF CROSS-EXAMINATION BY
FRANCIS OF THE
L.
WELLMAN
NEW YORK BAR
WITH THE CROSS-EXAMINATIONS OF IMPORTANT WITNESSES IN SOME CELEBRATED CASES
THE MACMILLAN COMPANY LONDON MACMILLAN & :
1904 All rights reserved
CO., Ltd.
Copyright, 1903,
By
the MACMILLAN COMPANY.
Set up, electrotyped, and published December, 1903.
Reprinted
January, 1904.
Nortoood Press S.
Gushing ©" Co.
— Berwick Sf
Norivood, Mass., U.S.A.
Smith Co.
^0 mg ^ong
RODERIC WHO HAVE
AND
ALLEN
EXPRESSED THEIR INTENTION
TO ENTER THE LEGAL PROFESSION
THIS BOOK IS
AFFECTIONATELY DEDICATED
" Cross-examination,
— the
rarest, the
the most difficult to be acquired of of the advocate. test of truth
...
It
all
most
useful,
and
the accomplishments
has always been deemed the surest
and a better security than the oath."
— Cox.
PREFACE In offering this book to the legal profession
I
do
not intend to arrogate to myself any superior knowledge
upon the
subject, excepting
been gleaned
from
in
so far as
experience.
actual
attempted to treat the subject in any or exhaustive
rate,
way;
scientific, elabo-
but merely to
suggestions upon the art of
may have Nor have I it
make some
cross-examination, which
have been gathered as a result
of
court practice, during which time
I
twenty-five
years'
have examined and
cross-examined about fifteen thousand witnesses, drawn
from If
all
classes of the
what
to the
is
community.
here written affords anything of instruction
younger members
of
my
or entertainment to the public,
it
will
amply
justify the
my summer vacation to put in readable some points from my experience upon this most
time taken from
form
profession, or of interest
difficult subject.
Bar Harbor, Maine, September
i,
1903.
CONTENTS CHAPTER I.
II.
III.
IV.
V. VI.
PACE
INTRODUCTORY
ii
... ...
THE MANNER OF CROSS-EXAMINATION THE MATTER OF CROSS-EXAMINATION CROSS-EXAMINATION OF THE PERJURED WITNESS
37
CROSS-EXAMINATION OF EXPERTS
79
....
THE SEQUENCE OF CROSS-EXAMINATION
.
.
21
55
loi
SILENT CROSS-EXAMINATION
iir
VIII.
CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES
iig
IX.
GOLDEN RULES FOR EXAMINATION OF WITNESSES
133
X.
SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS
143
VII.
XI.
THE CROSS-EXAMINATION OF RICHARD PIGOTT BEFORE THE PARNELL COMMISSION .173 .
XII.
THE CROSS-EXAMINATION OF
DR.
THE
IN
CARLYLE W. HARRIS CASE XIII.
195
THE CROSS-EXAMINATION OF THOMAS J. MINNOCK IN THE BELLEVUE HOSPITAL CASE .
XIV.
THE CROSS-EXAMINATION OF JEREMIAH SMITH IN THE WILLIAM PALMER CASE .247 .
XV.
213
.
.
THE CROSS-EXAMINATION OF RUSSELL SAGE THE LAIDLAW-SAGE CASE
IN 267
CHAPTER
I
INTRODUCTORY
chaptp:r
I
INTRODUCTORY "
The
and
is
issue of a cause rarely
depends upon a speech
but seldom even affected by
But there
it.
a cause contested, the result of which
pendent upon the
is
never
not mainly de-
is
with which the advocate conducts
skill
his cross-examination."
This
is
the conclusion arrived at by one of England's
greatest advocates at the close of a long and eventful
career at the Bar.
It
was written some
fifty
years ago
when oratory in public trials was at its It is even more true at the present time, when height. what was once commonly reputed a " great speech " is because the modern methseldom heard in our courts, and
at a time
—
ods of practising our profession have had a tendency to
discourage court
The
orators.
to
"
grasp
the
than formerly. oratory,
oratory and
— "law-papers
on
passioned literary
efforts,
of
who were wont now less in favor
"
are
With our modern jurymen
speeches used to be called,
fire,"
as
— though
the arts of
Lord Brougham's still
enjoyed as im-
have become almost useless as
persuasive arguments or as a
now
development
orators
old-fashioned
thunderbolt
the
called. 13
"
summing up
"
as they are
THE ART OF CROSS-EXAMINATION Modern
of practical business selves,
composed
juries, especially in large cities, are
men accustomed
experienced in the ways of
making
estimates and
to think for them-
capable of forming
life,
unmoved by
nice distinctions,
passions and prejudices to which court oratory
Nowadays, jurymen,
always directed.
upon testimony the most
to bestow
is
nearly
as a rule, are
intelligent
the
wont
and pains-
taking attention, and have a keen scent for truth.
It is
not intended to maintain that juries
are no longer human,
or that in certain cases they do not
still
on by
led
their prejudices
if
not by
go widely
astray,
their passions.
Nev-
ertheless, in the vast majority of trials, the
man, and especially the modern in
our large
cases
is tried,
fact as the trial I
cities that
— comes
am aware
sneer at
among
city juryman,
the greatest
number
as near being the
most optimistic champion
by jury could
trial
that
by
modern
—
juryit
is
of litigated
model
arbiter of
of the institution of
desire.
many members
jury.
of
my
profession
Such men, however,
the unsuccessful and disgruntled,
few exceptions, be found
to
—
have had but
still
— when not
will,
with but
little
practice
themselves in court, or else to belong to that ever growing class in our profession
who have
relinquished their
court practice and are building up fortunes such as were
never dreamed of in the legal profession a decade ago,
by becoming what may be styled business lawyers
men who
—
are learned in the law as a profession, but
who
through opportunity, combined with rare commercial
abil-
14
INTRODUCTORY have come to apply
ity,
knowledge
and have thus come
To
—
to great
to practise
such as these a book
their
commercial enter-
law as a business. nature can have but
of this
those
It is to
interest.
who by
choice or chance
intend to become, engaged in that most laborious
are, or
of all
law
of corporate
— especially
combinations, organizations, and reorganizations,
prises,
little
their learning
forms of
legal business, the trial of cases in court,
that the suggestions and experiences which follow are especially addressed. It
—
I
is
am
many
often truly said that
speaking
now
especially of
of
our best lawyers
New York
City
—
are withdrawing from court practice because the nature of the litigation is
To
changing.
change taking place
in
some
such an extent
localities that the
is
this
more im-
portant commercial cases rarely reach a court decision.
Our merchants
prefer to
compromise
their difficulties,
or to write off their losses, rather than enter into litiga-
must remain dormant
in the courts for
upward
of three years awaiting their turn for a hearing
on the
tions that
overcrowded court calendars.
And
yet fully six thou-
sand cases of one kind or another are tried or disposed of yearly in the
Borough
This congestion
is
of
in all
it
alone.
not wholly due to lack of judges,
or that they are not capable largely,
Manhattan
seems to me, the
and industrious men fault of the
;
but
is
system in vogue
our American courts of allowing any lawyer, duly
enrolled as a
member
of
the 15
Bar,
to
practise in the
THE ART OF CROSS-EXAMINATION between barrister
distinction barristers
and
all avail
become convinced
to
members
the ten thousand
One
by turn.
solicitors
quent the courts
Bar
we recognize no and soHcitor; we are all
In the United States
highest courts.
at
the
has but to
fre-
that, so
long as
New York
County
themselves of their privilege to appear in
own
court and try their of the trials will
clients' cases, the great
majority
much
valuable
be poorly conducted, and
time wasted.
The conduct of a case in which many men, however fitted
;
court
is
a peculiar art for
learned in the law, are not
and where a lawyer has but one or even a dozen
experiences in court in each year, he can never become a competent trial lawyer. to clients,
who
often
their cases
;
am
I
assume
we
qualified as lawyers,
am
I
not addressing myself
that,
because we are duly
are therefore competent to try
speaking in behalf of our courts,
against the congestion of the calendars, and the conse-
quent crowding out of weighty commercial
One
experienced in the
at the utmost,
trial
litigations.
of causes will not require,
more than a quarter
of the time taken
by
the most learned inexperienced lawyer in developing his facts.
His case
stood before
will
the
be thoroughly prepared and under-
trial
begins.
His points
issues of fact will be clearly defined
way avoid many
tions of
of the
law and
and presented to the
court and jury in the fewest possible words. this
of
He
will in
erroneous rulings on ques-
law and evidence which are now upsetting so i6
INTROI^UCrrORY many
Me
verdicts on appeal.
his trial in
will
not only complete
shorter time, but he will he likely to bring
about an equitable verdict in the case which appealed from at
may
not be
appealed, will be sustained by
all, or, if
a higher court, instead of being sent back for a retrial
and the consequent consumption
of the time of
judge and jury in doing the work
all
These
facts are
and
year,
in
another
over again.'
being more and more appreciated each
our local courts there
increasing coterie of
trial
lawyers,
is
who
already an ever are devoting the
principal part of their time to court practice.
A
few lawyers have gone so
communication with resented by their that
some
of
clients excepting as they
own
attorneys.
It is
come
rep-
pleasing to note
our leading advocates who, having been
away from
called
far as to refuse direct
large
and active law practice
to enter
the government service, have expressed their intention,
when they resume
the practice of the law, to refuse
all
cases where clients are not already represented by com-
petent attorneys, recognizing, at least in their tice,
own
prac-
the English distinction between the barrister and
solicitor.
We
are thus beginning to appreciate in this
country what the English courts have so long recognized
;
that the only
way
gently conducted litigations ^
speedy and
intelli-
to inaugurate a
custom
to insure is
In the Borough of Manhattan at the present time thirty-three per cent of
the cases tried are appealed, and forty-two per cent of the cases appealed are
reversed and sent back for B
re-trial as
shown by YJ
the court statistics.
THE ART OF CROSS-EXAMINATION confining court practice to a comparatively limited
of
number
The
of trained trial lawyers.
and
between general practitioners
distinction
specialists is already established in the medical profes-
Who
sion and largely accepted by the public.
would
think nowadays of submitting himself to a serious operation
hands
the
at
of
his family physician, instead of
calling in an experienced surgeon to handle the knife
And
?
may have once been com-
yet the family physician
petent to play the part of surgeon, and doubtless has
But
had, years ago, his quota of hospital experience.
he so infrequently enters the domain shrinks from undertaking
where there
is
no
it,
of surgeiy that he
except under circumstances
There should be a
alternative.
lar distinction in the legal profession.
yer
may have once been competent
litigation
;
but he
to
family law-
conduct
the
not
" in
practice — he
out of
is
The
simi-
is
training" for the competition.
There the art
is
no short
cut,
of advocacy.
It
no royal road is
to proficiency, in
experience, and one might
almost say experience alone, that brings success. not speaking of that small minority of of life
who have been touched by
genius, but of
men
of average
men
the magic
is
am
walks
wand
of
endowments and even
special aptitude for the calling of advocacy it
in all
I
;
with them
The experienced advocate
a race of experience.
can look back upon those less advanced in years or experience,
and
rest content in the i8
thought that they are just
INTRODUCTORY many
so
cases behind him; that
if
he keeps on, with
equal opportunities in court, they can
Some day
him.
But
the
public
recognize
will
what does the ordinary
at present,
never overtake this
litigant
fact.
know
of
the advantages of having counsel to conduct his case who is "at home" in the court room, and perhaps even
acquainted with the very panel of jurors before whom his case is to be heard, through having already tried one or
more cases
How
little
for other clients before
can the ordinary business
value to himself of having a lawyer
same men?
the
man
who understands
habits of thought and of looking at evidence
mind
of
—
of the very
trial of his case.
Not
judge who
the
realize
is
the
— the bent
to preside at the
that our judges are not eminently
fair-minded in the conduct of trials; but they are
men
for all that, oftentimes very
trial
lawyer
who knows
that
the
How
much,
inexperienced too,
of the jury itself
human men
practitioner
and the
;
his judge, starts with
an advantage
little
appreciates.
does experience count in the selection
—one
of the "fine arts" of the advocate!
These are but a few of the many similar advantages one might enumerate, were they not apart from the subject
now concerned
we
are
in
conducting the
with
trial
— the
itself,
skill of
the advocate
once the jury has been
chosen.
When
the public realizes that a
good
trial
lawyer
is
the outcome, one might say of generations of witnesses,
when
clients fully appreciate the
19
dangers they run
in
THE ART OF CROSS-EXAMINATION intrusting their litigations to so-called " office lawyers
with
little
or no experience in court, they will insist upon
their briefs being intrusted to those cialty of court practice, advised
and
advantages ;
of
who make
assisted,
One
by their own private attorneys.
away
"
our present system
will
you
if
of the
a spewill,
chief dis-
be suddenly swept
the court calendars will be cleared by speedily
conducted
trials
;
issues will be tried within a reasonable
time after they are framed
;
the commercial cases,
disadvantageously settled out of court
or
now
abandoned
altogether, will return to our courts to the satisfaction
both
of the legal profession
nity at large
;
and
of the business
commu-
causes will be more skilfully tried
art of cross-examination
— the
more thoroughly understood.
20
CHAPTER
II
THE MANNER OF CROSS-EXAMINATION
CHAPTER
II
THE MANNER OF CROSS-EXAMINATION It needs but the simple statement of the nature of
cross-examination to demonstrate acter in
all trials
indispensable char-
its
of questions of fact.
No
cause reaches
the stage of litigation unless there are two sides to If
it.
the witnesses on one side deny or qualify the state-
ments made by those on the the truth
?
other,
Not necessarily which
jured testimony, — there
which side side
is
telling
is
offering per-
is far less intentional perjury in
the courts than the inexperienced would believe,
which side
is
hand, evidence
honestly mistaken itself
far
is
public usually realizes.
The
}
—
for,
on the other
less trustworthy than
tion
had the power or opportunity
How
?
shall
of disinterested
gants
.?
If all
we
tell,
men who
the
opinions of which side are
warped by prejudice or blinded by ignorance side has
— but
how make
it
?
Which
of correct observa-
apparent to a jury
are to decide between the
liti-
Obviously, by the means of cross-examination. 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
23
whole
THE ART OF CROSS-EXAMINATION and nothing but the
truth,
either side
and
truth,"
if all
advocates on
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 cross-examination,
and the occupation
of the
cross-examiner would be gone.
But as yet no substitute has ever been found for crossexamination as a means of separating truth from
false-
hood, and of reducing exaggerated statements to their true dimensions.
The system
is
as old as the history of nations.
In-
deed, 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
most
difficult
advocate.
it,
it.
generally considered to be the
branch of the multifarious duties of the
Success
comes more often for
is
in
the
to the
art,
as
some one has
happy possessor
of a
said,
genius
Great lawyers have often failed lamentably in
while marvellous success has crowned the efforts of
who might
those
otherwise have been regarded as of a
mediocre grade in the profession. rience
and the emulation
are the surest
means
Yet personal expe-
of others trained in the art,
of obtaining
proficiency in this
all-important prerequisite of a competent It
trial
lawyer.
requires the greatest ingenuity; a habit of logical
24
THE MANNER OK CROSS-EXAMINATION thought;
clearness
of
i^erception
patience and self-control
judge
intuitively, to
power
;
precision; a masterful
discover the
by their
weak point
and
the subject-matter
of
and, above
;
faces, to
to act with force
ability
knowledge
an extreme caution
infinite
read men's minds
to
of their characters
appreciate their motives;
itself;
general;
in
all,
the iiisiinct io
the witness under examina-
in
tion.
One
has to deal with a prodigious variety of witnesses
testifying
under an
stances.
It
human It is
involves
morals,
all
human
shades
of differing
circum-
and complexions
passions, and
human
of
intelligence.
a mental duel between counsel and witness.
In discussing
the
examining a witness, the
number
infinite
trial of
methods let
to
employ when
us imagine ourselves at
cross-
work
in
a cause, and at the close of the direct exami-
The
nation of a witness called by our adversary.
Has
inquiry would naturally be.
anything that
is
the witness testified to
Has his testimony Has he made an impres-
material against us
injured our side of the case
?
sion with the jury against us
cross-examine him at
all
first
}
Is
?
it
necessary for us to
.?
Before dismissing a witness, however, the possibility of
being able to
elicit
some new
facts in
should be taken into consideration.
our own favor
If
the witness
is
apparently truthful and candid, this can be readily done
by asking there
is
plain, straightforward questions.
any reason to doubt the willingness 25
If,
however,
of the wit-
THE ART OF CROSS-EXAMINATION ness to help develop the truth,
may
it
be necessary to
proceed with more caution, and possibly to put the witness in a position where
could
tell
him.
The
spoken,
good deal
a
it if
he wanted
to the jury that
he
and then leave
to,
juiy will thus draw the inference that, had he
would have been
it
appear
will
in our favor.
But suppose the witness has against us, and
testified to material facts
becomes our duty
it
of his testimony, or
abandon
all
to
hope
break the force
of a jury verdict.
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
How
shall
two instances would naturally be very is
a
marked
mony and
on the part
It is
Some
people
the language of the eye, or the tone of the voice,
tifying, or all is
^es^i-
largely a matter
of the examiner.
or the countenance of the witness, or his
It
There
between discrediting the
discrediting the witness.
of instinct call it
distinction
different.
manner
of tes-
combined, that betrays the wilful perjurer. say exactly what
difficult to
it
constant practice seems to enable a
judgment on
a fairly accurate
is,
trial
this
excepting that
lawyer to form
point.
A
skilful
cross-examiner seldom takes his eye from an important witness while he
Every expression every
movement
is
being examined by his adversary.
of his face, especially his of his hands, his
himself, his whole bearing
—
all
manner
mouth, even
of expressing
help the examiner to
arrive at an accurate estimate of his integrity.
26
THE MANNER OF CROSS-EXAMINATION Let us assume, then, that we have been correct
judgment of this particular witness,
and that he
is
in
our
trying to
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
How
of the jury.
us at once to the sion, the It is
manner
shall
we go about
important factor
first
l^rings
our discus-
in
of the cross-examiner.
absurd to suppose that any witness
positively to a certain set of facts, even tently stretched the truth,
by a lawyer
This
it?
to alter
going
is
to
if
who
has sworn
he has inadver-
be readily induced
them and acknowledge
his mistake.
People as a rule do not reflect upon their meagre opportunities for observing facts,
and
rarely suspect the frailty
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 of their
;
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 integrity,
he
the
at
start,
that he distrusts his
will straighten himself in the witness chair
and mentally defy him. the counsel's manner
at once. is
If,
on the other hand,
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
minded
spirit,
which,
if
his testimony
the cross-examiner
27
is
in
a fair-
clever, will
THE ART OF CROSS-EXAMINATION soon disclose the weak points
The
in the testimony.
sympathies of the jury are invariably on the side of the
and they are quick
witness,
They if you can make them him guilty of perjury. toward him.
apparent, but are slow to believe
how
Alas,
our daily court experiences
of in
often this !
brought face to face with lawyers thought that every one who the case
is
any discourtesy
to resent
are willing to admit his mistakes^
committing
accomplish so
little
testifies
is
One is who act
lost sight
constantly as
if
they
against their side of
No wonder
wilful perjury.
with their CROSS-examination
!
they
By
their shouting, brow-beating style they often confuse the
wits of the witness,
him with
it is
On
the jury.
true
;
but they
fail
to discredit
the contrary, they elicit
for the witness they are attacking,
and
little
sympathy
realize that
vigorous cross-examination," at the end of which
their
"
they
sit
down with
evident self-satisfaction,
has only
served to close effectually the mind of at least one
minded juryman against likely as not
it
their side of the case,
fair-
and as
has brought to light some important fact
favorable to the other side which had been overlooked in the examination-in-chief.
There in
the
is
a story told of
trial
feebleness of "
of
Reverdy Johnson, who once,
a case, twitted a brother lawyer
memory, and received the prompt
Yes, Mr. Johnson
;
but you
unlike the lion in the play,
I
than roar!' 28
will
please
with retort,
remember
that,
have something more to do
'
THE MANNER OF CROSS-EXAMINATION The
only lawyer
method
it
was Benjamin
successfully
F".
roaring
With him
Butler.
even humanity, was out of the question.
politeness, or
And
ever heard employ this
I
has been said of him that "concealment and
equivocation were scarcely possible to a witness under
But Butler had a won-
the operation of his methods."
He
derful personality.
was aggressive and even pugna-
— witnesses were
cious, but picturesque withal
afraid of
Butler was popular with the masses; he usually
him.
had the numerous
"
hangers-on
from the
his side of the case
" in
start,
room on
the court
and each
little
point
he would make with a witness met with their ready and
This greatly increased the embarrass-
audible approval.
ment
of the witness
tage.
It
and gave Butler a decided advan-
must be remembered
Butler had a
also that
contempt for scruple which would hardly stand him
good stead
at the
questioning a witness
The judge
replied Butler
whose
him
;
"
professor.
his
"
I
we hanged one
the other hand, art
in
characteristic
interrupted to remind
was a Harvard
On
Once he was
present time.
it
and graceful
to the foremost
him
know of
in
cross-
manner.
that the witness it,
your Honor,"
them the other day."
has been said of Rufus Choate,
qualities of
rank
mind
certainly entitle
among American
that in the cross-examination of witnesses,
advocates,
"He
never
aroused opposition on the part of the witness by attacking him, but disarmed him by the quiet and courteous ^
'-Life
Sketches of Eminent Lawyers," G.
29
J.
Clark, Esq.
THE ART OF CROSS-EXAMINATION manner
in
He was
which he pursued his examination.
quite sure, before giving
him
up, to expose the
parts of his testimony or the bias,
from the confidence bon mots was that
"
to
be given
if
weak
any, which detracted
[One
it."^
of Choate's
a lawyer's vacation consisted of the
space between the question put to a witness and his answer."]
Judah tinents,"
Benjamin,
P.
"
the eminent lawyer of two con"
used to cross-examine with his eyes.
No
witness could look into Benjamin's black, piercing eyes
and maintain a
Among
lie."
the English
Lord Abinger, had the reputation, of
having outstripped
had appeared
time,
manly
James
barristers, Sir
as a cross-examiner,
advocates who, up to that
all
The
"
British Bar.
at the
the polished courtesy, and
ease,
Scarlett,
gentle-
Christian
the
urbanity and affection, with which he proceeded to the task, did infinite mischief to the
testimony of witnesses
who were
upon
it
striving to deceive, or
whom
he found
expedient to fasten a suspicion."
A
good advocate should be a good
Now
is
an-
the time for the greatest self-control.
If
elicit
a
you show by your face how the answer lose
hurt,
your case by that one point alone.
one sees the cross-examiner answer.
He
fairly
and
" Memories of Rufus Choate," Neilson.
30
you may
How
often
staggered by such an
pauses, perhaps blushes, 1
The most
damaging
cautious cross-examiner will often swer.
actor.
after
he has
THE MANNER OF CROSS-EXAMINATION 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, will
seem
to
come
He
as a matter of course, and will
fall
perfectly
proceed with the next question as if nothing had happened, or even perhaps give the witness an fiat.
will
incredulous smile, as
would believe that
An
if
to say,
anecdote apropos of
Choate.
A
"
"Who
do you suppose
for a minute.?" this point is told of
witness for his antagonist
let fall,
Rufus
with no
particular emphasis, a statement of a
most important fact from which he saw that inferences greatly damaging to
might be drawn
his client's case
suffered the witness to then, as
he saw
if
himself, requested
might take
in
him
down
it
go through
repeat
to
correctly.
He
it
of great value
to
carefully that
he
as carefully avoided
cross-examining the witness, and in his argument not the least allusion to his testimony.
posing counsel, in his in his
came
close,
and
his statement
something
it
He
skilfully used.
if
When
made
the op-
to that part of his case
argument, he was so impressed with the idea that
Mr. Choate had discovered that there w^as something in that testimony
which made
could not see how,
that
in
his favor, although
he contented
himself
he
with
merely remarking that though Mr. Choate had seemed to think that the it
seemed
to
him
testimony bore in favor of his that
it
went 31
to sustain
client,
the opposite
THE ART OF CROSS-EXAMINATION and then went on with the other parts
side,
case."
the love of combat which every
It is
that fastens the attention of the jury of the ality
The
trial.
who speaks
;
who has
counsel
to those
who
testify
against him
and exceptions
is
courteous
avoids delaying
incompetent but
who seems to know what he is down when he has accomplished it, ex-
harmless evidence
about and
who appears
by innumerable ob-
perhaps
to
;
who
;
who
;
trial
possesses
upon the progress
with apparent frankness
constantly the progress of the jections
man
a pleasant person-
to be an earnest searcher after truth
sits
;
hibiting a spirit of fair play on
who
his
of
^
all
occasions
— he
creates an atmosphere in favor of the side
it
is
which
he represents, a powerful though unconscious influence with the jury in arriving at their verdict. to the weight of testimony, the verdict
amount
yet the
will
be far
less
Even is
if,
owing
against him,
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
who possesses a monotonous, rasping, penetrating voice who presents a slovenly, unkempt persona] appearance who is prone to take unfair advantage of
expression;
;
;
witness or counsel, and seems determined to win at ^
"
Memories of Rufus Choate," Neilson.
32
all
THK MANNKR OF CROSS-KXAMINATION
— soon
hazards
himself and
prejudices a jury against
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 has a great deal to do with this
would otherwise
dence that part of the
"
" in its
is
of
evi-
This
against him.
tell
generalship of a case
argument, which
he can
;
much
often create an atmosphere which will obscure
is
progress to the
There
such vast consequence.
is
eloquence displayed in the examination of witnesses as well as I
on the argument.
do not mean
"
There
is
matter in manncrr
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 crasies of
make and centres it upon your own idiosynmanner and speech. As the m.an who was
somewhat deaf and could not get near enough Clay
in
one
of
hear a word he the motions
The
his finest efforts, exclaimed, said, but,
of
I
great Jehovah, didn't he
didn't
make
!
very intonations of voice and the expression of
effect
made
to
produce a
upon the juiy and enable them
ciate fully a point they "
*'
"
face of the cross-examiner can be
marked
to Henr)-
might otherwise
to appre-
lose altogether.
Once, when cross-examining a witness by the name
Sampson, who was sued c
33
for libel
as editor of the
THE ART OF CROSS-EXAMINATION Referee, Russell asked the witness a question
did not answer.
Russell in a low voice.
you understand '
said
I did,'
voice to
it }
'
did,'
I
which he
question
?
still
said
'
Sampson.
said
asked Russell, in a
'
Sampson.
its
my
Did you hear
'
'
Did
lower voice.
Then,' said Russell, raising his
'
highest pitch, and looking as
if
he would
spring from his place and seize the witness by the throat,
'why have you not answered you have not answered
it?
A
it.'
Tell the jury
thrill of
why
excitement ran
Sampson was overwhelmed,
through the court room.
and he never pulled himself together again." ^
Speak do
distinctly yourself,
and compel your witness
Bring out your points so clearly that
so.
men
most ordinary intelligence can understand them. your audience
of the
Keep
— the jury — always interested and on the
Remember
alert.
to
is
it
the minds of the jury you are
addressing, even though your question
is
put to the wit-
Suit the modulations of your voice to the subject
ness.
Rufus Choate's voice would seem to
under discussion.
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
resonance.
of its variety
between
who "
and
his tone in
followed
all of its
examining and that
The
contrast
of the counsel
him was very marked.
Mr. Choate's appeal to the jury began long before
his final
argument 1
;
it
" Life of
began when he Lord
first
Russell," O'Brien.
34
took his seat
THE MANNER OF CROSS-EXAMINATION them and looked
before
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
and separated from them only by a narrow passage. There he sat, calm, contemplative
their seats,
space for
;
in the
midst of occasional noise and confusion solemnly
unruffled
;
always making some
headway
little
the jury, the court, or the witness
;
either with
never doing a single
thing which could by possibility lose him favor, ever doing
some
thing to win
little
counsel
when
a
it
;
smiling benignantly upon the
good thing was
said
;
smiling sympathiz-
upon the jury when any juryman laughed or made an inquiry wooing them all the time with his magnetic ingly
;
woo
glances as a lover might
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 tedious investigation
;
on
ments
for its attainment." 1
their
never that of an expert combatant,
intent
victoiy,
them through
and looking upon them as only ^
" Reminiscences of Rufus Choate," Parker.
35
instru-
CHAPTER
III
THE MATTER OF CROSS-EXAMINATION
;
CHAPTER
III
THE MATTER OF CROSS-EXAMINATION by experience we have learned the
If
our
art,
—
to control
important that we should turn
matter
put him
in a
—
it
then becomes
our attention
measure disarmed him, or
off his guard, while his
the
to
By our manner toward
our cross-examination.
him we may have
lesson of
our maimer toward the witness even
under the most trying circumstances,
of
first
memory and
at least
conscience
are being ransacked by subtle and searching questions,
the scope of which shall be hardly apparent to himself
but
it
that
we can hope
is
What
only with the matter of our cross-examination
adopt the fatal in the courts,
same
to destroy him.
be our
shall
method
of those
and proceed
to take the witness over the
story that he has already given our adversary, in
the absurd hope that he repetition,
jury?
mode of attack? Shall we we see around us daily
first
Or
and not shall
we
is
retell it
going
to
change
it
in the
with double effect upon the
rather avoid carefully his original
story, except in so far as is necessary to refer to
order to point out
its
weak spots? 39
it
Whatever we
in
do,
THE ART OF CROSS-EXAMINATION let
us do
with quiet dignity, with absolute fairness to
it
the witness
and
;
let
us frame our questions in such sim-
ple language that there can be
Let us imagine ourselves
confusion. that
no misunderstanding or
we may
in the jury box, so
see the evidence from their standpoint.
are not trying to
the audience as
"
make smart
We
a reputation for ourselves with
"
We
cross-examiners.
are think-
ing rather of our client and our employment by him to
win the jury upon his side
of the case.
Let us also avoid
asking questions recklessly, without any definite purpose. Unskilful questions are worse than none at
and only
all,
tend to uphold rather than to destroy the witness. All through the direct testimony of our imaginary witness,
it
will
be remembered, we were watching his every
movement and
our cross-examination his narrative to the point.
?
Did we
expression.
may
an opening for
Did we detect the weak spot
?
If so, let
It
find
in
us waste no time, but go direct
be that the witness's situation in
respect to the parties or the subject-matter of the suit
should be disclosed to the jury, as one reason
why
his
testimony has been shaded somewhat in favor of the side
on which he
testifies.
It
may be
that he has a direct
interest in the result of the litigation, or
some
indirect benefit therefrom.
is
to receive
Or he may have some made to
other tangible motive which he can gently be disclose.
Perhaps the witness
is
only suffering from
that partisanship, so fatal to fair evidence, of which often-
times the witness himself
is
not conscious.
40
It
may even
THE MATIER OK CROSS-EXAMINATION be
that,
the jury only
if
knew
the scanty
means the
wit-
ness has had for obtaining a correct and certain knowl-
edge
of tiie very facts to
which he has sworn so
glibly,
aided by the adroit questioning of the opposing counsel, this in itself
of
would go
testimony.
his
It
toward weakening the effect
far
may
appear, on the other
had the best possible opportunity
that the witness
observe the facts he speaks
gence
of,
but had not the
witness the same occurrence and
when
called to the witness stand,
of the
?
All this
may
away with ;
but each,
willing to swear
Obviously, both accounts
Which had
wrong ?
it
to
intelli-
people
take
may be
same transaction cannot be
sions were
see
yet
entirely different impression of
to that impression as a fact.
to
Two
to observe these facts correctly.
them an
hand,
true
;
whose impres-
the better opportunity
Which had the keener power of perception ? we may very properly term the matter of our
cross-examination. It is
one thing
to
have the opportunity
of observation,
or even the intelligence to observe correctly, but
it is still
another to be able to retain accurately, for any length time,
what we have once seen or heard, and what
haps more gibly.
diflftcult still
— to be able
Many witnesses have
and heard about another fused in their
own
to describe
it
is
of
per-
intelli-
seen one part of a transaction
part,
and
later
on become con-
minds, or perhaps only in their modes
of expression, as to
what they have seen themselves and
what they have heard from 41
others.
All witnesses are
THE ART OF CROSS-EXAMINATION prone to exaggerate to
—
to enlarge or
minimize the
facts
which they take oath.
A
common type of witness, met with almost the man who, having witnessed some event
very
daily,
is
years ago, suddenly finds that he
He
court witness.
original impressions
is
to be called as a
immediately attempts to ;
and gradually, as he
recall his
talks with the
who is to examine him, he amplifies with new details which he leads himself, or
his story
attorney
led, to
is
believe are recollections and which he finally swears to as facts.
Many
know " answer
people seem to fear that an
will
Although
part. apt, in
perfectly honest in intention, they are
consequence, to complete their story by recourse
some part
own
don't
be attributed to ignorance on their
to their imagination. in
" I
beliefs
And
few witnesses
fail,
at least
of their story, to entangle facts with their
and
inferences.
All these considerations should readily suggest a line of questions, will, if
from
varying with each witness examined, that
closely followed, be likely to separate appearance
reality
proportions.
and to reduce exaggerations It
must further be borne
jury should not merely see the mistake
made
to appreciate at the time
It
is
fresher then and
if
left
until the
up,
in ;
mind
that the
they should be
why and whence
makes a more
summing
to their proper
it
arose.
lasting effect than
and then drawn to the
attention of the jury.
The
experienced examiner can usually 42
tell,
after a
few
THE MATTER OF CROSS-EXAMINATION simple questions, what line to j)ursue.
Picture the scene
your own mind; closely inquire into the sources of
in
own conclusions and why he formed his
the witness's information, and draw your to
as
how
his
mistake arose,
Exhibit plainly your belief
erroneous impressions. his integrity to beguile
and your desire
him
to
be
fair
in
with him, and try
Then when
into being candid with you.
the particular foible which has affected his testimony has
once been discovered, he can easily be led
to
expose
His mistakes should be drawn out often by
to the jury.
inference rather than by direct question, because If
connection between your inquiries and his
own
draw upon
wit-
story,
he
his imagination for explanations, before
you get the chance between
all
he sees the
nesses have a dread of self-contradiction.
will
it
to point out to
and
his later statement
him
the inconsistency
his original one.
It is
often wise to break the effect of a witness's story by putting questions to
him
that will acquaint the juiy at once
with the fact that there
is
another more probable story
to be told later on, to disclose to
defence, as
among
it
no respect on
;
he
Avoid the mistake,
the inexperienced, of
discrepancies.
sion or
were.
It
them something
common
so
making much
has been aptly said that
"
of the
of
trifling
juries
have
for small triumphs over a witness's self-posses-
memory." will
Allow the loquacious witness
be sure to involve himself
to talk
in diilficulties
which he can never extricate himself.
Some
from
witnesses
prove altogether too much; encourage them and lead 43
;
THE ART OF CROSS-EXAMINATION them by degrees with the
exaggerations that will conflict
into
common
Under no circum-
sense of the jury.
stances put a false construction on the words of a witness there are few faults in an advocate
more
fatal
with a
jury.
perchance, you obtain a really favorable answer,
If,
leave
it
and pass quietly
some other
to
inexperienced examiner in
all
The
inquiry.
probability will repeat the
question with the idea of impressing the admission upon his hearers, instead of reserving
and
will attribute
to
answer or modifies
his
He
lost.
is
it
is
who supposes
for the
it
if
up,
bad luck that his witness corrects it
in
some way,
so that the point
indeed a poor judge of
that
summing
human
nature
he exults over his success during
the cross-examination, he will not quickly put the witness
on
his
guard to avoid
all
future favorable disclosures.
David Graham, a prudent and successful cross-examiner, "
A
once
said,
perhaps more in
jest
than anything
else,
lawyer should never ask a witness on cross-examina-
tion a question unless in the
place he
first
knew what
the answer would be, or in the second place he didn't care."
This
who claimed
is
something on the principle
that the result of
most
trials
of the lawyer
depended upon
which side perpetrated the greatest blunders examination.
in
cross-
Certainly no lawyer should ask a critical
question unless he
is
sure of the answer.
Mr. Sergeant Ballantine, in his
an instance in the
trial
"
Experiences," quotes
of a prisoner
44
on the charge
of
THE
OF CROSS-EXAMINATION
MAT'I'KR
had
homicide, where a once famous Engh'sh barrister
been induced by the urgency of an attorney, although
own judgment,
against his
to
ask a question on cross-
examination, the answer to which convicted his client.
Upon
receiving the answer, he turned to the attorney
had advised him word,
Go home
"
your client
;
in hell,
and
it,
said,
cut your throat
beg
and when you meet
;
his pardon."
is
reluctant to develop the whole truth, so to
put questions that the answers you
may come by way
know
and
of a surprise
probability to the jury.
be elicited
will
in the light of im-
remember a recent
I
which occurred
illustrative of this point,
to
emphasizing every
sometimes, in a case where you believe that
It is well,
the witness
to ask
who
incident,
brought
in a suit
recover the insurance on a large warehouse
goods that had been burnt
to the
The
ground.
of
full
insur-
ance companies had been unable to find any stock-book
which would show the amount time of the
pened
fire.
One
goods
of
of the witnesses to the fire hap-
to be the plaintiff's bookkeeper,
examination
to
testified
in stock at the
all
nothing about the books.
who on
the details of
the direct
the
fire,
but
The cross-examination was
confined to these few pointed questions. " I
suppose you had an iron safe in your
which you kept your books "
Did
when
that it
burn up
was opened
?
"
"
of
account
Oh, no."
after the fire
^
— "
won't you be good enough to hand 45
''
"
?
"
"
office,
Yes,
Were you
Yes.
me
sir."
—
sir."
in
—
present "
Then
the stock-book
THE ART OF CROSS-EXAMINATION that
we may show
on hand
the jury exactly what stock you had
at the time of the fire
on which you claim
loss
" ?
(This was the point of the case and the jury were not
prepared for the answer which followed.) it,
sir."
—
"
lost
it ?
"
" It
wasn't in the safe,
"
Wasn't that the proper place
*'
How
was
it
evidently been
Some
that the
for
"
book wasn't there
jury at once
of the
that the all-important stock-book
and refused
it ? "
Yes, ?
out the night before the
left
haven't
You
What, haven't the stock-book ?
mean you have
take."
" I
"
don't
sir." sir."
" It
fire
— —
had
by mis-
drew the inference
was being suppressed,
with their fellows against the insur-
to agree
ance companies.
The average mind
is
much
wiser than
many
suppose.
Questions can be put to awitness under cross-examination, in
argumentative form, often with far greater effect upon
the minds of the jury than
if
the
same
were reserved for the summing up. the point for himself, as clings to
it all
examination
of
the
more
if it
were his
line of reasoning
The juryman sees own discovery, and
tenaciously.
Henry Ward Beecher,
During the
cross-
in the celebrated
Tilton-Beecher case, and after Mr. Beecher had denied his alleged intimacy with Mr. Tilton's wife.
Judge Ful-
Mr. Beecher's sermons
lerton read a passage
from one
to the effect that
a person commits a great
if
of
sin,
the
exposure of which would cause misery to others, such a
person would not be justified in confessing to relieve his
own
conscience.
46
it,
merely
Fullerton then looked
THE MAFTER OE CROSS-EXAMINATION straight into Mr. Beecher's eyes
and
consider that sound doctrine?" " I
The
do."
said, "
Do
you
still
Mr. lieecher replied,
inference a juryman might draw from this
question and answer would constitute a subtle argument
upon
that branch of the case.
The
entire effect of the testimony of an adverse wit-
ness can sometimes be destroyed by a pleasant
passage-at-arms in which he before the jury, and
you disappears
case a witness
sistently
up
who had been badgered
in the witness chair
^
and said
pertly, "
The
;
"
I
have not come
me
for
Held,"
re-
you take
Anna
supposing you try Ananias
witness was enraged, the jury laughed, and
lawyer,
up
Do
"I was not thinking of
plied the counsel quietly
rather per-
finally straightened himself
here asking you to play with me. "
to ridicule
laugh that accompanies him from
on cross-examination,
Anna Held ?
up
In a recent Metropolitan Street Rail-
the witness box.
way
finally held
that he has previously said against
all
in the
is
little
who had
really
to this time, sat
These
little
one-sided.
if
are,
and audience.
out of the witness
however, by no means always
the council gives
clever witness will counter fashion, certain to
on him
in a
him an opening, a most humiliating
meet with the hearty approval
At
the
down.
triumphs
Often,
made nothing
" !
of jury
the Worster Assizes, in England, a
case was being tried which involved the soundness of a *
This occurrence was
at the time
when
the actress
Anna Held was
her popular stage song, " Won't you come and play with me."
47
singing
THE ART OF CROSS-EXAMINATION horse,
and a clergyman had been called as a witness who
succeeded only in giving a rather confused account of
A
the transaction. after
many
blustering counsel on the other side,
attempts to get at the facts upon cross"
examination, blurted out,
Pray,
difference between a horse and a
my ignorance,"
replied the
do you know the
sir,
cow
" ?
clergyman
hardly do
" I
;
acknowledge
" I
know
the difference between a horse and a cow, or between a bull
— only a
and a bully
bull,
I
am
told,
has horns, and
a bully (bowing respectfully to the counsel), luckily me, has
none."
chapter to
the
^
Reference
It
tion
able
of success in this
may
of
in
a subsequent
Dr.
in the
related at length a striking
is
method
of examination.
not be uninteresting to record in this connec-
one or two cases in
made
cross-examination
Carlyle Harris case, where
example
is
for
illustrative of
cross-examination
where the
in
sole object of counsel
of the jury's verdict,
matter that
is
valu-
damage suits reduce the amount
personal is
to
and to puncture the
pitiful tale of
suffering told by the plaintiff in such cases.
A New
York commission merchant, named
sixty-six years of age,
open
car.
As
was riding
Columbus Avenue
the car neared the curve at Fifty-third
Street and Seventh Avenue, of closing
in a
Metts,
an open window
and while he was
in the act
in the front of the car at the
request of an old lady passenger, the car gave a sudden, violent lurch, and he was thrown into the street, receiv^
" Curiosities of .
Law and Lawyers."
48
"
THE MATTER OF CROSS-P:XAMINA HON ing injuries from which, at the time of the suffered for three years.
Counsel
for the plaintiff
ings in great detail. brain, loss of
went
I^laintiff
iiUo his client's suffer-
had had concussion
memory, bladder
difficulties,
was gone
of the
a broken leg,
nervous prostration, constant pain in his back. attempt to alleviate the pain attendant upon difficulties
he had
trial,
into with great detail.
And
these
all
To
the
cap
all,
the attending physician had testified that the reasonable value of his professional services was the modest sum
of
1^2500.
Counsel
made
for the railroad, before cross-examining,
had
a critical examination of the doctor's face and bear-
ing in the witness chair, and had concluded that, if pleasantly handled, he could be made to testify pretty nearly to the truth,
whatever
it
spar for an opening, and
dozen questions Counsel.
"
:
—
What
might it
"
Counsel.
no account "
" }
doctor
.?
may
That means, does call
an ordinary healthy
it,
of
it
not,
making much
man would
pass by
" ?
That
is right, sir."
Counsel {?>\\\^m^. "I hope you haven't got ease, doctor, have you t " '^
half-
He has what is knownas 'traumatic microsis.' " J/zV;w/j-,
of ailments that
Doctor.
first
medical name, doctor, would you give
the habit, or disease as you
as of
concluded to
came within the
to the plaintiff's present ailment
Doctor.
He
be.
49
this dis-
"
"
THE ART OF CROSS-EXAMINATION that
am
I
aware
Then we ought
"
Counsel. fair
Not
"
Doctor.
of, sir."
to be able to get a very
we
statement from you of this man's troubles, ought
not?"
hope
" I
Doctor.
so, sir."
The opening had been found;
witness was already
flattered into agreeing with all suggestions,
and warned
ao^ainst exagf^eration. "
Counsel.
Do
not practically
sixty-six
in
all
men who have
more or
less irritation of the "
Yes, that
You
reached the age of
very
is
bladder
common
?
with old men."
was deaf
one
ear.
noticed that he seemed to hear the questions asked
him
"
Counsel.
said Mr. Metts
in court particularly well
"
Counsel.
men
;
did you notice
in
" it ?
" I did."
Doctor.
of
first.
have troubles of one kind or another that result
Doctor.
I
Let us take up the bladder trouble
At
the age of sixty-six are not the majority
gradually failing in their hearing "
Doctor. Counsel.
Yes, "
sir,
" .?
frequently."
Frankly, doctor, don't you think this
man
hears remarkably well for his age, leaving out the deaf ear altogether
Doctor.
" I
?
think he does."
Counsel (keeping the
have even the
first
" I
ball rolling).
symptoms
of this
*
don't think
traumatic microsis,*
doctor."
Doctor
(pleased).
" I
haven't got 50
it
you
at all."
"
THE MATTER OK CROSS-EXAMINATION "
Counsel.
You
said Mr. Mctts had had concussitm of
Has not every boy who has
the brain.
ward, when skating on the
ice,
and struck
had what you physicians would brain
'
concussion of the
.?
plaintiff
Yes,
'*
"
Counsel.
sir."
But
understood you to say that
I
had had,
in addition,
you mean to
haemorrhages
Doctor.
"
That
is
to say,
microscope to find them Doctor.
"
That "
Counsel.
haemorrhages " I
"
Counsel.
" .?
is
one would have
}
right."
You do
not
mean
us to understand, doc-
him
of these
have cured him
You
get a good union
Doctor.
microscopic
?
;
that
is
right."
certainly were competent to set his it;
did you
has got a good, strong,
healthy
broken leg or you wouldn't have attempted
"
to take a
"
that you have not cured
Doctor.
of the brain.
They were microscopic haemorrhages."
"
Counsel.
this
us that he could have had haemor-
tell
rhages of the brain and be alive to-day
tor,
his head, also
"
Doctor.
Do
call
'
over back-
fallen
" }
Yes, he
leg."
Counsel having the required
by the
elicited,
"
smiling method,"
admissions, suddenly changed
his
whole
bearing toward the witness, and continued pointedly Coujtsel
"And you
and reasonable charge
said that for
$2500 would be a
your services.
51
It
is
all
:
—
fair
three
"
THE ART OF CROSS-EXAA4INATION Have you
years since Mr. Metts was injured.
no
bill
"
Doctor.
Yes,
sir,
Let
"
Counsel.
him
have."
I
me
see
(Turning
it.
Will either of you
counsel.)
" I
Doctor.
haven't
me
let
to
plaintiff's
have the
bill.?"
sir."
it,
Counsel (astonished).
"
What was
the
amount
of
" it }
"$iooo."
Doctor.
Counsel (savagely).
company two and
counsel).
do you charge the railroad
much
as
you charge
" }
Doctor (embarrassed "
Why
"
a half times as
the patient himself
of
sent
?
You
at
this
sudden change on part
me what my
asked
services were
worth."
worth
Didn't you
"
Counsel.
your services
of
charge your patient the
full
" .?
Doctor (no answer). "
Counsel (quickly).
on your
bill
years ago
me
— on your oath He
"
Doctor. ;
How much
and
paid at
have you been J>aid
" }
me ^loo
at
one time, that
two
different times since
he
is
is,
two
he has paid
$30."
Counsel.
down town
"
And
!
and a laugh counsel
An
a rich
commission merchant
(And with something between a sneer
"
amusing
sat down.)
incident, leading to
the exposure of a
manifest fraud, occurred recently in another of the
damage
suits
many
brought against the Metropolitan Street 52
THE MATTER OF CROSS-EXAiMINATION Railway and growing out of a
collision
between two
of
the company's electric cars.
The street
plaintiff,
a laboring man, had been thrown to the
pavement from the platform
of
the car by the
force of the collision, and had dislocated his shoulder.
He
had
testified
in
his
own
permanently injured in so to follow his usual
behalf that he had been
he had not been able
far as
employment
for the reason that
he
could not raise his arm above a point parallel with his
Upon
shoulder.
cross-examination the attorney for the
railroad asked the witness a few sympathetic questions
about his sufferings, and basis with
him asked him
upon getting on a friendly " to
be good enough to show
the jury the extreme limit to which he could raise his
arm
since the accident."
The
plaintiff slowly
considerable difficulty raised his
arm
and with
to the parallel of
Now, using the same arm, show the jury how high you could get it up before the accident," his
shoulder.
"
quietly continued the attorney
extended his arm to
its full
;
whereupon the witness
height above his head, amid
peals of laughter from the court
and
jury.
In a case of murder, to which the defence of insanity
was
set up, a medical witness called
on behalf
of the
accused swore that in his opinion the accused, at the time he killed the deceased, was affected with a homicidal mania,
pulse.
witness
The
and urged
to the act
by an
irresistible im-
judge, not satisfied with this,
some questions on other 53
first
subjects,
put the
and then
THE ART OF CROSS-EXAMINATION Do you
asked,
"
he did
if
a
think the accused would have acted as
poHceman had been present ?
"
witness at once answered in the negative. the judge remarked, "
Your
when
a policeman
is
which the
Thereupon
definition of an irresistible
impulse must then be an impulse except
to
irresistible at all
present."
54
times
CHAPTER
IV
CROSS-EXAMINATION OF THE PERJURED WITNESS
CHAPTER
IV
CROSS-EXAMINATION OF THE PERJURED WITNESS In the preceding chapters
it
was attempted to
offer a
few suggestions, gathered from experience, for the proper handling of an honest witness who, through ignorance or partisanship, fied to a
less unintentionally,
and more or
mistaken state
the litigation. discuss the far
of facts injurious to
In the present chapter
more
difficult
it
is
had
testi-
our side
of
proposed to
task of exposing, by the
perarts of cross-examination, the intentional Fraud, the
jured witness. the
trial
little
lawyer
Here is
that the greatest ingenuity of
it is
called into play
compared with years
as
can be conceived more
here rules help but
of actual experience.
difficult
task of proving a witness,
;
whom
in
What
advocacy than the
you may neither have
seen nor heard of before he gives his testimony against you, to be a wilful perjurer, as it were out of his own
mouth ? It
false
of
seldom happens that a witness's entire testimony is from beginning to end. Perhaps the greater part
it is
ever,
true,
— the may turn —
and only the crucial part
on which the whole case 57
point, is
how-
wilfully
THE ART OF CROSS-EXAMINATION false.
If,
end
at the
we conclude
of his direct testimony,
—
to continue we have to cross-examine the imaginary trial we were conducting in the previous comes under this class, what means are we to chapter employ to expose him to the jury? Let us first be certain we are right in our estimate
that the witness
—
of
— that
him
one
of the
The
so.
called
Embarrassment
he intends perjury.
emblems
of perjury, but
by no means always
novelty and difficulty of the situation
upon
lawyers on
room
to testify before a
full of
occasions embarrassment in witnesses
Then again some people
integrity.
— being
people, with
sides ready to ridicule or abuse
all
is
— often highest
the
of
are constitutionally
nervous and could be nothing else when testifying in
open
court.
Let us be sure our witness
is
not of this
type before we subject him to the particular form of torture
we have
Witnesses
in store for the perjurer.
of a
low grade
testify falsely, usually display
voice, in
of intelligence, in various
it
when they
ways
:
in the
a certain vacant expression of the eyes, in a
nervous twisting about in the witness chair,
in
an ap-
parent effort to recall to mind the exact wording of their story,
and especially
to their station
in
in the use of
On
life.
something about the manner witness that makes
lawyer that he actually seen
is
it
at
language not suited
the other hand, there of
is
an honest but ignorant
once manifest to an experienced
narrating only the things that he has
and heard.
The 58
expression of the face
CROSS-EXAMINATION OF PKRJURED WITNESS chanfres with
the narrative
he
as
mind; he looks the examiner
his
the scene to
rcf;alls
the face; his
in
full
eye brightens as he recalls to mind the various incidents;
he uses gestures natural
and
them
suits
and he
tells
in his station of life,
to the part of the story he
his tale in his
is
narrating,
own accustomed
language.
however, the manner of the witness and the wording
If,
of his testimony bear is
man
to a
often
your
as
useful,
by
repeat
will
as before,
Of course
heart.
it is
Try him by taking him
story,
to the
end
of
If
it.
He
the middle of his
is
to the
beginning
speaking by rote
succumb
has no facts with which to associate
the wording of his story; he can only call as a whole, and not in detachments.
Draw
these
by himself.
new
inquiries,
for answers.
part of his
main
to
which you had
mind
stor}^
will
be entirely unprepared for
and
will
draw upon
his imagination
some new
main story and then suddenly, when
upon another
to
He
Distract his thoughts again to
is
the
it
his attention
to other facts entirely disassociated with the
as told
almost
telling the
rather than from recollection, he will be sure to to this method.
to
though not
is
still
to
he
it
showing he has
and from there jump him quickly
and then
in
it
possible,
probable, that he has done this and truth.
him
question, to ask
first
same words
identically the it
the earmarks of fabrication,
Usually he
repeat his story.
learned
all
his
mind
subject, return to those considerations first
called his attention,
same questions a second 59
time.
He
and ask him
will
again
fall
THE ART OF CROSS-EXAMINATION back upon his imagination and very different
the net.
answer from the
He
first
likely will give a
— and you
cannot invent answers as
swers
all
he
;
will
apparent that he
is
is
testified to
given in the Green
"
The
it
and pointing straight
high, impassioned voice,
'
Mr. Mason
and again
it
was
surprise, the witness
paper
Let's see that !
'
Taken com-
mechanically drew a paper
from the pocket indicated, and handed
in
a certain
at the witness said,
you've got in your waistcoat pocket
The lawyer
for
Then, without warning, he walked
repeated verbatim.
by
Bag
of that state-
was based.
led the witness round to his statement,
pletely
make
client
was upon the evidence
that the adversary's case
to the stand,
it
witness had previously
having heard Mason's
statement, and
his
your
on, will be at
one of Jeremiah Mason's cross-exami-
of
nations of such a witness.
in
soon
will
not mistaken, but lying.
amusing account
November, 1891,
ment
He
Let him go as soon as you have made
mercy.
An
his
not keep his an-
consistent with one another.
become confused and, from that time
you can
remember
invent questions, and at the same time
previous inventions correctly
have him in
fast as
it
to
Mr. Mason.
slowly read the exact words of the witness
regard to the statement, and called attention to the
fact that they
were in the handwriting
lawyer on
of the
the other side. "
'
Mr. Mason,
paper was there
how under t
'
the sun did you
know
asked a brother lawyer. 60
'
that
Well,'
CROSS-EXAMINATION OK PKRJUREI) WITNESS replied Mr.
Mason,
testimony just as
'
if
time he repeated
I
thought he gave that part
he'd heard
he
it
it,
his
j)ut
and
hand
I
of his
noticed every
to his waistcoat "
when he got through.' Daniel Webster considered Mason the greatest lawyer He said that ever practised at the New England Bar. of him, " I would rather, after my own experience, meet
pocket, and then
all
the lawyers
let it fall
again
have ever known combined
I
in
a case,
Mason was
than to meet him alone and single-handed.'*
always reputed to have possessed to a marked degree "
the instinct for the
weak point
" in
the witness he was
cross-examining. If
perjured testimony in our courts were confined to
the ignorant classes, the
work
them
of cross-examining
would be a comparatively simple matter, but unfortunately for the cause of truth and justice this is far from the case.
Perjury
present time
is
decidedly on the increase, and at the
scarcely a trial
does not appear in a more or ing in the
trial of
a cause
is
is
conducted
in
which
less flagrant form.
it
Noth-
so difficult as to expose the
perjury of a w^itness whose intelligence enables him to
hide his lack of scruple.
attempting the proper It all
it,
There are various methods
but no uniform rule can be laid
manner
to
down
as to
be displayed toward such a witness.
depends upon the individual character you have
unmask.
of
In a large majority of
to
cases the chance of
success will be greatly increased by not allowing the witness to see that
you suspect him, before you have 6i
led
him
'
THE ART OF CROSS-EXAMINATION commit himself
to
as to various matters with
have reason to beheve you can confront him
Two
famous cross-examiners
Sergeant Sullivan, afterwards Ireland, his
"
the
at
and Sergeant Armstrong.
Life
of
Bar were
the Rolls in
Barry O'Brien, in
Lord Russell," describes
of
later on.
Irish
Master
which you
methods.
their
"Sullivan," he says, "approached the witness quite in a friendly way,
seemed
to be
an impartial inquirer seek-
ing information, looked surprised at what the witness
appeared even grateful for the additional light
said,
thrown on the said so
Well,
case.
'
Ah, indeed
Well, as you have
!
much, perhaps you can help us a
my
really,
Lord, this
is
little
further.
a very intelligent man.'
So playing the witness with caution and skill, drawing him stealthily on, keeping him completely in the dark about the real point waited until the at
man was
him and shook him "
The
'
big
of
in the
as a terrier
Sergeant
and more power, but
attack,
'
the
'
little
sergeant
meshes, and then flew
would a
rat.
(Armstrong) had more humor
less dexterity
and resource.
His
weapon was ridicule. He laughed at the witness and made everybody else laugh. The witness got con-
great
fused and lost his temper, and then Armstrong pounded
him In
two
like a
champion
some
cases
it
salient points
in the ring."
is
wise to confine yourself to one or
on which you
feel
confident you can
get the witness to contradict himself out of his
mouth.
It
is
own
seldom useful to press him on matters 62
'
CROSS-EXAMINATION OF PERJURED WITNESS with which
he
is
famiHar.
It
the safer course to
is
question him on circumstances connected with his story,
but to which he
lias
not already testified and for which
he would not be Hkely to prepare himself.
A simple but instructive example conducted along these
Donovan's that
it
Tact
quoted from Judge
lines, is
in Court."
occurred in
murder "
"
Abraham
of cross-examination,
It
J.
W.
doubly interesting
is
Lincoln's
first
in
defence at a
trial.
Grayson was charged with shooting Lockwood
camp-meeting, on the evening of August
18
9,
—
at a ,
and
with running away from the scene of the killing, which
was witnessed by Sovine.
The
proof was so strong that,
even with an excellent previous character, Grayson came very near being lynched on two occasions soon after his indictment for murder. "
The mother
of
the accused, after failing to secure
young Abraham Lincoln,
older counsel, finally engaged as he
was then
hearing.
No
called,
and the
objection was
trial
made
came on to the
cross-examination of witnesses, save the
important one,
who swore
that he
the shot fired by Grayson, saw
up the deceased, who died
knew
to
an early
jury,
and no
last
and only
the parties,
saw
him run away, and picked
instantly.
The evidence of guilt and identity was morally certain. The attendance was large, the interest intense. Grayson's mother began to wonder why Abraham remained silent so long and why he didn't do something "
'
!
63
:
' '
'
''
THE ART OF CROSS-EXAMINATION The
The
people finally rested.
tall
lawyer (Lincoln)
stood up and eyed the strong witness in silence, without
books or notes, and slowly began his defence by these questions ''Lincoln.
'And you were
and saw the shooting ? " Witness. "
Lincoln.
"
Witness.
"
Lincoln.
"
Witness.
And you
'
May
'
'
" Lincoln.
'
" Witness.
'
'
Lincoln.
"
Witness.
"
Lincohi.
What
Witness.
"
Lincohi.
"
Witness.
"
Lincoln.
"
Witness.
"
Lincoln.
" Witness.
or more'
feet *
field
1
kind of timber.?
Beech
'
timber.'
Leaves on
it
are rather thick in
August ?
Rather.'
'
And you think this pistol was the one used t
'
It
'
looks like
You
'
all
about
How
it ?
near was this to the meeting place
Three-quarters of a mile away.'
'
Where were
'
— see how
'
Yes.'
'
'
'
Up by
the lights
?
the minister's stand.'
Three-quarters of a mile away.?
'
'
Yes,
—
I
'
it.'
could see defendant shoot
the barrel hung, and "
?
No, in the timber.'
'
" Wit7iess. "
was twenty
it
'
}
feet away.'
not have been ten feet
it
In the open
Witness.
Lincoln.
No,
'
"
"
stood very near to them
No, about twenty
'
Lincoln.
just before
Yes.'
'
"
Lockwood
with
'
answered ye twiste' 64
.f*
'
'
'
'
:
CROSS-EXAMINATION OF PERJURP:D WITNESS 'Did
^"•Lincoln.
or Grayson
Lockwood "
Witness.
"
Lincoln.
"
Witness.
No
'
!
with
?
what would we want a candle
?
for
How, then, did you see the shooting? By moonlight (defiantly). 'You saw this shooting at ten at night '
'
!
—
beech timber, three-quarters of a mile from the lights
— saw
the pistol barrel
twenty feet away
"
Witness.
"
The
'
Yes,
interest
— saw
— saw
nearly a mile from the
camp
told
I
all
it
man
the
lights
you so
it
slowly
it
Then it
with careful deliberation that the
was unseen and only arose "
Following
this
Nothing but a motive to
it
as
!
'
coat
side
his
in evidence
—
from a page that night
morning.
at one the next
moved
the arrest
the real murderer, saying
to clear
himself could have
swear away so falsely the
never did him harm
the lawyer
moon on
climax Mr. Lincoln
of the perjured witness
duced him
Saw
?
before.'
— offered the jury and the court — read
to
it
was now so intense that men leaned
— opened
showed
— saw
?
drew out a blue-covered almanac from pocket
fire
by moonlight
forward to catch the smallest syllable.
'
there,
'
" Liiicoln.
in
you not sec a candle
life
of
in-
one who
With such determined emphasis
did Lincoln present his showing that the court ordered
Sovine arrested, and under the strain of excitement he broke down and confessed to being the one who the fatal shot himself, but denied
A
difficult E
it
was
fired
intentional."
but extremely effective method of exposing 65
THE ART OF CROSS-EXAMINATION a certain kind of perjurer
is
point in his stoiy, where
—
question
"
Which
" ?
— he
him gradually
to lead in
answer to the
his
him
which would degrade
left
to him,
not entirely discredit
if
in the eyes of the jury.
The writer once heard make very telling use of
A
final
have to choose either one
will
or the other of the only two explanations either of
to a
the Hon. Joseph H. Choate this
method
of examination.
stock-broker was being sued by a married
woman
for
the return of certain bonds and securities in the broker's possession,
which she alleged belonged
Her
to her.
husband took the witness-stand and swore that he had deposited the securities with the stock-broker as collat-
market speculations, but that they did
eral against his
not belong to him, and that he was acting for himself
and not as agent ties It
unknown
for his wife,
and had taken her
securi-
to her.
was the contention
bonds belonged to the
Mr. Choate
of
wife, she
that,
even
if
the
had either consented
to
her husband's use of the bonds, or else was a partner
with him in the transaction.
Both
of these contentions
were denied under oath by the husband.
Mr.
Choate.
speculations in
"
When
you ventured into the realm
Wall Street
I
of
presume you contemplated
the possibility of the market going against you, did you not.?"
Witness. Street to
"Well, no, Mr. Choate,
make money,
not to lose 66
it."
I
went into Wall
"
CROSS-EXAMINATION OF PERJURED WirNESS Mr. you
"Quite
Choale.
to expectations
Mr.
"
?
Oh, "
Choate.
yes,
You
I
suppose
"
Yes,
does."
it
say the bonds were not your
property, but your wife's
Witness.
but you will admit, will
sometimes the stock market goes contrary
not, that
Witness.
so, sir;
?
sir."
And you say that
she did not lend them
Mr.
CJioate.
you
for purposes of speculation, or even
to
"
Witness.
Mr.
Yes,
Choate.
ited the
"
know you had
"
possession of them "
own
"
.?
sir."
You even admit
when you depos-
that
collateral against
bonds with your broker as
your stock speculations, you did not acquaint him with the fact that they were not your
Witness. were,
" I
did
own
property
" t
not mention whose property they
sir."
Mr.
"
sir,
in the
event of the market going against you and your
collat-
eral
CJioate (in his inimitable style).
being sold to meet your
to cheat,
The for
losses,
your broker or your wife ? witness could give
once a
New York
Well,
whom
did you i^itend
"
no satisfactory answer, and
jury w^as found
to give a verdict against the
who were
customer and
willing
in favor of a
Wall Street broker. In the great majority of cases, however, the most skilful
efforts
of
the
witness into such
"
cross-examiner will traps
"
as these.
^7
If
fail
to lead the
you have accom-
THE ART OF CROSS-EXAMINATION plished one such
have made witness
But
sit
;
let
whom
;
do not
There There
as
if
you desire
Try
show
to
and
it
a certain answer, "
just the opposite one.
such occasions.
If
damaging
if
the
Ask
skilfully.
when
in reality
Hold your own tem" is
a Golden
you allow the witness a
chance to give his reasons or explanations, you sure they will be
If
something
try
weak spot somewhere,
Frame your questions
you wanted
all
known
or with other
itself,
per while you lead the witness to lose his
Rule on
that his
with the ordinary experience of man-
surely a
is
will require
a wonderful power in persistence.
perjured.
is
them
is
Here you
possible.
one quarter, abandon
in
fail
story
is
inconsistent with
is
else.
the witness leave the stand.
and industry.
facts in the case, or
you
let
same
the
us suppose you are examining a witness with
no such climax
kind.
make another with
try to
down and
infinite patience
story
be content with the point you
cotip,
to you, not to him.
may If
be
you
can succeed in tiring out the witness or driving him to the point of sullenness,
you have produced the
effect of
lying.
But
it
is
not intended
to advocate the
practice of
lengthy cross-examinations because the effect of them, unless the witness
is
broken down,
is
to lead the jury to
exaggerate the importance of evidence given by a witness
who
requires so
to upset him.
a remarkable
"
much
cross-examination in the attempt
During the Tichborne
man named Luie was 68
trial for
perjury,
called to testify.
He
CROSS-EXAMINATION OF PERJURED WITNESS was a shrewd witness and
told his talc with wonderful
That
precision and apparent accuracy.
was untrue
it
there could hardly be a question, but that
could be
it
proved untrue was extremely doubtful and an almost hopeless task.
was an improbable
It
not an absolutely impossible one.
story, but true,
If
was
still
however, the
claimant was the veritable Roger Tichborne, or at least the probabilities would be so immensely in favor of that
supposition that no jury would agree in finding that he
His manner
was Arthur Orton.
was
After the
perfect.
what he thought
trial
one of the jurors was asked
Luie's
of
of giving his evidence
evidence, and
He
attached any importance to his story.
he ever
if
replied that
the evidence-in-chief he thought
at the close of
improbable that no credence could be given to after
But
it.
Mr. Hawkins had been at him for a day and could
not shake him,
I
began
to think,
if
as that cannot touch him, there
what he stand
so
it
and
says,
how
was
it
began
I
that,
if
such a cross-examiner
must be something
it
to waver.
was
I
in
could not under-
all lies, it
did not break
down under such able counsel." The presiding judge, whose slightest word ^
than the eloquence of counsel,
will
is
weightier
often interrupt an
aimless and prolonged cross-examination with an abrupt, "
Mr.
,
I
not allow you
think to
we
are wasting time," or "
pursue that subject further," or
not see the object of this examination." 1
'*
Hints on Advocacy," Harris.
69
This
I
shall
" I
can-
is
a set-
THE ART OF CROSS-EXAMINATION back from which only the most experienced advocate can Before the judge spoke, the jury, per-
readily recover.
haps, were
already a
tired
little
and inattentive and
mood
anxious to finish the case; they were just in the agree with the remark of his Honor, and the of the case," as
I
have always termed
it,
was
ing unfavorable to the delinquent attorney's
important a part in the
outcome
final
of
to
atmosphere becom-
fast
How
client.
every
this
trial
Many jurymen
atmosphere of the case usually plays! lose sight of the parties to the litigation
"
— our
clients
wits going
in their absorption over the conflict of
— on
between their respective lawyers. criminal prosecutions where local politics are
It is in
involved, that the jury system
The
est test.
by
is
ordinary juryman
his political prejudices that
cence
perhaps put to
of the prisoner at the
is
sever-
its
so apt to be blinded
where the
guilt or inno-
Bar turns upon the question
as to whether the prisoner did or did not perform act,
some
involving a supposed advantage to his political party,
the jury
apt to be divided upon political lines.
is
About
when a wave of political reform was sweeping over New York City, the Good Government Clubs caused the arrest of about fifty inspectors of
ten years ago,
election for violations of the election laws.
men were
all
brought up for
trial in
the
Supreme Court
criminal term, before Mr. Justice Barrett. ers
were
to
be defended by various leading
and everything depended upon the 70
These
The trial
prison-
lawyers,
result of the first
few
CROSS-EXAMINATION OF PERJURED WITNESS cases tried.
If
these trials resulted in acquittals,
anticipated that there would be acquittals line
;
the
if
first
and sentenced
offenders to
on
i)ut
terms
severe
aloiv^ the
all
were convicted
trial
in
was
it
the
prison,
great
majority of the others would plead guilty, and few would escape.
At for
New York
that time the county of
purposes of
1067
into
voting,
was divided,
election
districts,
and on an average perhaps 250 votes were cast each
An
district.
districts
was the
against
him was
inspector
first
In
had been 167
called for
the
of
election
The charge
trial.
the failure to record correctly the vote
this
particular
ballots cast,
inspectors to count
Republican candidate for
for the
cast in his district
alderman.
man
one
of
in
and
district
there
was the duty
of the
election it
them and return the
result of their
count to police headquarters.
At
the
trial
twelve respectable citizens took the wit-
ness chair, one after another, and affirmed that they lived in the prisoner's election district,
ballots official
all
cast their
on election day for the Republican candidate. count for that
was then put votes,
and had
167;
in
district,
evidence,
Republican,
The
signed by the prisoner,
which
read:
Democratic
There were a number
o.
of
by the defence who were Democrats. The case began to take on a political aspect, which was
v^itnesses called
likely to result in a divided jury it
and no conviction, since
had been shown that the prisoner had a most excellent 71
;
THE ART OF CROSS-EXAMINATION reputation and had never been suspected of wrong-doing Finally the prisoner himself was sworn in his
before.
own
behalf.
was the attempt
It
of the cross-examiner to leave the
witness in such a position before the jury that no matter
what
their politics
they could not avoid con-
be,
There were but
victing him. "
Cotnisel.
might
You have
five questions asked.
told us,
sir,
you have a wife
that
and seven children depending upon you
presume your desire is it
not
is
not to be obliged to leave them
?
" "
Counsel.
Most
assuredly,
Sing Sing prison "
Prisoner. "
Counsel.
sir."
Apart from that consideration
you have no particular desire
citizens
I
"
Prisoner.
in
for support.
to
spend a term of years
" }
Certainly not,
sir."
Well, you have heard twelve respectable
take the witness-stand
the Republican ticket
Prisoner.
presume
I
"
Yes,
in
your
and swear they voted
district,
have you not
" .?
sir."
Counsel (pointing to the
jury).
"
And you
see these
twelve respectable gentlemen sitting here ready to pass
judgment upon the question
of
your
liberty,
do you
not?" Prisoner.
" I do, sir."
Counsel (impressively, but ,
you
quietly).
will please explain to these
(pointing to jury)
how
it
was that the 72
"
Well, now, Mr.
twelve gentlemen ballots cast
by the
CROSS-EXAMINATION OF PERJURED WITNESS other twelve gentlemen were not counted by you, and
then you can take your hat and walk right
fjut of
the
court room a free man."
The
down
witness hesitated, cast
no answer
— and counsel
sat
Of course a conviction sentenced to
five
made
his eyes, but
down.
The
followed.
prisoner was
During
years in state prison.
the
following few days nearly thirty defendants, indicted for similar offences, pleaded guilty,
and the
entire
work
of
There
the court was completed within a few weeks.
was not a single acquittal or disagreement. Occasionally,
when
knowledge
sufficient
of facts
about
the witness or about the details of his direct testimony
may be
can be correctly anticipated, a trap
in the illustration that
which even a clever witness, as follows, will
be likely to
During the
fall.
lifetime of Dr.
few physicians
in this
J.
W. Ranney who were
country
there were
so frequently
seen on the witness-stand, especially in damage
So expert a witness had he become
Van Brunt many " Any lawyer who ney
a fool."
is
Ranney
A
years ago
is
tive,
fully
that Chief Justice
said to have remarked,
case occurred a few years before Dr.
where a
would have been tantamount though
suits.
attempts to cross-examine Dr. Ran-
died, however,
ment, and the
into
set
trial
failure to cross-examine to
a confession of judg-
lawyer having the case in charge,
aware of the dangers, was
and as so often happens where 73
"
left
fools
no
alterna-
msh
in,"
THE ART OF CROSS-EXAMINATION made one
of those
lucky
" bull's
eyes
"
that
is
perhaps
worth recording. It
was a damage case brought against the
city
by a
way from church one spring morning, had tripped over an obscure encumbrance in the street,
lady who, on her
and had,
in
practically bedridden
consequence, been
for the three years leading
up
to the
was brouo-ht into the court room
day
She
of trial.
in a chair
and was
placed in front of the jury, a pallid, pitiable object, sur-
rounded by her
women
friends,
who
acted upon this occa-
sion as nurses, constantly bathing her hands and face
with ill-smelling ointments, and administering restoratives,
with marked effect upon the jury.
Her
counsel. Ex-chief
Noah
Justice
Davis, claimed
that her spine had been permanently injured, and asked
the jury for $50,000 damages. It
appeared that Dr. Ranney had been in constant
attendance upon the patient ever since the day of her accident.
He
testified
that he
had visited her some
three hundred times and had examined her minutely at least
two hundred times in order to make up his mind
as to the absolutely correct diagnosis of her case,
he was now thoroughly disease of the spinal
marrow
him a few preliminary doctor his head and
them
all
about
it."
satisfied
let
Dr.
was one
of
which
genuine
itself.
Judge Davis asked
questions,
and then gave the
him "turn
to the jury
and
tell
Ranney spoke uninterruptedly
for nearly three-quarters of
an hour.
74
He
described in
CROSS-EXAMINATION OF PERJURED WITNESS detail the sufferings of his patient since she
had
under his care;
the hope-
less
his efforts to relieve her pain
most impressive way and
in
a
to picture to the jury the gradual it
assumed the
the close of this recital, without a question
more, Judge Davis said
Do you
wish
to
in a
— was
calm but triumphant tone,
cross-examine
the point in dispute
merits
The
proceeded
another until death became a blessed
after
At
relief.
Now
;
creeping paralysis, involving the destruction of
of
one organ
the
then
relentless progress of the disease as
form
"
He
nature of her malady.
Ijeen
the
" ?
— there was no defence
nature
of
the patient's
on
malady.
medical witnesses were unanimous that the
city's
lady had not, and could not have, contracted spinal disease from
the
slight
styled her complaint patient's
mind
alone,
injury she as
had received.
"hysterical,"
existing
They in
a single diseased organ; but the jury evidently lieved Dr.
on
Ranney, and were anxious
his testimony.
He must
lute failure could be
was evident
that,
the
and not indicating nor involving all
to render a verdict
be cross-examined.
no worse than
along expected
be-
silence,
lines,
Abso-
though
questions
it
relat-
ing to his direct evidence would be worse than useless.
Counsel was well aware of the doctor's reputed of resource,
and quickly decided upon
The cross-examiner
first
fertility
his tactics.
directed his questions toward
developing before the jury the fact that the witness had
been the medical expert for the 75
New
York,
New
Haven,
THE ART OF CROSS-EXAMINATION New York
thirty-five years, for the
and Hartforcl R. R.
New York
Central R. R. forty years, for the
and Har-
lem River R. R. twenty
years, for the Erie R. R. fifteen
and so on
the doctor was forced to admit
years,
that he
until
was so much
in court as a witness in
these various railroads,
and was so occupied with
he had but comparatively
affairs that
to his reading
and private
Counsel (perfectly
defence of
little
their
time to devote
practice. "
quietly).
Are you
able to give us,
name of any medical authority that agrees with you when you say that the particular group of symptoms existing in this case points to one disease and
doctor, the
one only
" }
"
Doctor.
Oh, "
Counsel.
yes, Dr.
Who is
Ericson agrees with me."
Dr. Ericson,
if
you please
Doctor (with a patronizing smile).
" ?
"Well, Mr.
,
Ericson was probably one of the most famous surgeons that
England has ever produced."
in the
titter
audience at the expense of counsel.)
"What book
Counsel.
Doctor '
(There was a
(still
Ericson on
smiling).
has he written "
He
has written a book called
the Spine,' which
known work on
the
subject."
" }
is
altogether the best
(The
titter
among
the
audience grew louder.) "
Counsel. "
Doctor. Counsel.
so
much
When
About "
Well,
was
this
book published 1
"
ten years ago."
how
is
it
that a
man whose
occupied as you have told us yours 76
time is,
is
has
CROSS-EXAMINATION OF PERJURKD wriNKSS enough
leisure
to look
they agree with him
Doctor
half suspected
tion
;
so this
if
?
beaming on
(fairly
you the
to tell
up medical authorities to see
"
truth,
I
counsel).
"
Well, Mr.
have often heard
you would ask me some such
morning took
after
my
I
foolish ques-
and
breakfast,
down from my
,
yrm, and
of
before
my
copy
starting for court,
I
of Ericson's book,
and found that he agreed entirely with
my
G^^^/^i"*?/
up
(Loud laughter
diagnosis in this case."
of counsel, in
his
which the jury
deliberately
view of
expense
at
joined.)
(reaching under the counsel table and taking
own copy
enough
library
up
of
"Ericson on the Spine," and walking "
to the witness).
to point out to this case
me where
Won't you be good Ericson adopts your
" }
Doctor (embarrassed).
"
Oh,
I
can't
do
it
now
;
it is
a
very thick book."
Counsel "
But you
some such
(still
holding out the book to the witness).
forget, doctor, that thinking
foolish question,
I
might ask you
you examined your volume
of
Ericson this very morning after breakfast and before
coming
to court."
Doctor (becoming more embarrassed and to take the book).
Counsel.
" I
have not time
"-Time! why there
is
to all
do
it
the
still
now^" time in the
world."
Doctor,
(no answer).
Counsel and witness eye each other .77
refusing
closely.
THE ART OF CROSS-EXAMINATION Counsel
(sitting
down,
the court will allow
me
still
have had time
you
shall
this
morning
suspend
to
" I
eying witness).
my
sure
examination until
you read
to turn to the place
in that book,
am
and can reread
it
now aloud
to the jury."
Doctor (no answer).
The
room was
court
The
minutes.
in deathly silence for fully three
witness wotildiit say anything, counsel
didnt dare
for plaintiff
the city didnt
want
to say anything
had caught the witness the
to say anything, ;
and counsel
he saw that he
in a manifest falsehood,
doctor's whole testimony
for
and that
was discredited with the
jury unless he could open to the paragraph referred to
which counsel well knew did not
exist in the
whole work
of Ericson.
At
the
expiration
who
Barrett,
was presiding at the
the witness and asked question, and
answer
it
a few
of
upon
him
if
minutes, trial,
Mr.
Justice
turned quietly to
he desired to answer the
his replying that
he did not intend to
any further than he had already done, he was
excused from the witness-stand amid almost breathless silence in the court room.
As he
passed from the wit-
ness chair to his seat, he stooped and whispered into the ear of counsel,
man
I
"
You
are the
est
most impertinent
have ever met."
After a ten days'
trial
the jury were unable to forget
the collapse of the plaintiff's principal witness, and failed to agree
upon a
verdict.
78
CHAPTER V CROSS-EXAMINATION OF EXPERTS
CHAPTER V CROSS-EXAMINATION OF EXPERTS In these days
but
it
when
it is
becomes necessary
of everything
thing, the expert
is
civil
everything,
any avocation
for success in
know something ness both in
know
impossible to
and everything
more and more and criminal
called
upon
to
some-
as a wit-
In these times
cases.
of specialists, their services are often
of
needed to aid the
jury in their investigations of questions of fact relating to
subjects with which the ordinary
The
cross-examination
of
man
not acquainted.
is
various
experts,
whether
medical, handwriting, real estate, or other specialists, a subject of this
growing importance, but
chapter merely to
make some
it
is
intended
less
in
suggestions, and to
give a few illustrations of certain methods that
adopted with more or
is
may be
success in the examination of
this class of witnesses. It
has become a matter of
common
observation that
not only can the honest opinions of different experts be
obtained upon opposite sides of the same question, but also that dishonest opinions
ferent sides of the F
may
be obtained upon
same question. 8i
dif-
— THE ART OF CROSS-EXAMINATION Attention
mere matters
is
of scientific fact
For example
ion.
certain
:
the
to
also called
distinction
and mere matters
of opin-
medical experts
may be
which are not
called to establish certain medical facts
mere matters
could not disagree
known
well
it is
On
of opinion. ;
such facts the experts
but in the province of mere opinion
much among
that the experts differ so
themselves that but
between
little
credit
is
given to mere expert
opinion as such.
As
a general thing,
it is
unwise
for the cross-examiner
own
field of
Lengthy cross-examinations along the
lines of
to attempt to cope with a specialist in his inquiry.
the expert's theory are usually disastrous and should
be attempted.
rarely
Many
lawyers, for example, undertake to cope with a
medical or handwriting expert on his
own ground,
surgeiy, correct diagnosis, or the intricacies of
In
ship.
some
rare instances
poorly educated physicians) tioning ever,
it
is
this
productive of results.
penman-
(more especially with
method
More
of cross-ques-
frequently,
how-
only affords an opportunity for the doctor to
enlarge upon the testimony he has already given, and to explain what might otherwise have been misunderstood or even entirely overlooked by the jury. led
me
Experience has
to believe that a physician should rarely be cross-
examined on
his
own
specialty, unless the
importance of
the case has warranted so close a study by the counsel of the particular subject under discussion as to justify the 82
CROSS-EXAMINATION OF EXPERTS experiment
and
;
of the medical authorities,
him
when
only
tlicn
in court, convinces
the lawyer's research
which he should have with
him
that he can expose the doc-
erroneous conclusions, not only to himself, but to a jury who will not readily comprehend the abstract theotor's
physiology upon which even the medical profes-
ries of
sion
itself is
On
divided.
some
the other hand,
careful
and judicious ques-
seeking to bring out separate facts and separate
tions,
points from the knowledge and experience of the expert,
which
own
tend to support the theory of the attorney's
will
side of the
case, are usually productive
of
good
In other words, the art of the cross-examiner should be directed to bring out such scientific facts from the knowledge of the expert as will help his own case, results.
and thus tend
to destroy the
weight of the opinion of the
expert given against him.
Another suggestion which should always be borne in mind is that no question should be put to an expert which
is
in
any way so broad as
to give the expert
opportunity to expatiate upon his afford
him an opportunity
reasons, in his
calling
him
own way,
as an expert
in
his
own
an
views, and thus
answer
for his opinions,
give his
to
which counsel
might not otherwise have
fully
brought out in his examination. It
was
in the trial of Dr.
murdering
Buchanan on the
charo-e of
his wife, that a single, ill-advised question put
upon cross-examination
to the physician
83
who had
attended
THE ART OF CROSS-EXAMINATION Mrs. Buchanan upon her death-bed, and as his opinion that her death
which enabled the
among
was due
who had given
it
to natural causes,
jury, after twenty-four
hours of dispute
themselves, finally to agree against the prisoner
on a verdict
of
murder
in the first degree, resulting in
Buchanan's execution.
The charge poisoned his himself,
against Dr. wife — a
Buchanan was
woman
and who had made a
that he had
considerably older than will in his favor
morphine and atropine, each drug being used
— with such
in
proportion as to effectually obliterate the group of symp-
toms attending death when resulting from the use
of either
drug alone.
At Buchanan's self in
trial
the extremely
the district attorney found him-
awkward
position of trying to per-
suade a jury to decide that Mrs. Buchanan's death was,
beyond
all
reasonable doubt, the result of an overdose of
morphine mixed with atropine administered by her husband, although a respectable physician,
her at her death-bed, had given
it
who had
attended
as his opinion that she
died from natural causes, and had himself
made
out a
death certificate in which he attributed her death to apoplexy. It
was only fair
to the prisoner that
he should be given
the benefit of the testimony of this physician. trict
The
Dis-
Attorney, therefore, called the doctor to the witness-
him concerning the symptoms he had observed during his treatment of Mrs. Buchanan just stand and questioned
84
CROSS-EXAMINATION OF EXPERTS prior to her death,
and developed the
had made out a death
certificate in
that in his opinion apoplexy
The
fact that the doctor
which he had
was the
certified
sole cause of death.
doctor was then turned over to the lawyers for the
defence for cross-examination.
One edge
of
of the prisoner's counsel,
medicine than of the art
who had
far
more knowl-
of cross-examination,
was
assigned the important duty of cross-examining this wit-
After badgering the doctor for an hour or so with
ness.
technical medical questions
less
remote from the
and tending to show the erudi-
subject under discussion, tion of the lawyer
more or
who was conducting
rather than to throw light
the examination
upon the inquiry uppermost
in
the minds of the jury, the cross-examiner finally repro-
duced the death callino:
made
and put
certificate
it
in evidence,
the doctor's attention to the statement therein
— that
death
was the
result
of
Now,
doctor,
you have told us what
toms were, you have
told us
the cause of her death
transpired lead this
you
since to
paper ?
The
;
I
— —
apoplexy
claimed, while flourishing the paper in the air: "
and
this lady's
ex-
symp-
what you then believed was
now
ask you, has anything
Mrs. Buchanan's death which would
change your opinion as
it
is
expressed in
"
doctor settled back in his chair and slowly
re-
peated the question asked: "Has — anything — spired — since — Mrs. Buchanan's — death — which — would — lead — me — — change — my — opinion —
tran-
as
to
85
"
THE ART OF CROSS-EXAMINATION it
— — expressed — — in
is
— paper
this
turned to the judge and inquired
if
The
? "
in
witness
answer to such
a question he would be allowed to speak of matters
come to his knowledge since he wrote the cerThe judge replied " The question is a broad tificate. Counsel asks you if you know of miy reaso7t why one. that had
:
you should change your former opinion ?
The
witness leaned forward to the stenographer and
requested him to read the question over again.
The
was done. this
This
attention of everybody in court was
by
time focussed upon the witness, intent upon his
answer.
It
seemed
to appear to the jury as
this
if
must
be the turning point of the case.
The
doctor having heard the question read a second
time, paused for a self in his chair,
moment, and then straightening him-
turned to the cross-examiner and
said,
wish to ask you a question. Has the report of the
" I
chemist telling of
discovery of atropine and mor-
liis
phine in the contents offered
in
of
evidence yet
this
woman's stomach been
The
} "
court answered,
" It
has not." "
One more
question," said the doctor, "
of the pathologist yet
court replied, "
"
been received
in
Has
the report
evidence
.?
"
The
No."
Thenl' said the doctor, rising in his chair,
answer your question
" I
can
truthfully, that as yet in the ab-
sence of the pathological report and in the absence of the chemical report
I
know
of
86
no legal evidence which
CROSS-EXAMINATION OF EXPERTS would cause death It
me
opinion exj)res.sed
to alter the
in
my
certificate." is
impossible to exaggerate the impression
upon the court and jury by
answers.
tliese
made
AW
the
advantage that the prisoner might have derived from the original death certificate was entirely swept away.
The
When
trial
lasted for fully
two weeks
after this episode.
the jury retired to their consultation
room
at the
of the trial, they
found they were utterly unable to
agree upon a verdict.
They argued among themselves
end
for twenty-four hours without
At
coming
to
any conclusion.
the expiration of this time the jury returned to the
court room and asked to have the testimony of this doctor reread to
The
them by the stenographer.
stenog-
rapher, as he read from his notes, reproduced the entire
scene which had been enacted two weeks before.
The
jury retired a second time and immediately agreed upon their verdict of death.
The
cross-examinations of the medical witnesses in the
Buchanan case conducted by
Wonder" were
this
same
"
Medico-legal
the subject of very extended newspaper
praise at the time, one daily paper devoting the entire
front page of
its
Sunday
edition to his portrait.
How expert witnesses have in the past,
been discredited with juries
should serve as practical guides for the future.
The whole effect of the testimony of an expert witness may sometimes effectually be destroyed by putting the witness to
some unexpected and offhand 87
test at the trial,
THE ART OF CROSS-EXAMINATION as to his experience, his ability
and discrimination as an
meet the
expert, so that in case of his failure to
can be held up to ridicule before the
jury,
test
he
and thus the
laughter at his expense will cause the jury to forget any-
thing of weight that he has said against you. I
have always found
method
the most effective
to cross-examine a certain type of professional
medical witnesses
A
to be
this
now
so frequently seen in our courts.
striking instance of the efficacy of this style of cross-
examination was experienced by the writer in a damage suit against the city of
Court sometime
A
New
York, tried in the Supreme
in 1887.
very prominent physician, president of one of our
leading clubs at the time, but
now
dead, had advised a
woman who had been his housekeeper for thirty years, and who had broken her ankle in consequence of stepping into an unprotected hole in the street pavement, to bring suit against the city to recover ^40,000 damages.
There was very action
:
little
defence to the principal cause of
the hole in the street
was
there,
and the
plaintiff
had stepped into it but her right to recover substantial damages was vigorously contested. Her principal, in fact her only medical witness was ;
her employer, the famous physician.
The doctor
testi-
fied to the plaintiff's sufferings, described the fracture of
her ankle, explained
how he had
himself set the broken
bones and attended the patient, but affirmed that efforts
were
of
no
avail as
all
his
he could bring about nothing
CROSS-EXAMINATION OF EXPERTS but a most
iin[)(jrfc'ct
housekeeper, a
union of the bones, and that his
and estimable lady,
most respectable
would be lame
for
His manner on the witness-
life.
stand was exceedingly dignified and frank, and evidently
impressed the jury.
was certain
A
large verdict
of
fully
$15,000
to be the result unless this witness's hold
upon the jury could be broken on There was no reason known
his cross-examination.
to counsel
why
this
ankle
should not have healed promptly, as such fractures usually
the
how to make the jury realize the fact was The intimate personal acquaintance bequestion.
do; but
tween the cross-examiner and the witness was another embarrassment.
The
cross-examination
began by showing that the
witness, although a graduate of
Harvard, had not im-
mediately entered a medical school, but on the contrary
had started
manager
in business in
several
of
begun the study
of
Wall
business
Street,
had
enterprises,
later
been
and had not
medicine until he was forty years
The examination then continued in the most amiable manner possible, each question being asked in old.
a tone almost of apology. "
Counsel.
We
all
know, doctor, that you have a large
and lucrative family practice as a general practitioner; but
is it
not a fact that in this great
are of such ally
common
city,
where accidents
occurrence, surgical cases are usu-
taken to the hospitals and cared for by experienced
surgeons
" t
89
"
"
THE ART OF CROSS-EXAMINATION "
Doctor.
Yes, "
Counsel.
that
sir,
You do
is so."
not even claim to be an experienced
"
surgeon
?
"
Doctor.
Oh, no,
sir.
have the experience
I
of any-
general practitioner." "
Counsel.
What would
be the surgical name for the
particular form of fracture that this lady suffered "
Doctor.
?
What
is
known
That
is
a well-recognized form of fracture,
as a
'
Potts fracture of the
ankle.' "
Counsel. is it
"
not
?
"
Doctor.
Oh,
yes."
Cozinsel (chancing
when you had
jury about
your regular practice, the
the
names
should not
my
of
Counsel (encouraged).
and secrets
of patients
for the date, doctor " I
Doctor.
Counsel
;
—
you, sir
;
(still
(still
but
" }
at liberty to
feel
patients."
" I
am
far
from
not asking for names I
it.
am
only asking
couldn't possibly give you the date, feeling
(hesitating).
Counsel
one
but on your oath."
year preceding this one
Doctor
telling the
a fracture of this nature in
last before this
" I
Doctor (dodging). disclose
Would you mind
"
it).
I
his way).
Was
it
sir."
within the
" t
" I
would not
more encouraged).
am
"
obliged to
like to say, sir."
" I
demand
am
sorry to press
a positive answer
from you whether or not you had had a similar case of 'Potts fracture of the ankle' the year preceding this one?"
90
CROSS-EXAMINATION OK EXPP:RTS "
Doctor.
Well,
"
Doctor.
cannot remember that
I
cannot say."
I
"
Cou7ise/ {ioYcing the issue). five years
preceding the
Doctor.
am
" I
Did you have one within case
plaintiff's
" ?
unable to say positively."
(appreciating the danger of pressing tne in-
Co2insel.
quiry further, but as a
last resort). "
you ever had a case
'
of
shall ask
I
Will you swear that
Potts fracture
practice before this one
you have,
had."
I
Did yuu have one two years before?"
"
Counsel.
IK),
.?
tell
I
you
you day and
'
within your
frankly,
own
you say
if
date, time, place,
and
circumstance."
embarrassing one.
I
Your question
is
an
should want time to search
my
Doctor (much embarrassed).
"
memory." " I
Counsel.
am
memory
only asking you for your best
as a gentleman, and under oath."
Doctor.
" If
now remember tion,
you put of
it
that way,
I
say
will
cannot
I
any case previous to the one
in ques-
excepting as a student in the hospitals." "
Counsel
But does
it
not
require
great deal of
a
practice and experience to attend successfully so serious
a fracture as that involving the ankle joint ? Doctor.
"
Counsel.
admit that
Oh, "
'
"
yes."
Well, doctor, speaking frankly, won't you
Potts fractures
in our hospitals
'
are daily being attended to
by experienced men, and the use
ankle fully restored in a few months' time 91
" 1
of the
"
"
THE ART OF CROSS-EXAMINATION That may
"
Doctor.
age of the patient
much depends upon
but
be,
and again,
;
seems to make the bones
in
some
cases,
the
nothing
unite."
Counsel i^iooy^Xi^ under the table and taking up the
two lower bones "
the witness). tell
the leg attached and approaching
of
Will you please take these, doctor, and
the jury whether in
they constituted the bones
life
woman's leg or a man's leg ?
of a
"
" It is difficult to tell, sir."
Doctor.
"
Counsel.
What,
you
can't
woman's leg from a man's, doctor "
Doctor.
Oh,
yes,
the
tell
a
of
?
should say
I
skeleton
was a woman's
it
leg."
Counsel (smiling and looking pleased). opinion, doctor, this was a
woman's
woman s
"
leg.?"
So
in
[It
your
was a
leg.]
Doctor (observing counsel's face and thinking he had
made
leg, of course.
By seats
"
a mistake).
Oh,
I
beg your pardon,
had not examined
I
were
this time the jury
it
a man's
carefully."
all sitting
and evinced much amusement
it is
upright in their
at the doctor's in-
creasing embarrassment.
Counsel
(still
to tell the jury
Doctor for "
if
(quietly,
it
is
Would you be good enough
the right leg or the
but hesitatingly).
[It
is
left
leg
.?
very difficult
inexperienced to distinguish right from left]
the
This
"
smiling).
is
the right leg."
Cotaisel (astonished).
"
What do you 92
say, doctor
" ?
CROSS-EXAMINATION OF EXPERTS Doctor (much confused).
"
Pardon mc,
it
the left
is
leg."
Counsel. Is
it
"
Were you
not right the
not in fact the right leg?
Doctor.
" I
don't think so
;
first
time, doctor.
"
no,
it is
the left leg."
Counsel (again stooping and bringing from under the table the bones of the foot attached together,
ing
it
to the doctor).
"
Please put the skeleton of the
foot into the ankle joint of the bones in
your hand, and then
and hand-
you already have
me whether
tell
it
is
the right or
left leg."
Doctor (confidently).
"
Yes,
it
is
the
left leg,
as
I
said
before."
Counsel (uproariously).
"
But, doctor, don't
you see
you have inserted the foot into the knee joint?
Is that
way it is in life } The doctor, amid
the
"
roars of laughter
which the entire court room joined, the
bones and
Counsel waited then
said
sat
jury, in
hastily readjusted
blushing to the roots of his hair.
until
quietly,
from the
the laughter had
" I
think
I
will
subsided, and
not trouble
you
further, doctor."
This incident
is
not the least bit exaggerated
contrary, the impression
made by
of the
on the is diffi-
on paper.
cult to present adequately
sides proceeded to
;
the occurrence
sum up
Counsel on both
the case, and
defence no allusion whatsoever was
incident just described.
The 93
upon the part
made
to the
jury appreciated the fact.
THE ART OF CROSS-EXAMINATION and returned a verdict
Next
for the plaintiff for ^240.
day the learned doctor wrote a four-page letter of thanks and appreciation that the
results of his "stage fright"
had
not been spread before the jury in the closing speech.
An
estimate of the susceptibility of occasional juries
drawn from some country panels
to
have their attention
diverted from the facts in a case by their fondness for
entertainment has at times induced attorneys to try the
experiment of framing their questions on cross-examination of medical experts so that the jury will be
by the questions themselves and
will
amused
overlook the damag-
ing testimony given by a serious-minded and learned
opposing medical witness.
An
illustration of this
case brought by a
New York
was afforded not long ago by a
woman
against the Trustees of the
and Brooklyn Bridge.
alighting from
a bridge
car,
The
plaintiff,
stepped into the space
between the car and the bridge platform and her armpits.
She claimed
to her ribs, lungs,
and
that she
cialist
on nerve
fied that there
had sustained
intercostal neuritis.
injuries, called
was nothing the matter with the
thorough examination, had listened such
failed to find
to
A
spe-
testi-
plaintiff,
and had made a
at her chest to detect
as are generally left after pleurisy,
any lesions or
up
injuries
by the defence, had
as he had tested her with the stethoscope
" rales "
fell
and that she was suffering
chest,
from resultant pleurisy and
while
and had
injuries to the pleural nerves
whatsoever. 94
CROSS-EXAMINATION OF ?:XPERTS attorney for the plaintiff, Mirabeau L.
The
Towns
of
Brooklyn, had evidently correctly "sized up" the particular jury
who were
to decide his case,
to cross-examine the doctor in rhyme^
and proceeded
which the learned
physician, absorbed in his task of defending himself, did
not notice until the laughter of the jury advised
him
that
he was being made ridiculous. Mr. Q.
Towns "
arose and said
Now,
:
— You
doctor, please listen to me.
say for
the sake of a modest fee you examined the plaintiff most "
carefully
?
my
A.
" I tried to
Q.
"
But you saw no more than you wanted
A.
"
What do you mean,
Q.
"
Well, you laid your head upon her chest
A.
" I did."
do
duty, sir."
?
"
That was a most delightful
A.
"
Well,
there
is
Q.
"
are as
plain as
A.
And
as mine,
mangled guns
"I
" .?
ascertaining
of
me
pleura's rale
if
if
if
your ears
and
of medi-
you'd hear as
rattle
" ?
to say this,
and no more,
— that
it
would
a person was suffering from a lacerated
not to detect
Now, you did
A. "I
to say, doctor, that
and with your knowledge
in battle
mean
pleura, for "
common way
the
you mean
be impossible,
Q.
test
" ?
anything abnormal in the lungs."
good
cine, a
is
" ?
"
sir
Q.
it
to see
this
it
by the
test
I
most carefully t
did."
95
made." "
" " "
THE ART OF CROSS-EXAMINATION Q.
"
For you had
A.
"
Of course
I
was paid
that had nothing to do with
stand that "
Q.
wanted "
A.
"
Q.
was
I
my I
it.
to see
that
?
examination, but
want you
to under-
conscientiously."
you saw no more than you
" ?
saw nothing."
And
each of her
ribs,
good and sound
as
for
made my examination most
Can you swear
1
your expert's fee
to earn
on your oath as a
as a daddy's dollar
scholar,
" ?
(Outburst of laughter, and the judge used his gavel.
appealed to the court for protection, but Mr.
Dr.
Towns continued.) Q. "You say you think she was A. Q.
" I
"
malingering.f*
do."
So when the poor creature ventured
to
cope
with you and your science and your stethoscope, for her you'll acknowledge there was
A.
" I
tain that
have come here to it
tell
would be very hard
little
hope
?
the truth, and for a
I
main-
young woman
of her type to deceive me."
(Renewed laughter and the judge's gavel fell with Counsel was admonished, but he congreater force. tinued.)
Q.
"
She might scream
in
anguish
till
the end of her ''
breath, your opinion once
formed you'd hold
until death
.^^
Not answered. Q.
"
Though
she
fell
through a hole clear up to
her arm, and that's quite a
fall, it
96
did her no
harm
;
in
CROSS-EXAMINATION OF P:XPERTS she'd fallen from
fact, if
Mount Chimborazo,
unhurt and contuiue to say
she's
so.
Such
you'd say a
such a height, one might observe, might break but ne'er injure a nerve
ribs,
"
The Doctor.
from
fall
all
her
" ?
Your honor,
don't wish to be
I
and
ridiculous by this gentleman,
I
made
protest against his
questions, they arc unfair."
Before the court could "
Q.
And you hope
Vitus
St.
neuritis
to
:
—
be seized with the dance of
on
you found
if
Mr. Tov^ns continued
rule,
the
plaintiff
intercostal
" }
The Doctor.
"
Your Honor,
Here the judge
interfered
I
refuse to answer."
and admonished counsel
that he had pursued this line of inquiry long enough.
That Mr. Towns was
correct in his estimate of this
absurd panel of jurors was shown by a very large verdict in favor of his client,
one
and by a request signed by each
of the jurors personally that
them a copy
counsel would send
of his cross-examination of the defendant's
doctor.
As
distinguished from the lengthy, though doubtless
scientific,
cross-examination of experts in handwriting
with which the profession has become familiar in recent famous
trials that
following incident cannot
have occurred in fail
suQ^aestions laid
examination of
specialists.
It
down
as to the cross-
would almost be tiiought
improbable in a romance, yet every word of 97
this city, the
to serve as a forcible illus-
tration of the
G
many
it is
true.
THE ART OF CROSS-EXAMINATION In the
William
of
trial
Ellison
Henriques,
for
felonious
who had brought Mr.
Ellison's
Noeme,
to a sud-
attentions to his daughter, Mrs. Lila
den close by forbidding him of
some
Noeme
letters,
to
upon
assault
his house, the authenticity
alleged to have been written by Mrs.
The
Mr. Ellison, was brought in question.
lady herself had
strenuously denied that the alleged
compromising documents had ever been written by
her.
late Charles Brooke, Esq.,
had
Counsel for Ellison, the
evidently framed his whole cross-examination of Mrs.
Noeme upon
these letters, and
made
a final effort to
introduce them in evidence by calling Professor Ames,
He
the well-known expert in handwriting.
having closely studied the junction with
all
and gave
written by the
it
them
jury
to the
when
of
the
as his opinion that they
same hand.
offered the letters in evidence,
con-
question, in
an admittedly genuine specimen
lady's handwriting,
were
letter in
deposed to
Mr. Brooke then
and was about
to read
the assistant district attorney
asked permission to put a few questions. District Attorney.
"
Mr. Ames, as
you were given only one sample
I
understood you,
of the lady's
genuine
handwriting, and you base your opinion upon that single exhibit, is that correct
Witness.
"
Yes,
sir,
" ?
there
was only one
letter
but that was quite a long one, and afforded
given me,
me
great
opportunity for comparison." District Attorjiey.
"
Would 98
it
not assist you
if
you
"
CROSS-EXAMINATION OF KXPKRIS were given a number of her a comparison
Witness.
letters
make
with which to
?
"Oh,
yes, the
ine handwriting, the
more samples
had
1
of
genu-
more valuable my conclusion would
become." District Attorney (taking from
papers a it
letter,
that
is
in the
a bundle of
down the signature and handing Would you mind taking this one
folding "
to the witness).
and comparing
among
it
with the others, and then
tell
us
if
same handwriting?"
Witness (examining paper closely for a few minutes). *'
Yes,
sir, I
should say that was the same handwriting."
District Attorney. individual
may
" Is it
not a
Witness.
the same
upon
different
write a variety of hands
occasions and with different pens "
fact, sir, that
Oh,
" ?
they might vary somewhat."
yes, sir;
District Attorney (taking a second letter from his also folding over the signature ness).
pare
it
"
Won't you kindly take
and handing
Witness (examining the variety of the
and com-
" ?
letter).
"
is
a
be willing to give
it
Yes,
sir,
that
same penmanship." "
District Attor7iey. as your opinion that Wit7iess.
to the wit-
this letter, also,
with the others you have
files,
" I
it
Would you
was written by the same person
" ,?
certainly would, sir."
Distinct Attorney (taking a third letter from his
files,
again folding over the signature, and handing to the witness).
"
Be good enough
to take just
99
one more sample
"
THE ART OF CROSS-EXAMINATION
— is
I
want
don't
to
— and
weary you
say
if
one
this last
also in the lady's handwriting."
examine
Witjiess (appearing to
witness-chair and going to the "
inspection).
to a fact, only
Yes,
it
closely, leaving the
window
you understand
sir,
I
to complete his
am
not swearing
an opinion."
District Attorney (good-naturedly). "Of course
stand
but
;
is
" I
all
first letter I
signature
" }
folded over the signature to
I
turn tl;ie
handed you, and read aloud to the jury the
?
Witness (unfolding phantly).
same handwriting
it is
"
the edge where
in the
my honest opinion." Now sir, won't you please
say yes,
District Attorney.
down
under-
your honest opinion as an expert, that
it
these three letters are
Witness.
I
"
the
and
letter
reading trium-
Lila Noemer "
District Attorney.
Please unfold the second letter
and read the signature." Witness (reading).
"
William Henriquesr
District Attorney.
"
Now
the third, please."
Witness (hesitating and reading with ment).
The
"
Frank
alleged
Ellison
/ "
much
embarrass-
^
compromising
letters
were never read to
the jury. ^
As
a matter of
fact,
father
and daughter wrote very much
surprising similarity to Mr. Ellison.
It
was
this
use of the three letters in the cross-examination.
lOO
alike,
and with
circumstance that led to the
CHAPTER
VI
THE SEQUENCE OF CROSS-EXAMINATION
CHAPTER
VI
THE SEQUENCE OF CROSS-EXAMINATION
Much
depends upon the sequence
in
which one con-
You
ducts the cross-examination of a dishonest witness.
should never hazard the important question until you laid the foundation for
have
confronted with the
nor explain
mentary evidence, absolutely
flat
in
often sees the
in the
form of
way
in
when
that,
most damaging docu-
letters or affidavits, fall
which they are handled.
your possession a
in
such a way
as exponents of falsehood, merely because
of the unskilful
have
in
the witness can neither deny
fact,
One
it.
it
letter written
If
you
by the witness,
which he takes an opposite position on some part
the case to the one he has just sworn
mon
error of
tion,
and then reading
showing the witness the it
have you to say to that letter the witness will
him with
to ?
to,
avoid the com-
letter for identifica-
What
the inquiry, "
During the reading
"
of
of his
be collecting his thoughts and get-
ting ready his explanations in anticipation of the question that will
be
The
is
to follow,
and the
effect of the
damaging
letter
lost.
correct
method
of
using such a letter
is
to lead
the witness quietly into repeating the statements he has lO.^
THE ART OF CROSS-EXAMINATION made
" I
dicts.
I
want
statement. " Is
his letter contra-
have you down as saying so and so
please repeat
and
and which
in his direct testimony,
am
I
it ?
to be accurate."
Then
that correct
write
it
notes to the jury,
any doubt about
you have any explanation or qualification you owe
it
fact
;
there
make
to us, in justice, to
The
subject."
is
it
nothing to qualify
Then
;
let
to
make,
Let
"
me
Do you
read you from your
— and afterward — You
will
"
make your
when you have
handwriting,
letter, in
It
it.
is
which you
point, to
drop
ting
fast
the witness wriggle out of
in his
own
is
who
is
is
:
to
But
it.
when not of his get-
the time to press your advantage.
—
Which statement is true ? letter when you gave your "
when
orally con-
no danger
Put his self-contradictions to him in as
you can invent
" ?
handwriting, you then have
on the hook, and there
away; now
say,"
and go
it
tradicting a statement he has previously made,
him
sir.?
to say to that
usually expedient,
a witness under oath,
under oath, but
upon
letter
point in such fashion that the jury
you have once made your else, lest
leave the
I
your whole manner
Now, what have you
will not readily forget
something
own
think
the jury rather like
own
recognize your
I
if
has stated the
toward him suddenly change, and spring the him.
For
it ?
before
He
witness has none.
his straightforwardness.
you
The witness will repeat his down and read it off to him.
Is there
?
my
apt to read
will
;
"
"
many forms
Had you
forgotten this
testimony to-day
104
as
?
"
"
Did
I
you
HK SEQUENCE OF CROSS-EXAMINATION "Were you
your counsel about it?"
tell
to deceive
"What was your
him?"
mislead the jury?
"
intending
object in trying to
'
who
often
saw
Sir Charles Russell in action, "get in a bit of the
nail,
"Some men,"
London
said a
and there they leave
hanging loosely about
it
judge or some one else pulls got in a it
bit of the nail,
No man
home.
Sometimes
is
it
barrister
it
until the
But when Russell
out.
he never stopped until he drove
ever pulled that nail out again." advisable to deal the witness a sting-
ing blow with your
few questions;
first
this, of course,
assumes that you have the material with which
The advantage very start
is
your best point forward
of putting
First, the jury
twofold.
to his direct testimony
when you
they are keen for your " in
one
the
first
bout,
it
came
the jury than
if it
begun
to lag,
and when
shot.
The
of scoring
tions
is
in his
questions.
makes
later it
far
If
makes him
their
you "land
as a
chance
more important,
afraid of
first
group
you and
effect
of ques-
less hostile
subsequent answers, not knowing when you
In Chapter
XI
{infra)
is
own
more impression on
might only appear
on the witness with the it
at the
on when their attention has
second, and perhaps
that
it.
rise to cross-examine,
him again and give him another
trip
^
first
do
have been listening
and have been forming
impressions of him, and
to
fall.
This
will
will often
given in detail the cross-examination of the
witness Pigott by Sir Charles Russell, which affords a most striking example
of the most effective use that can be
made 105
of an incriminating letter.
THE ART OF CROSS-EXAMINATION enable you to obtain from him truthful answers on sub-
about which you are not prepared to contradict
jects
him.
have seen the most determined witness completely
I
mind
lose his presence of
blows given at the very
and become
after
two or three well-directed
start of his cross-examination,
as docile in the examiner's hands as
were his own witness.
This
is
your side
is
one
it
;
This taming of a hostile
of the controversy.
and forcing him
of the
to tell the truth against his will,
triumphs of the cross-examiner's
speech to the
Choate once said
jury,
brand him a vagabond and a
" I
him
him the oppor-
down or retint it, as it were possibly switch him over until he finds himself supporting
tunity to tone
witness,
he
the time to lead the wit-
ness back to his original story and give
even to
if
to
curse,
and,
of
In a
such a witness,
villain
behold, he hath
art.
they brought
;
blessed
us alto-
gether."
Some
witnesses, under this style of examination, lose
their tempers completely, his
own and
and
if
the examiner only keeps
puts his questions rapidly enough, he will
be sure to lead the witness into such a web
of contradic-
tions as entirely to discredit him with any fair-minded jury.
A
witness,
speaks the truth. deceive.
in
anger, often
forgets himself and
His passion benumbs his power
to
Still another sort of witness displays his tem-
per on such occasions by becoming sullen
;
he begins by
giving evasive answers, and ends by refusing to answer 1
06
rHK SEQUENCE OF CROSS-EXAMINATION at
He
all.
might as
go a
well
and admit
farther
little
his perjury at once, so far as the effect
on the jury
is
concerned.
When, however, you have
not the material
hand
at
with which to frighten the witness into correcting his perjured narrative, and yet you have concluded that a
cross-examination
necessary,
is
never
waste time
putting questions which will enable him original testimony in the sequence in
You can accomplish nothing
it.
abandon the
by
repeat his
to
which he
first
gave
with him unless you
train of ideas he followed in giving his
main
Select the weakest points of his testimony and
stoiy.
the attendant circumstances he would be least likely to
prepare lest
Do
for.
not ask your questions in logical order,
he invent conveniently as he goes along
him about
in his story
answers on
all
and pin him down
main
narrative.
answers, put your questions
many unimportant ones in the
same
but dodge to
precise
the accidental circumstances indirectly
associated with his his
;
voice.
If
to
he
As he begins to more
invent
rapidly, asking
one important one, and is
not
tellino:
all
the truth, and
answering from memory and associated ideas rather than
from imagination, he
never be able to invent his
will
answers as quickly as you can frame your questions, and at the
same time
ent answer If
correctl}'-
estimate the bearing his pres-
may have upon
you have the
those that have preceded
it.
method
of
maze
of
requisite skill to pursue this
questioning, you will be sure to land 107
him
in a
THE ART OF CROSS-EXAMINATION self-contradictions
from which he
never be able to
will
extricate himself.
Some
though unwilling
witnesses,
selves, are yet determined not to
they can help relationship to testify. erally a
owing
to
the whole truth
some personal
interest in, or
you are instructed that such a witness (gen-
woman) if
is
in possession of the fact
she chooses,
it is
you put the direct question
probably receive a
"
don't
you want and
your duty to draw
This requires much patience
of her.
if
the party on whose behalf they are called
to, If
can help you
If
it,
perjure them-
to
tell
and ingenuity.
to her at once, "
remember
out
it
you
answer, or she
will
may
even indulge her conscience in a mental reservation and
You must
pretend a willingness but inability to answer.
approach the subject by slow stages.
Begin with matters
remotely connected with the important fact you are aiming
at.
She
perhaps realizing on
will relate these, not
the spur of the
moment
Having admitted
that
exactly where they will lead her.
much, you can lead her nearer
and nearer by successive approaches to the matter, until
you have her
must either
tell
or else openly witness-chair, friends, " in
I
such a dilemma that she
you what she had intended
commit
perjury.
When
to conceal
she leaves the
you can almost hear her whisper
never intended to
such a position
was
in
gist of the
I
tell
it,
simply had to
but that tell
man
to her
put
me
or admit that
I
lying."
In
all
your cross-examinations never lose control 1
08
of
IHK SEQUENCE OK CROSS-EXAMINATION the witness; confine his answers to the exact questions
you
He
ask.
forced to answer directly, tion or an explanation
benefit
it
which
all, let
alert for
2,
me
lastly,
most
repeat the injunction to be ever
Nothing can be
to stop.
to close
ness in a serious contradiction this,
And
to you.
your examination with a
So many lawyers succeed
triumph.
if
rob his answer of the
will
good place
more important than
or
direct answers,
attempt to add a qualifica-
will
might otherwise be
important of
on the
dodge
to
try
will
;
catching a wit-
in
but, not
go on asking questions, and taper
satisfied
off their
with
exami-
nation until the effect upon the jury of their former
advantage
one
is
of the
lost altogether.
maxims
Stop with a victory
of cross-examination.
done nothing more than on the part
"
you have gone a long way
toward discrediting him with your apt to regard a witness as a whole don't.
If
jury.
—
in their
that he after
minds left
true. is
Juiymen
are
either they believe
they distrust him, they are likely
though much
to disregard his testimony altogether,
may have been
you have
expose an attempt to deceive
to
of the witness,
him or they
If
" is
The
fact that
of
it
remains uppermost
that he attempted to deceive them, or
the witness-stand with a
lie
upon
his lips, or
he had displayed his ignorance to such an extent
that the entire audience laughed his evidence
is
'at
him.
Thereafter
dismissed from the case so far as they
are concerned.
Erskine once wasted a whole day 109
in trying to
expose
THE ART OF CROSS-EXAMINATION to a jury the lack of
a physician
who was
mental balance of a witness, until
assisting
him suggested
that Erskine
ask the witness whether he did not believe himself to be Jesus Christ.
This question was put by Erskine very
cautiously and with studied humility, accompanied by a
request for forgiveness for the indecency of the question.
The
witness,
who was
at
once taken unawares, amid
breathless silence and with great solemnity exclaimed, " I
am
the Christ ^
"
— which soon ended the
" Curiosities of
Law and Lawyers."
no
case.^
CHAPTER
VII
SILENT CROSS-EXAMINATION
CHAPTER
VII
SILENT CROSS-EXAMINATION
Nothing could be more absurd
or a greater waste of
who has
time than to cross-examine a witness
And
no material fact against you. seem, the courts are only young ones
full of
yet,
examine every witness who
to feel
is
it
sworn.
that their clients or the jury will suspect
or inability to conduct a
strange as
young lawyers
— who seem
trial.
testified to
— and
their
alas
and
a
not
They seem afraid them of ignorance
not infrequently hap-
It
in
the
new theories of the case for the other witness who might have been disposed of as
development ;
!
duty to cross-
pens that such unnecessary examinations result
side
may
it
of
harmless by mere silence, develops
into
a formidable
obstacle in the case.
The
infinite variety of types of witnesses
in court
makes
applicable to
it
all
with a witness
impossible to lay
cases.
who
ever examined before nation of the
art.
down any
One seldom comes
in all respects like
is ;
The
one meets with
it is
set rules
in contact
any one he has
this that constitutes the fasci-
particular
method you use
in
any
given case depends upon the degree of importance you H
113
THE ART OF CROSS-EXAMINATION attach to the testimony given by the witness, even
may be many witnesses who It
is false.
is
that
if
it
you have on your own side so
will contradict the testimony, that it
not worth while to hazard the risks you will necessarily
run by undertaking an elaborate cross-examination.
such cases by far the better course
and ask no questions
at
is
to
keep your seat
Much depends
all.
In
also, as will
be readily appreciated, upon the age and sex of the witness.
lawyer
In is
fact, it
may be
said that the truly great trial
he who, while knowing perfectly well the
when they should witness happens to be a woman, and
tablished rules of his
be broken.
the
If
art,
appreciates
at the close of her testimony-in-chief will
it
seems that she
be more than a match for the cross-examiner,
works
like a
charm with the jury
what may be styled the suddenly, as
if
es-
to practise
often
it
upon her Rise
silent cross-examination.
you intended
to cross-examine.
The
wit-
ness will turn a determined face toward you, preparatory to demolishing
signal for
you
you with her
first
to hesitate a
moment.
good-naturedly and as
would be worth while It
if
you were
to question
answer.
in
This
is
the
Look her over doubt whether
her — and
sit
it
down.
can be done by a good actor in such a manner as to
be equivalent to saying to the jury, "What's the she
is
use."^
only a woman."
John Philpot Curran, known
as the
most popular ad-
vocate of his time, and second only to Erskine as a jury lawyer, once indulged himself in this 114
silent
mode
of
SILENT CROSS-EXAMINATION cross-examination, but
made
the mistake of speaking his
thoughts aloud before he sat down. asking
you questions,
face."
"Do
smile.
" I
you,
never
see
the
replied
the
for
sir?"
knew
"
I
before
that
There
no use
is
villain
witness
my
yrnir
in
with
a
was a
face
looking-glass."
Since the sole object of cross-examination the force of the adverse testimony,
it
to break
is
must be remem-
bered that a futile attempt only strengthens the witness with the jury. fore, that
It
cannot be too often repeated, there-
saying nothing will frequently accomplish more
than hours of questioning.
It
experience alone that
is
can teach us which method to adopt.
An
amusing instance
of this occurred in the trial of
Alphonse Stephani, indicted
for the
Reynolds, a prominent lawyer in the
of Clinton G.
New York, who
management and settlement
The
murder
had had
of his father's estate.
defence was insanity; but the prisoner, though evi-
dently suffering from the early stages of some serious brain disorder, was
still
tion of the term.
He was
not insane in the legal accepta-
convicted of murder
second degree and sentenced to a Stephani was defended by the Esq.,
who was
certainly
one
of the
of his time in criminal cases.
lawyer, but the in
the
life
imprisonment.
late
William F. Howe,
most successful lawyers
Howe was
not a
Qrreat
kind of witnesses ordinarily met with
such cases he usually handled with a
little
in
short of positive genius.
"5
skill
that
was
"
THE ART OF CROSS-EXAMINATION Dr. Allan McLaiie Hamilton, the eminent alienist, had a special study of Stephani's case, had visited
made
weeks
for
for a
Tombs
at the
Prison,
and had prepared himself
most exhaustive exposition
mental condition.
of his
Dr. Hamilton had been retained by Mr. to
him
Howe, and was
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
them the rectly
of
all
forms of insanity, nor develop before
doctor's peculiar opportunities for judging cor-
the
prisoner's
present
The
condition.
wily
advocate evidently looked upon District Attorney De-
Lancey Nicoll and
who were opposed to youngsters, who would
his associates,
him, as a lot of inexperienced
cross-examine at great length and allow the witness to
make every answer by the that
it
state's
tell
with double effect when elicited
attorney.
It
has always been supposed
was a preconceived plan
learned doctor and the advocate. with,
of
action between the
In accordance there-
tented himself with this single inquiry "
:
—
con-
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 Mr. Howe. "
Howe
and upon the examination-in-chief, Mr.
Insane," said Dr. Hamilton. ii6
.f*
"
continued
!
SILENT CROSS EXAMINATION
There was a hurried con-
of his characteristic gestures.
sultation
Howe, with one
cross-examine," thundered
You may
*'
between Mr. Nicoll and his associates. have no questions," remarked Mr. Nicoll,
"
We
"
What
!
"
quietly.
exclaimed Howe,
"
not ask the famous Dr.
Well,
/
will,"
Hamilton a question
?
witness began to ask
him how
made
symptoms,
of the prisoner's
to the
had
close a study he etc.
Van Brunt
objection. Chief Justice
and turning
when, upon our
;
directed the witness
was concluded,
to leave the witness-box, as his testimony
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 the
trial for
murder
of a
possessing appearance,
her husband. life,
and
of
somewhat
who was charged with
They were people
in a
pre-
poisoning
humble
class of
was suggested that she had committed the obtain possession of money from a burial fund,
and
act to
"
young woman
of
it
also that she
with a young
was on terms
man
in
the
of
improper intimacy
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 the destruction of
rats.
used
carelessly for
Mr. Baron Parke charged the
jury not unfavorably to the prisoner, dwelling pointedly 117
"
;
THE ART OF CROSS-EXAMINATION 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 experi-
enced witness, had proved the presence of arsenic, and, as tor,
I
imagine, to the great disappointment of
who
desired a severe cross-examination,
He was
ask him a single question.
and near the judge, who,
after
sitting
my
at the small
on the bench
summed up and
he had
upon which Taylor
said that
amount if
did not
I
before the verdict was pronounced, remarked to
he was surprised
solici-
him
of arsenic
that
found
he had been asked the
question, he should have proved that
it
under
indicated,
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 in-
formation, and
I
had
my
first
cross-examination.'
ii8
lesson in the art of
'
silent
CHAPTER
VIII
CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES
CHAPTER
VIII
CROSS-EXAMINATION TO CREDIT, AND
The
preceding chapters
have been devoted
legitimate uses of cross-examination of truth
and exposure
— the
weapon It
is
for
of fraud.
the
same end
good has almost equal
proposed
in
to the
development
Cross-examination as to credit has also use to accomplish
ABUSES
ITS
the present
its
legitimate
but this powerful
;
possibilities for evil.
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 per-
sons tion
who have nothing to do with the particular litigaand who have no opportunity for explanation nor
means
of redress,
form no legitimate part 121
of the cross-
THE ART OF CROSS-EXAMINATION examiner's
The lawyer who
art.
become the mouthpiece client ture.
may
inflict
allows
himself
to
of the spite or revenge of his
untold suffering and unwarranted tor-
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
make any
of his client, at his elbow, ready to
sacrifice to
humiliate his adversary, thereby debauches his profession
and surrenders verdict,
methods,
To
his self-respect, for
won from an is
impressionable
jury
by such
a poor recompense.
warrant an investigation into matters irrelevant to
the main
issues in the case,
the witness or prejudice
must
which an occasional
at least
him
and calculated
to disgrace
in the eyes of the jury, they
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
In
all
upon
his veracity.
we have gone upon the
that has preceded
sumption that the cross-examiner's further his client's cause by
all fair
art
pre-
would be used to
and legitimate means,
not by misrepresentation, insinuation, or by knowingly
putting a witness in a false light before a jury.
methods doubtless succeed
them acquires the of
being
"
at times, but
These
he who practises
reputation, with astounding rapidity,
smart," and finds himself discredited not only
with the court, but in some almost unaccountable way, 122
CROSS-EXAMINATION TO CREDIT
whom
with the very juries before
once get the reputation habitues of as a
tlie
walks of
is
gone
much
policy quite as
he appears.
being
"
unfair
the
Honesty
forever.
is
the best
with the advocate as in any of the
life.
Counsel may have
in his possession material for injuring
the witness, but the propriety of using
a serious question even perfectly legitimate.
witness
Let him
among
"
court-house, and his usefulness to clients
lawyer
trial
of
may
in cases
An
where
it
often
use
its
is
becomes otherwise
outrage to the feelings of a
be quickly resented by a jury, and sympathy
Then,
take the place of disgust.
too,
one has
to
reckon
with the judge, and the indignation of a strong judge not wisely provoked.
is
Nothing could be more unprofes-
sional 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 yield-
ing to a client's hatred or desire for revenge than the
outcome rest
of the
famous case
in
which Mrs. Edwin For-
was granted a divorce against her husband, the
tinguished tragedian,
dis-
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
(185
1)
Charles
counsel for Mrs. Forrest, called as his
husband
himself,
O'Connor,
first
witness the
and asked him concerning
his infideli-
123
THE ART OF CROSS-EXAMINATION ties
connection with a certain actress.
in
who appeared
Buren,
for
Edwin
question on the ground that
Forrest, objected to the
required his client
it
matters that might
to
testify
incriminate
question was not allowed, and the husband
elicited
Had
any tangible proof against the husband.
time,
it
would
of necessity
would have
Van Buren was about
end the
the wit-
left
rested the case for plaintiff without having
the wife's suit
Mr.
The
him.
a motion to take the case from the jury been this
to
After calling a few unimportant witnesses,
ness-stand.
O'Connor
John Van
case,
at
have been granted, and
failed.
to
made
It is
said that
make such
when
a motion and
Mr. Forrest directed him to proceed with
the testimony for the defence, and develop the nauseating
evidence
wife.
Van
for days
and
he had accumulated against his
Buren yielded
to his client's wishes,
weeks continued
to
call
and
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
husband, and when
upon the
wife,
Van Buren
otherwise, against the
finally closed his attack
O'Connor was enabled,
in
rebuttal, to
bring such an avalanche of convincing testimony against 124
CROSS-KXAMINA riON the
defendant
CRKIM
IT)
the jury promptly exonerated Mrs.
tliat
At the end
Forrest and granted her the divorce. first
day's trial the case could have been decided
of the
in favor
husband, had a simple motion to that effect been
of the
made; after
f
but, yielding to his client's hatred of his wife,
a hard-fought
trial
of thirty-three
Buren found both himself and defeated.
This error
commented on by
of
Mr,
and
Van
days, Mr.
his client ignominiously
Van
Buren's was widely
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
prestige in his practice in the city of
New
however, he never seemed to regain after his
little
York, which, fatal
blunder
in the Forrest divorce case.'
The abuse cussed
in
of cross-examination has
England
been widely
in recent years, partly in
of the cross-examination
of a Mrs.
band had died by poison.
He had
dis-
consequence
Bravo, whose hus-
lived unhappily with
her on account of the attentions of a certain physician.
During the inquiry
into the circumstances of her hus-
band's death, the story of the wife's intrigue was public through her cross-examination. sell,
who was
made
Sir Charles Rus-
then regarded as standing at the head of
the Bar, both in the extent of his business and in his
success in court, and
Edward
Sir
Clark, one of
her
Majesty's law of^cers, wdth a high reputation for ability in jury trials, ^
were severely
criticised as "forensic bul-
" Extraordinary Cases,"
125
H.
L. Clinton.
THE ART OF CROSS-EXAiMINATION and complained
lies,"
their
example
as "lending the authority of
of
abuse of cross-examination to credit
to the
which was quickly followed by
among whom
tions,
barristers of inferior posi-
the practice was spreading of assail-
ing witnesses with what was not unfairly called a system
innuendoes, suggestions, and bullying from which
of
sensitive persons
many
the
of
was
Gill,
one
criticised as " bettering the instructions of his elders."
as
tices
jewels
be
against Russell was that by his prac-
displayed
— not
curiosity,
laid
only
Osborne case
the
in
may
but there
is
— robbery
of
a man's, or a woman's, whole
bare to malignant
showing how the
of
Mr. Charles
imitators of Russell's domineering style,
The complaint
past
And
recoil."
comment and
public
no means afforded by the courts
facts really stood or of
producing
evidence to repel the damaging charges.
Lord Bramwell,
in
an
published originally in
article
Nineteenth Century for February, 1892, and republished in legal periodicals all
the
methods
over the world, strongly defends
of Sir Charles
Lord Bramwell claimed
Russell and his imitators.
speak
to
after
an experience
of
forty-seven years' practice at the Bar and on the bench,
and long acquaintance with the "
A
pented
legal profession.
judge's sentence for a crime, of, is
sequent
loss
however much
not the only punishment of
character
in
;
there
addition,
is
re-
the con-
which should
confront such a person whenever called to the witnessstand."
"
Women who
carry on 126
illicit
intercourse,
and
CROSS-EXAMINATION TO CREDIT whose husbands die
of poison,
must not complain
woman's
having the veil that ordinarily screens a
" It
from public inquiry rudely torn aside."
is
at life
well for
the sake of truth that there should be a wholesome dread " It
of cross-examination."
be a
trivial matter,
should not be understood to
but rather looked upon as a trying
None but the sore feel were some of the many arguments "
ordeal."
Such
the probe." of the
various up-
holders of broad license in examinations to credit.
Lord Chief Justice Cockburn took the opposite view of the question.
" I
members
deeply deplore that
of the
Bar so frequently unnecessarily put questions affecting the private
life
when they
challenge
which are only
of witnesses,
the
credibility
a
of
have watched closely the administration France, Germany, Holland, Belgium, in Spain, as well as in the
and
in
Ireland,
and
in
United States,
The way
way
our witnesses
is
in
I
justice
in
in
Canada,
so brutally
which we
In England the
most honorable and conscientious men loathe the
terror insult
Men
from
and
women
of
all
themselves
subjecting
frames of
Watch
many persons
the
wit-
ranks shrink with to
the
and bullying misnamed cross-examination
English courts.
treat
a national disgrace and a serious obstacle,
instead of aiding the ends of justice.
ness-box.
little
seen witnesses
I
so badgered, browbeaten, and in every
witness.
and a
Italy,
no place have
maltreated as in England.
of
justifiable
wanton in
our
tremor that passes the
as they enter the witness-box. 127
THE ART OF CROSS-EXAMINATION I
remember
late Sir
have seen so distinguished a
to
Benjamin Brodie shiver
ness-box.
Witnesses are
exquisite torture.
as the
as he entered the wit-
apprehension
daresay his
I
man
amounted
to
just as necessary for
the administration of justice as judges or jurymen, and
same consideration,
are entitled to be treated with the
and
their affairs
sacred
and private
from the gaze
ought to be held as
public
the
of
judges or the jurymen.
lives
as
those
venture to think that
I
the
of
it
is
the duty of a judge to allow no questions to be put to a witness, unless such as are clearly pertinent
where the
issue before the court, except
the witness
is
deliberately challenged
the
credibility of
by counsel and
that the credibility of a witness should not be
wantonly
^
challenged on slight grounds."
The
to
propriety or impropriety of questions to credit
of course largely
Such questions
is
addressed to the discretion of the court.
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 unfair
when
he
testifies
such character that
affect the opinion of the court;
or
its
truth would not
if
there be a great
disproportion between the importance of
A ^
they are
the imputation refers to matters so remote
in time, or of
tion
;
and the importance
the
imputa-
of the witness's evidence.^
judge, however, to whose discretion such questions "Irish
Law Times,"
1874.
^
sir
128
James Stephen's Evidence Act.
CROSS-KXAMINATION TO CRKDl'V are addressed in the fect
knowledge
first
instance, can have but an imper-
He
of either side of the case before him.
cannot always be sure, without hearing
the
all
facts,
whether the questions asked would or would not tend to develop the
truth
Then, again, the mischief
witness.
mere asking
— the
publicly
cretion
He
is
after all
bound
to his profession, to consider
conscience to be asked
judgment oath
it
The
done by the
is
often
if
the judge directs
insinuation has been
The
has been thrown.
dirt
must therefore
lawyer himself.
in
even
of the question,
the witness not to answer.
made
simply degrade the
than
rather
be largely
in honor,
to
left
and out
dis-
the
of respect
whether the question ought
— whether
own honest
in his
renders the witness unworthy of belief under
— before he
allows himself to ask
It is
it.
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
unless in the extreme case of an abandoned
In
criminal
prosecutions
the
usually regarded by the jury
for evil,
and
this source, therefore, has
is
There have been many
flagrant
not a fact that you were not there at I
an added power
calculated to do injustice to the defend-
character in the criminal courts of our it
and impartial.
slur or suggestion adverse to a prisoner's witness
coming from ant.
is
the light of a
in
judicial officer and, as such, unprejudiced
Any
woman.
attorney
district
much
truth,
129
abuses
own all
?
"
of this
city. "
" Is
Has
all
THE ART OF CROSS-EXAMINATION this
been written out for you
story
?
husband
your
you and "
"
"
have
You have been
in every lawsuit
?
" Is
it
not a fact that
concocted
husband
a witness for your
he has had, have you not
?
whole
this
"
— were
all
questions that were recently criticised by the court, on
defendant
People
innuendo," and calculated to prejudice the
"
appeal, as
— by
vs.
Michigan Supreme Court
the
Cahoon
— and
the
in
held sufficient, in connection
with other similar errors, to set the conviction aside.
Assuming
that the material with which
the credibility of a witness fully justifies the
to assail
attack, the question then arises.
keen toward those obliged
The same
the advantage
or positive
to
If
you hold
in
understand that you
crimes on the
may be handled
" I
necessary.
trouble,
have you
trouble
"
?
mean
—
"
Oh,
to
disadvantage of the cross-
your possession the evidence
know it
him
his history, he will surely
Conceal
will likely try to conceal
I
matters
of juries are
the witness's conviction, for example, but allow
get the better of you.
if
to use this material
to confess their
witness-stand.
examiner.
How
The sympathies
to the best advantage?
of
you propose
it
from him, and he
from you, or
lie
about
it
don't suppose you have ever been in }
I
"
will
can't refer to
generally, have
"
bring a quick reply,
What
any particular trouble.
you ever been
in jail
}
"
The
know nothing about him and been many times convicted, will
witness will believe you
deny
it,
or
if
he has
admit some small offence and attempt 130
to conceal every-
CROSS-EXAMINATION TO CREDIT know
thing but what he suspects you
This very attempt to deceive,
him with the jury edge
more
far
already about him.
exposed,
if
destroy
effectually than the knowl-
On
he has committed.
of the offences
will
the other
hand, suppose you taunt him with his crime in the instance
first
ten to one he will admit his wrong-doing
;
in
such a way as to arouse toward himself the sympathy of
jury and
the
who was
resentment toward the lawyer
their
enough
unchristian
uncover
to
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
baron burst into tears
at the
was not doubted.
answer
The
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
con-
fined in the Pavilion for the Insane at the time, the writer
was imprudent enough
how he came
the jury
to ask the witness to explain to
be confined on Ward's Island,
to
only to receive the pathetic reply
because
was insane.
I
locomotor ataxia. nurse.
I
dearly.
You
see
my
She had been
I
I
was sent there
wife was very
a year
;
I
result was,
she had been very good to me.
gave way;
but
I
am
131
with
was her only
was greatly worried over her long
The
ill
We loved each other
tended her day and night.
frightful suffering.
my mind
ill
"
:
I
I
illness
and
worried too deeply
;
overstrained myself,
better now, thank you."
CHAPTER
IX
GOLDEN RULES FOR THE EXAMINATION OF WITNESSES
CHAPTER
IX
GOLDEN RULES FOR THE EXAMINATION OF WITNESSES
David Paul Brown, a member Bar, has
Examination
Although in
it is
"
Golden Rules
for the
of Witnesses."
am
I
any
nesses, yet the
useful
Philadelphia
condensed his experiences into eighteen para-
graphs which he has entitled,
embody
of the
of the opinion that
set of rules the art of
Golden Rules
of
it is
impossible to
examination
Brown contain
so
and valuable suggestions concerning the
well to reprint
them here
of wit-
many that
art,
for the benefit of the stu-
dent.
Golden Rules for the Examinatio^t of Witnesses First, as to If
I.
your own witnesses.
they are bold, and
may
injure your cause
by
pert-
ness or forwardness, observe a gravity and ceremony of
manner toward them which may be
calculated to repress
their assurance. II.
are
If
they are alarmed or diffident, and their thoughts
evidently scattered,
commence your examination
with matters of a familiar character, remotely connected with the subject of their alarm, or the matter in issue 135
;
as,
THE ART OF CROSS-EXAMINATION for instance,
parties
— Where
How
?
Do you know the And you known them etc.
do you
long have
live
?
?
when you have restored them to their composure, and the mind has regained its equilibrium, proceed to the essential features of the case, being careful to be
more
mild and distinct
your approaches,
in
you may again
lest
trouble the fountain from which you are to drink. III.
the evidence of your
If
own
witnesses be unfavor-
able to you (which should always be carefully guarded
exhibit no
against),
many minds
want
of
composure
;
are
for there
that form opinions of the nature or char-
from the
acter of testimony chiefly
effect
which
may
it
appear to produce upon the counsel. IV,
you perceive that the mind
If
of the witness
imbued with prejudices against your from such a quarter
little
which are
essential to
— unless
your
client's protection,
him
sel
as soon as possible.
perceive the bias to which
employ
to
it
your
sible evils, the
ruin.
I
do not
If
hope but
some
there be
that witness alone can prove, either
get rid of
client,
is
facts
and which
call
him, or
the opposite coun-
have
referred,
In judicial inquiries, of
he may all
worst and the least to be resisted
pos-
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
call
is left
to you,
and
other witnesses for the purposes of explanation, you
must bear
in
mind
that, instead of carrying the
136
war
into
GOLDEN
FOR EXAMINING WITNESSES
RUI.KS
the enemy's country, of
your own
forces,
own camp. V.
Avoid
Never
call
compelled to
it
and
struggle
call.
this, Ijy all
This
between sections
means.
whom
your adversary
be
will
you the privilege
afford
will
— take
is still
very heart, perhaps, of your
in the
a witness
cross-examination, privilege
tlie
of
from your opponent the same
thus gives to you,
— and,
in
addition thereto,
not only render everything unfavorable said by the wit-
ness doubly operative against the party calling him, but
power
also deprive that party of the
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.
shape that, it,
careful not to put your question in such a
Be
if
or, at all
Frequent
opposed for informality, you cannot sustain
events, produce strong reason in
its
support.
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
and withdrawing objections
;
it
making
either indicates a
want
of correct perception in makijig them, or a deficiency of real or of
moral courage in not making them good.
IX. Speak to your witness clearly and
you were awake and engaged 137
in a
distinctly, as
matter of
if
interest,
THE ART OF CROSS-EXAMINATION and make him
How
can
also speak distinctly
and
to
your question.
be supposed that the court and jury
it
inclined to listen,
when
shall first
go
to sleep
X. Modulate your voice as circumstances may
finish
?
direct,
and repress the bold."
Never begin before you
XI.
be
the only struggle seems to be
whether the counsel or the witness
" Inspire the fearful
will
when you have
are ready,
and always
In other words, do not ques-
done.
tion for question's sake, but for
an answer.
Cross-examination
Except
I.
from that
of the witness
mind
cation from
never take your eye
in indifferent matters,
to
;
this is a
channel of communi-
mind, the loss of which nothing can
compensate. "Truth, falsehood, hatred, anger, scorn, despair,
And II.
ness of
;
his
Be not
the passions
—
all
the soul
—
is
there."
regardless, either, of the voice of the wit-
next to the eye this
The
mind.
— the
from crime is
all
is
perhaps the best interpreter
very design to screen conscience
mental reservation of the witness
—
often manifested in the tone or accent or emphasis of
For instance,
the voice.
that the witness streets at a
you
at the
o'clock.?
was
it
becoming important
at the corner of Sixth
certain time, the question
is
to
know
and Chestnut asked,
Were
corner of Sixth and Chestnut streets at six
A
frank witness would answer, perhaps 138
I
GOLDEN RULKS FOR EXAMINJNC; WITNESSES was near sirous
But a witness who had been
there.
conceal the
to
speaking to the quiiy, answers,
and
fact,
to defeat
letter rather than
there, de-
your object,
the spirit of the in-
No; although he may have been within
a stone's throw of the place, or at the very place, within
The common answer
ten minutes of the time.
a witness would be,
I
was not
of such
at the cor7ier at six dclock.
Emphasis upon both words plainly implies a mental evasion or equivocation, and
gives
with a skilful
rise
examiner to the question. At what hour were you corner, or at what place were in nine instances out of ten
ness was at the place
tions
;
is
but be watchful,
I
principle
may be
confiding frail,
with
the
or the
mindful of your
powers
IV.
for further illustra-
the
say, of
voice,
and the
easily applied.
of
may
honest;
fearful
thunderbolt to the
virtue
no scope
Be mild with the mild; shrewd with the
III.
the
appear, that the wit-
will
it
And
at six o'clock?
about the time, or at the time
There
about the place.
you
at the
liar.
own
;
merciful
rough
But
in
dignity.
to
the
to all
ruffian,
this,
Bring
the
to
crafty;
young,
and a
never be unbear
all
the
your mind, not that yoit may shine, but that triumph, and your cause
may
prosper.
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, against you,
may
destroy your
the witness perfectly well, and 139
client, unless
know
if
you know
that his answer will
;
THE ART OF CROSS-EXAMINATION be favorable equally well
or unless you be prepared with
;
testimony to destroy him,
he play traitor to the truth
if
and your expectations.
An
V.
equivocal question
is
almost as
much
avoided and condemned as an equivocal answer always leads
to,
or excuses, an equivocal answer.
ness of purpose, clearly expressed,
is
;
to be
and
it
Single-
the best trait in the
examination of witnesses, whether they be honest or the
Falsehood
reverse.
the light of truth, or
is
not detected by cunning, but by
if
by cunning,
it
is
the cunning of
the witness, and not of the counsel.
VI.
the witness determine to be witty or refractory
If
with you, you had better Jirst, or
settle that
account with him
Let him have an opportunity
of satisfying himself either
that he has mistaken yotir power, or his own.
any
But
in
be careful that you do not lose your temper
result,
anger
at
items will increase with the examination.
its
always either the precursor or evidence of
is
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 end
—
partial
in total
upon your guard though
as fatal as
mate
and remediless
defeat.
Never undervalue your adversary, but stand
VIII. steadily
and temporary success may otherwise
skill
;
it
;
a
random blow may be
just
were directed by the most consum-
the negligence of one often cures, and some-
times renders effective, the blunders of another. 140
wrrNESSP:S
GOLDEN RULES FOR EXAMlNINCi IX. to
to the court
Be respectful
your colleague
;
civil
In
citlicr.
"The Advocate,
is
closes
his
admonition to the students, to dently addressed "
:
England about
an excellent chapter on cross-
examination, to which the writer
Cox
and
his Training, Practice, Rights,
a half century ago, there
suggestions.
but never
;
duty to an overweening
Duties," written by Cox, and published in •
kind
to the jury;
your antagonist
to
sacrifice the slightest principle of
deference toward
and
is
many
indebted for
chapter with
whom
his
this
book
final
evi-
is
—
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.
may some-
In addressing a jury you
times talk without having anything to say, and no harm But in cross-examination every question will come of it. that does not advance your cause injures
it.
If
you have
not a definite object to attain, dismiss the witness withThere are no harmless questions here the out a word. ;
most apparently unimportant may If the summit of the orator's victory.
bring destruction or art
has
been
knowing when to sit down, that of an advocate may be described as knowing when Very little experience in our courts to keep his seat. your will teach you this lesson, for every day will show to rightly defined to consist in
observant eye instances of self-destruction brought about 141
THE ART OF CROSS-EXAMINATION Fear not that your
by imprudent cross-examination. reserve
discreet
want seen well
may
be mistaken for carelessness or
The true motive will soon be and approved. Your critics are lawyers, who know the value of discretion in an advocate; and how self-reliance.
of
indiscretion in cross-examination cannot be compensated
by any amount of
ability in other duties.
are sure
to discover
tongue.
Even
apparent
at
result.
if
the
the
the prudence that
wisdom
moment,
it
Your fame may be
of the talker,
but
it
will
of
The
attorneys
governs your
your abstinence be not
will
be recognized in the
of slower
growth than that
be larger and more enduring."
142
CHAPTER X SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS
*;>
CHAPTER X SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS
One
of the
examination
is
best ways to
acquire the art of cross-
methods
to study the
of the great cross-
examiners who serve as models for the legal profession. Indeed, nearly every great cross-examiner attributes his success to the fact of
to
study the art of
having had the opportunity
some great advocate
in
actual
is
always
practice.
In view of the fact also that a keen interest
taken in the personality and examiners,
it
life
sketches of great cross-
has seemed fitting to introduce some brief
sketches of great cross-examiners, and to give some
illus-
trations of their methods.
Sir Charles
Russell,
Lord Russell
of Killowen,
who
died in February, 1901, while he was Lord Chief Justice of
England, was altogether the most successful cross-
examiner
of
modern
while he was
still
times.
Lord Coleridge
practising
at
the
bar,
said of
him
and on one
side or the other in nearly every important case tried, "
Russell It
is
the biggest advocate of the century."
has been said that his success in cross-examination,
like his success in everything, K
145
was due
to his force of
THE ART OF CROSS-EXAMINATION character. skill
was
It
and adroitness, which seemed
Russell
said
is
faculty for using the brain
to
him
to give
whelmins: influence over the witnesses
examined.
added
his striking personality,
whom
to his
his over-
he cross-
have had a wonderful
and knowledge
Others might possess a knowledge
of other
men.
of the subject far in
excess of Russell, but he had the reputation of being able to
make
examination
knowledge valuable and use
that
way
of a witness in a
it
in his
altogether unexpected
and unique. and by
The Ruler
"
Unlike Rufus Choate,
Twelve,"
advocate of the century on this
far the greatest
side of the water, Russell read but to the category of
of the
famous men who
pretended to find any
solace
real
He
little.
"
belonged
neither found nor in
With
books."
Choate, his library of some eight thousand volumes was his
home, and
Choate used
"
his authors
to read at his
were the loves of his
meals and while walking in
the streets, for books were his only pastime.
was Russell a great "
the
first
life."
orator, while
Neither
Choate was ranked as
orator of his time in any quarter of the globe
where the English language was spoken, or who was ever seen standing before a jury panel."
Both Russell and Choate were consummate actors; they were both
knew
men
telling
Each
genius in their advocacy.
the precise points
upon which
to
seize
;
each
knew at a glance what with them, knew how to use to the best
watched every turn
was
of
of the jury,
146
SOME FAMOUS CROSS-EXAMINERS advantage every accident that might arise
the prog-
in
ress of the case. "
One day
fashion.
a junior was taking a note in the orthodox
Russell was taking no note, but he was thor-
oughly on the
alert,
at the judge,
sometimes
glancing about the court, sometimes at the jury,
sometimes
witness or the counsel on the other side.
turned to the junior and '
Taking
a note,'
was the
Suddenly he
'What are you doing?' answer. What the devil do said,
'
?
Why
don't
He
had
been
you mean by saying you arc taking a note
you watch the
case.'*'
'watching' the case.
at the
he burst out.
Something had happened
to
make
a change of front necessary, and he wheeled his colleagues around almost before they had time to grasp the
new
situation."
Russell's
^
maxim
for
cross-examination
"
was,
Go
witness and at the point; throw your
straight at the
cards on the table, mere finesse English juries do not appreciate."
Speaking
of
Russell's success as a cross-examiner, his
biographer, Barry O'Brien says: "It was a fine sight to see
him
rise to
cross-examine.
must have been a shock
His very appearance
to the witness,
defiant bearing, the noble brow, the
— the
haughty
manly,
look, the
remorseless mouth, those deep-set eyes, widely opened,
and that searching glance which pierced the very '
Russell,' said a 1
member
of the
Northern
" Life of Lord Russell,'' Barry O'Brien.
Circuit,
soul. '
pro-
';
THE ART OF CROSS-EXAMINATION duced the same on a
In
rabbit.'
wrong
effect
on a witness that a cobra produces appeared on the
case he
certain
a
Thirty-two witnesses were called, thirty-one
side.
on the wrong
and one on the right
side,
was broken down
of the thirty-one
Not one
side.
in cross-examination
but the one on the right side was utterly annihilated by Russell. " '
How
is
Russell getting on
? '
a friend asked one of
Commission during the days
the judges of the Parnell
of Piorott's cross-examination.
*
Master Charlie
ing very straight,' was the answer.
always bowled generally
'
very straight,' and the
came quickly
him approach
'
to
witness
a
grief.
I
Master Charlie
man
fly at
at the wicket
have myself seen
with great gentleness
gentleness of a lion reconnoitring his prey.
seen him
bowl-
is
I
— the
have also
a witness with the fierceness of a tiger.
must have always looked a very
But, gentle or fierce, he
man who had gone
ugly object to the
into the
box
to
lie."
Rufus Choate had with which to
command
magnetize, he was
He employed examinations.
little
of
Russell's
his witnesses
called "
;
natural
his effort
force
was
to
the wizard of the court room."
an entirely different method in his cross-
He
never assaulted a witness as
termined to browbeat him.
"
if
de-
Commenting once on
the
cross-examination of a certain eminent counsellor at the
Boston Bar with decided disapprobation, Choate '
This man goes
at a witness in
148
said,
such a way that he
in-
famous cross-examinp:rs
somp:
evitably gets the jury
do
he added,
not,'
plan
was
'
on the side of the witness.
all
think that
more wary,
far
He had
a profound knowledge of of
human
hearts.
To
get at these and
human
make them
and
point-blank,
any more than
cross-examine
them was
man who
person on the stand, as
was a gentleman
appeared like a if
and
;
a
demolished him, but with the ing a disagreeable amputation sorry for the necessity.
fair
and honest
man appeared as
that he
badly, he
a surgeon perform-
air of
—
He
you.'
upon the presumption if
fired
absolutely necessary.
is
you don't break your witness, he breaks
treated every
— a very
His motto was: 'Never
mark.
hit the
of
human
patent to the
he would ask only a few telling questions
few questions, but generally every one
If
nature, of the
thoughts of
the
action, of
His own
plan.'
and circumspect.
intelligent,
springs
jury,
good
a
is
I
if
he was profoundly
Few men, good
or bad, ever
cherished any resentment against Choate for his cross-
His whole
examination of them.
style of address to the
occupants of the witness-stand was soothing, kind, and
When
reassuring. witness,
asperity
it
he
came down heavily
was with a calm, resolute
— nothing
curt,
nothing
to crush a
decision, but no
tart."^
Choate's idea of the proper length of an address to a jury
was that
ever makes fifteen
it,
minutes ^
"
a speaker
makes
in the first hou7', ;
for
if
his impression,
sometimes
if
he
in the first
he has a proper and firm grasp
" Reminiscences of Rufus Choate," Parker.
149
THE ART OF CROSS-EXAMINATION he then puts forth the outUne
of his case,,
He
argument.
of
announces rest is
mere
juryman
plays the overture^ which hints at or
coming
the airs of the
all
filling
up
All
opera.
the
answering objections, giving one
:
arguments with which
little
grounds
of his
answer the ob-
to
may be
Indeed, this
jections of his fellows, etc.
as a fixed rule, that the popular
taken
mind can never be
vig-
orously addressed, deeply moved, and stirred and fixed
more than
07ze
hour
in
What Choate was
America, and Erskine, and
to
later
John Philpot Curran was
to Ireland.
ranked as a jury lawyer next to Erskine.
The son
Russell, to England,
He
any single address."
of a peasant,
1806.
he became Master of Rolls for Ireland
He had
shrill voice,
a small, slim body, a stuttering, harsh,
originally of such a diffident nature that in
the midst of his
dropped his
first
case he became
brief to the floor,
and experience he became one
speechless
it
was said
the most ingenious
of
and
and yet by perseverance
most eloquent and
of the
powerful forensic advocates of the world.
examiner
in
Curran that
"
As
a cross-
he could unravel
web which perjury ever spun, he
could seize on every fault and inconsistency, and build
on them a denunciation It
was said
of Scarlett,
his cases because there in
terrible in its earnestness."
the jury-box.
Lord Abinger,
that he
^
won
were twelve Sir James Scarletts
He became
one of
the leading jury
lawyers of his time, so far as winning verdicts was con^
"Life Sketches of Eminent Lawyers," Gilbert
150
J. Clark.
SOME FAMOUS CROSS-EXAM NEKS I
weak
used to wheedle
Scarlett
cerned.
juries over the
the
Choate would rush them right
places in his case.
over with that enthusiasm which he put fire in his
would
level himself right
down
he flattered and won them.
made them with
conversation
each juryman, while
In his cross-examinations
is
was leaving in a
his purpose,
his court
by Justice Wightman who
the court. Judge
he can, but
whom
of the
seen,
day
he could not
man, and finding
occasion on which he had been at
Wightman asked him what he thought "
Well," said the countryman,
Brougham be
a wonderful man, he can talk,
the leading counsel.
that lawyer
and to
Liking the look first
him
one day and found himself walking
as a juryman,
that this was the
tell
a conflict."
crowd alongside a countryman, whom he had
help speaking.
were by
and thus secured a
commence
told about Scarlett
by day, serving
of
it
them, encouraged them to
victory without appearing to
A story
Scarlett
his friends, entered into familiar
what would best answer
"
to
he would take those he had to examine, as
the hand,
everything,
eye and fury on his tongue."
"with
"
intr)
I
don't think
nowt
of
Lawyer
Scarlett."
—
"Indeed!" exclaimed the judge, "you surprise me, for " Oh, there's nowt you have given him all the verdicts."
—
in that,"
was the
reply,
"
he be so lucky, you
always on the right side."
Choate also had a way jury-box,"
he be
of getting himself " into the
and has been known 1
see,
^
"Curiosities of
to address a single jury-
Law and Lawyers."
THE ART OF CROSS-EXAMINATION man, who he feared was against him,
for an
together, one of his favorite expressions
my
only half
body
of
Like
my
nervous,
gentlemen,
case,
Erskine was
Scarlett,
He,
maiden
at his
him,
"
to the
this
main
height and
first
felt,
of a blood horse
much betokening
too, lacked the
effort
had he not ging
medium
of
motions resembled those
cation and was at his
go now
But
all
he was handsome and magnetic, quick and
" his
as light, as limber, as
speed."
I
was, "
proofs."
slender, but
—
at a
After he had piled up proof and persuasion
time.
is
hour
strength and
advantage of a college edu-
painfully unready of speech.
he would have abandoned his
In case,
as he said, that his children were tug-
gown.
"
In later years," Choate once said of
he spoke the best English ever spoken by an ad-
vocate."
Once, when the presiding judge threatened to
Your Lordship may proceed in what manner you think fit; I know my duty as well as your Lordship knows yours." His simple grace of diction, quiet and natural passion, was in marked commit him
for contempt, he replied, "
contrast to Rufus Choate, whose delivery has been described as
"
a musical flow of
like a long, rising,
argument."
rhythm and cadence, more
and swelling song than a
To one
of his clients
with Erskine's efforts in his behalf, his counsellor
don't "
plead
on a
You'll be hanged
who was dissatisfied and who had written
slip of paper, "
my own if
cause,"
you
do." 152
talk or an
I'll
be hanged
if
I
Erskine quietly replied, Erskine boasted that
SOMK FAMOUS CROSS-LXAMlNLkb in
twenty years
by
ill
And
liealth.
known
to
rise
never been kept a clay from
lie liad
Curran
said of
it is
C(jurt
he has been
tliat
before a jury, after a session of sixteen
hours with only twenty minutes' intermission, and make
one
of the
Among
most memorable arguments
of his
more modern advocates
the
life.
of the
English
Henry Hawkins stands out conspicuously. He reputed to have taken more money away with him
Bar, Sir is
from the Bar
tlian
when
ing characteristic skill in
any man
at the
Coleridge in the
first
Bar,
He was
cross-examination.
His lead-
of his generation.
Tichborne
was
his marvellous
associated with Lord
trial,
and
in his cross-
examination of the witnesses, Baignet and Carter, he
made
his reputation as
the world."
"the foremost cross-examiner
Sir Richard
^
cross-examiner.
He
is
Webster was another great
said to
have received $100,000 for
his services in the trial before the Parnell Special sion, in
which he was opposed
Rufus Choate said sidered
man
in
istic of
of
the
Webster
America.
Daniel Webster, that he con-
of
called
And
in the world.
Choate the most
on
brilliant
Parker relates an episode character-
the clashing of swords between these two idols
American and a
a sentence
Bar.
"
look,
We
heard Webster once, in
crush an hour's argument of
Choate's curious workmanship ally
Commis-
to Sir Charles Russell.
him the grandest lawyer
his death-bed
in
;
it
was most
intellectu-
wire-drawn and hair-splitting, with Grecian sophis^
• Life Sketches of
Eminent
153
Lawj-ers,'" Clark.
THE ART OF CROSS-EXAMINATION and a subtlety the Leontine Gorgias might have
try,
envied.
It
was about two car-wheels, which
eyes looked as like as two eggs fine line of
but Mr. Choate, by a
;
argument between tweedle-dum and tweedle-
dee,
and a discourse on
and
fine as to lose itself in obscurity,
there
w^as
common
to
the fixation of points
'
so deep
showed the jury between
heaven-wide difference
a
'
them.
But,' said
Mr. Webster, and his great eyes opened wide
and black,
as he stared at the big twin wheels before
'
him, 'gentlemen of the jury, there they are
'em
; '
and as he pronounced
— look
at
this answer, in tones of vast
volume, the distorted wheels seemed to shrink back again into their original similarity, and the long argu-
ment on the It
'
fixation of points
was an example
ascendency
of the
over mere intellectuality
died a natural death.
'
but so
;
theless, the i7itellectualityr
of
much
mere character greater,
never-
^
Jeremiah Mason was quite on a par with either Choate
Webster before a
or
and
plain.
He
to the jury-box,
jury.
was no
and
in
His
orator.
to
own
was conversational
He would go
close up
the plainest possible logic force
Webster
conviction upon his hearers. his
style
said he
"
owed
success to the close attention he was compelled
pay for nine successive years, day by day,
efforts at the
peer at the
same
As
Bar."
New England
In the history of our ^
to
Mason's
a cross-examiner he had no
Bar.
own New York Bar
" Reminiscences of Rufus Clioate," Parker.
there have
SOMK FAMOUS CROSS-EXAMINKRS been, iDrobably, but few equals of
He was famous
ton as a cross-cxamincr.
and mildness
Judge William
Fuller-
calmness
for his
manner, his rapidly repeated questions
of
his sallies of wit interwoven with his questions,
;
and an
ingenuity of method quite his own. Fullerton's cross-examinations in the celebrated Tilton vs.
Henry Ward Beecher case gave him an
reputation,
and were considered the best ever heard
And
this country.
ous and
brilliant,
owing probably far the
were singularly unproductive
The
most celebrated
of Christian preachers
powers of
of its
One
of results,
and shrewd-
to the unusual intelligence
courts have ever witnessed.
suasive
in
yet these very examinations, labori-
ness of the witnesses themselves.
was by
international
trial
as a whole
kind the
New York
most eminent
of the
was charged with using the
his eloquence, strengthened
per-
by
his
religious influence, to alienate the affections
and destroy
church — a
devout and
the probity of a
member
theretofore pure-souled friend.
He was
of his
woman, the
charged with continuing the guilty
tion during the period of a year
ing the offence to his
own
and a
it,
and then divine guidance out
adding perjury sequences.
half,
and
rela-
of cloak-
conscience and to hers under
specious words of piety; of invoking
on
wife of a long-loved
first
divine blessing
of
;
it
and
finally of
to seduction in order to escape the con-
His accusers, moreover, Mr. Tilton and Mr.
Moulton, were persons of public reputation and honorable station in
life.
155
THE ART OF CROSS-EXAMINATION The
length and complexity of Fullerton's cross-exami-
any minute mention
preclude
nations
Once when he found
them
of
Mr. Beecher for not
fault with
answering his questions more freely and
was frankly made,
reply
directly, the
/ am afraid of you
"
here.
" !
While cross-examining Beecher about the celebrated "
ragged
Fullerton asked
letter,"
an explanation to the church,
if
answered that he was keeping
why he had
he was innocent. his part of the
made
Beecher
compact
of
and added that he did not believe the others were
silence,
keeping
There was audible laughter throughout
theirs.
the court
room
at this remark,
and Judge Neilson ordered
room any
the court ofHcer to remove from the court
—
son found offending
"
per-
Except the counsel," spoke up
Later the cross-examiner exclaimed im-
Mr. Fullerton.
patiently to Mr. Beecher that he was all
not
bound
to find out
about these things before he got through, to which
Beecher retorted,
" I
don't think you are succeeding very
well."
Mr. Fullerton
not rise up and deny the charge
Mr. Beecher magnetic
men of
force,
nor
Why did you
" }
(putting into his voice
all
that marvellous
which so distinguished him from other "
of his time).
mind,
"
a voice like thunder).
(in
Mr. Fullerton, that
my manner
of
is
not
dealing with
my
habit
men and
things."
Mr.
Fullerton.
"
So
I
observe.
You
say that Theo-
dore Tilton's charge of intimacy with his wife, and the 156
SOME FAMOUS CROSS-FCXAMINERS charges made by your church and by the committee of
your church, made no impression on you
" ?
Mr. Becchcr (shortly). " Not the slightest" At this juncture Mr. Thomas G. Sherman, Beecher's personal counsel, jumped to his client's aid, and remarked that it was a sinQ:ular coincidence that when counsel had not the record before him, he never quoted correctly.
Mr. Fullerton (addressing the court impressively). "When Mr. Sherman is not impertinent, he is nothing in this case."
Judge Neilson thought
—
"
rescue).
Probably counsel
"
Mr. Fullerton thinks,
the
(to
(interrupting).
"What
Mr. Sherman
your Honor, cannot possibly be
of
sufficient
importance to take up the time either of the court or
opposing counsel." "
Are you
Hshed
?
"
having your sermons pub-
in the habit of
Mr.
continued
knowledged that he was, and a sermon on
"
The
Mr. Sherman is
Beecher
Mr.
Fullerton.
also that he
ac-
had preached
Nobility of Confession." " I
(sarcastically).
hope Mr. Fullerton
not going to preach us a sermon."
Mr.
Ftdlerton.
" I
would do so
if
I
thought
I
could
convert brother Sherman."
Mr. Beecher the use of
my
(quietly).
will
be happy to give you
pulpit."
Mr. Fullerton only audience
" I
I
(laughing). shall want."
157
"
Brother Sherman
is
the
THE ART OF CROSS-EXAMINATION Mr. Beecher
audience you can
Mr.
I
I
consider
will
Perhaps he
the only
is
get." " If
Ftillerton.
Sherman,
"
(sarcastically).
succeed in converting brother
my work as
a Christian minister
complete."
Mr. Fullerton then read a passage from the sermon, the effect of which was that sin,
and the exposure
of
it
a person commits a great
if
would cause misery, such a
person would not be justified in confessing relieve his
he
still
At
own
this point
"
sound doctrine."
Mr. Fullerton turned to the court, and
pointing to the clock, said,
sermon,
I
Mr. Beecher admitted that
conscience.
considered that
merely to
it,
believe,
"
Nothing comes
but the benediction."
after the
His Honor
took the hint, and the proceedings adjourned.^ In this same
trial
Hon. William M. Evarts,
as leading
counsel for Mr. Beecher, heightened his already international reputation as an advocate. versatility in the
comment.
It
was Mr. Evarts's
Beecher case that occasioned so
Whether he was examining
much
in chief or
on
cross, in the discussion of points of evidence, or in the
summing
up, he displayed equally his masterly talents.
His cross-examination piece. cal.
His speeches
of
Theodore Tilton was a master-
in court
were
clear, calm,
logi-
Mr. Evarts was not only a great lawyer, but an
orator and statesman of the hiorhest distinction. o ^
and
He
has
Extracts from the daily press accounts of the proceedings of one of the
thirty days of the trial, as reported in
"Modern Jury 158
Trials,"
Donovan.
SOME FAMOUS CROSS-KXAMINKRS "the
been called
Prince of
was a gentleman
American
the
Bar."
high scholarship and fine
of
His manner
He
literary
of
a case has been
described by some one as "all head,
nose, voice, and
tastes.
He was
forefinger." "
slender,
the
trial
seven inches
five feet
tall,
thin
and
with a face like parchment."
H. Choate once
Mr. Joseph
owed
that he
in
his
own
me
told
he considered
success in court to the nine years
during which he acted as Mr. Evarts's junior in the
trial
of cases.
No
said this.
His transcendent genius as an advocate could
one but Mr. Choate himself would have
not have been acquired from any tutelage under Mr. Evarts.
When
Ambassador
Mr. Choate accepted his appointment as
Court of
to the
the practice of the law; and
comment upon
He was not New York
it is
James, he retired from therefore permissible to
his marvellous talents as a jury lawyer.
only easily the leading Bar, but
of his time
lawyer of the
trial
was by many thought
representative lawyer of the
man
St.
American
was more successful
Bar.
in
trial
in
any particular one
the
Surely no
winning
His career was one uninterrupted success. shone especially
to be
Not
juries.
that he
of the duties of the
lawyer, but he was preeminent in the quality of his
humor and keenness
of satire.
His whole conduct
case, his treatment of witnesses, of the court, of
of a
opposing
counsel, and especially of the jury, were so irresistibly
fascinating and winning that he carried ever}^thing before
him.
One would emerge from 159
a three weeks' contest
THE ART OF CROSS-EXAMINATION with Choate in a state almost of mental exhilaration, despite the jury's verdict. It
was not so with the
Edward
late
James
C.
;
a contest
with him meant great mental and physical fatigue for
James was ponderous and
his opponent.
His cross-examinations were labored
indefatigable.
the extreme.
in
His manner as an examiner was dignified and his
mind always
alert
and centred on the subject before
him; but he had none
He was
brilliancy.
would pound
He
mark.
at
forceful,
Mr. Choate's fascination or
of
determined, heavy.
dogged,
He
you incessantly, but seldom reached the wore out his opponent, and could
literally
never realize that he was on the wrong side of a case until the
foreman
of the jury told
he would want the jury polled
some mistake.
to see
Even then
so.
there was not
if
James never smiled except
in
triumph
When
Mr. Choate
you couldn't help smiling with him.
During the
and when smiled,
him
his
opponent frowned.
last ten years of his life
James was found on one
side or
the other of most of the important cases that were tried.
He owed
his success to his industrious
qualities as a fighter
;
not,
Bar."
think, to his art.
I
of the
New
His success was almost entirely due
to his
James T. Brady was
York
called "the
courtesy and the marvellous tions.
He had
and was one
and indefatigable
Curran
skill of his
a serene, captivating
cross-examina-
manner
in court,
of the foremost orators of his time.
has the proud record of having defended 1
60
fifty
He
men on
SOMK i'AMOUS CROSS-KXAMINERS and
trial for their lives,
of saving every
one of them from
the gallows.
On
American
of the
treated of a
Bar,"
He
an unexpected turn
ducting.
He was
his witnesses alike.
all
He
many
lost
alone would have orator.
methodical, but
was slow
in a case
cases and
conduct a desperate one.
to attune
him-
he might be con-
was not
to
fitted
was as a court orator that
It
His speech
he was preeminent.
He
was a poor cross-examiner.
domineering manner.
self to
mate
Hamlet
the other hand, William A. Beech, "the
made him
in
the
Beecher case
a reputation as a consum-
His vocabulary was suiprisingly rich and
his voice wonderfully winning. It is
said of
James
tained the greatest of
W.
Gerard, the elder, that
number
full of
he ob-
of verdicts against evidence
any one who ever practised
was
"
at the
New York
He
Bar.
expedients and possessed extraordinary
In his profound knowledge of
human
ready adaptation, in the conduct of liarities, caprices,
and whims
tact.
nature and his
trials, to
the pecu-
of the different juries before
whom he appeared he was almost without a rival. Any one who witnessed the telling hits made by Gerard on cross-examination, and the sensational
.
.
.
Mr. inci-
dents sprung by him upon his opponents, the court, and the jury, would have thought that he acted upon the inspiration of the
said
moment
was impromptu.
preparation for
L
trial.
In
— that
fact,
all
he did and
all
he
Mr. Gerard made thorough
Generally his hits in cross-examii6i
THE ART OF CROSS-EXAMINATION nation were
made
the
To
briefs for cross-examination.
flashes of wit
and
He
previous preparation.
of
result
his extraordinary
a large extent his
and grotesque humor
were well pondered over and studied up beforehand."
Roscoe Conkling that
Justice Miller said of
one
of the greatest
was more than
fifty
men
office in
New York
New York to
He
when he abandoned
During
was
his
Washington, and opened an
at
City.
Bar, such
he was
intellectually of his time."
years of age
arduous public service
"
^
his six years at the
his success, that he
is
reputed
have accumulated, for a lawyer, a very large fortune.
He
constituted himself a barrister and adopted the plan
He
of acting only as counsel. of speech,
most thorough
was fluent and eloquent
in the preparation of his cases,
and an accomplished cross-examiner. career,
he said of himself,
fore twelve
men
"
My
in the box."
Despite his public
proper place
is to
be be-
Conkling used to study
for his cross-examinations, in important cases, with the
most painstaking minuteness.
In the
trial of
the Rev.
Henry Burge
for murder,
was
turn upon the cross-examination of Dr.
likely to
Swinburne,
Conkling saw that the case
who had performed
the
autopsy.
The
charge of the prosecution was that Mrs. Burge had
been strangled by her husband, who had then cut her throat.
In order to disprove this on cross-examination,
Mr. Conkling procured a body for dissection and had dissected, in his presence, the parts of the ^
" Extraordinary Cases,"
Henry Lauran
162
body that he
Clinton.
SOME FAMOUS CROSS-EXAMINERS As
wished to study.
examination at the
tlic
Swinburne's cross-
result of Dr.
trial,
the presiding judge
com-
felt
pelled to declare the evidence so entirely untrustworthy that he would decline to submit
and directed
to the jury
it
that the prisoner be set at liberty.
This studious preparation for cross-examination was one of the secrets of the success of
Benjamin F.
was once known to have spent days of a steam-engine,
and even learning
examining all parts one himself,
to drive
some witnesses
in order to cross-examine
tant case in
in
He
Butler.
an impor-
in
At another
which he had been retained.
time Butler spent a week in the repair shop of a road, part of the time with coat off
and hammer
in
rail-
hand,
ascertaining the capabilities of iron to resist pressure
a point on which his case turned.
guage
:
"
A
lawyer
who
To
sits in his office
cases only by the statements of those
use his
almost
who
who
sciences."
A
pleasant
A
lawyer in
must study
and many
business
humor and
his
are brought
carefully prepares his cases,
every variety of
lan-
and prepares
to him, will be very likely to be beaten. full practice,
own
—
of
the
a lively wit, coupled
with wonderful thoroughness and acuteness, were Butler's
He was
leading characteristics.
nor even a great advocate
like
Rufus Choate, and yet
he would frequently defeat Choate. tion
was
his chief
not a great lawyer,
His cross-examina-
Here he was
weapon.
fertile
in re-
source and stratagem to a degree attained by few others.
Choate had mastered
all
the 163
little
tricks
of
the
trial
THE ART OF CROSS-EXAMINATION lawyer, but he attained also to the grander thoughts
and the
logical
powers
Butler's
success
depended upon
of
the really great advocate.
combined with
zeal,
shrewdness and not overconscientious trickery. In his autobiography, Butler gives several examples of
what he was pleased
and
to call his legerdemain,
to
believe were illustrations of his skill as a cross-examiner.
They
are quoted from
"
Butler's Book," but are not re-
the
printed as illustrations of
examination, but
subtler forms of
rather as indicative of
which Butler owed much
cross-
the tricks to
of his success before
country
juries. "
When
defend a
I
was quite a young man
man
and
He and
for homicide.
been engaged
in
I
was
called
upon
his associate
to
had
a quarrel which proceeded to blows
at last to stones.
My
client,
with a sharp stone,
struck the deceased in the head on that part usually called the temple.
The man went and
sat
down on
the
curbstone, the blood streaming from his face, and shortly
afterward "
the the
over dead.
fell
The theory of the government was that he died from wound in the temporal artery. My theory was that man died of apoplexy, and that if he had bled more
from the temporal a wide
artery,
enough difference
he might have been saved
—
in the theories of the cause of
death. " I
Of course
must know
to be enabled to carry out
all
my
about the temporal artery, 164
—
proposition its
location,
'
SOME FAMOUS CROSS-KXAMINKRS functions,
its
through to
and
it,
capabilities iu allow the bloorl
its
how
in
man
short a time a
death through the temporal artery
;
could bleed
also,
citement in a body stirred almost to frenzy
how
in
and largely under the influence
tered conflict,
on a hot day, would tend relieved on these
to pass
far ex-
an embitof liquor
produce apoplexy.
to
two points
my
in
I
was
subject, but relied
wholly upon the testimony of a surgeon that the
man
bled to death from the cut on the temporal artery from
hand
a stone in the
one
of those
my
of
whom we
sometimes see on the stand, who
know on
think that what they don't profession
and
is
That surgeon was
client.
the subject of their
He
not worth knowing.
testified positively
was and could be no other cause
distinctly that there
for death except the bleeding
from the temporal
and he described the action
of
amount "
artery,
the bleeding and
the
of blood discharged.
Upon
all
these questions
had thoroughly prepared
I
myself. "
Mr.
Butler.
Doctor, you have talked a great deal
'
about the temporal artery it
and
its
functions
called because
I
}
Yes
"
Mr. Butler.
artery take "
'
'
;
that
Very
its rise in
Witness.
'
you please describe
suppose the temporal arteiy
skull, especially that part
Witness.
will
is
so
supplies the flesh on the outside of the
it
"
now
;
we
call
the temples, with blood.'
is so.'
Where
well.
the system
No, the aorta
is
165
?
does the temporal
Is it at
the heart
?
the only artery leaving the
'
'
'
'
'
THE ART OF CROSS-EXAMINATION Branches
heart which carries blood toward the head.
from
it
carry the blood
"
of these.'
Ml". Butler.
'
Doctor, where does
on the inside or the outside
it ?
" "
Wihiess.
'
On
Mr. Butler.
"
Witness.
"
Mr.
'
opening "
"
" "
"
Mr.
'
it
have anything
'
'
do inside with
it
how does
it
get outside to
?
passes out through
its
appropriate
Butler. '
I
through the eyes
'
The
ears
?
It
'
it
would be inconvenient not, doctor
my
produced from
cannot find any opening on appropriate to the point out
.?
No.'
Butler.
Here
Is that
No.'
the mouth, would "
to
}
Well, doctor,
Oh,
Butler.
Witness.
Mr.
of the skull
in the skull.'
Witness.
Mr.
from
'
supply the head and temples '
off
?
No.'
Butler.
Witness.
branch
it
the inside.'
Does
'
supplying the brain
"
into the
and the temporal artery branches from
skull at the neck,
one
up through the opening
to
go through
'
1
green bag a
this skull
temporal artery.
which
skull. I
'
think
I
is
Will you please
the appropriate opening through which
the
temporal artery passes from the inside to the outside of the skull
?
"
He
"
Mr. Butler.
was utterly unable so '
Doctor,
I
to do.
don't think i66
I
will trouble
you
SOME FAMOUS CROSS-KXAMINERS He
any further; you can step down.'
was saved on
client's life
The
"
it
s(;,
my
and
point.
temporal artery doesn't go inside the skull at
had a young
" I
tliat
did
client
who was on
The
siderable speed over the cross-ties for
my
client
on
his seat.
when
a railroad car
was derailed by a broken switch.
all.
car ran at con-
some
distance,
and
was thrown up and down with great violence After the accident,
the bruising,
was found that
it
when he recovered from his nervous .system
had
been wholly shattered, and that he could not control his degree by any act of his
nerves in the slightest
When
came
the case
to
by which the position thirds
damages
and the case resolved
damages
tion
off,
was
controlled, two-
settled the liability of
that occurred from that cause,
itself
My
only.
the production of the pin
of the switch
worn away and broken
the road for any
of
trial,
into a question of the
claim was that
my
railroad
client's condi-
The
was that
geon who appeared examining
testify.
I
my
it
was
simply nervousness, which
The
sur-
for the road claimed the privilege client
personally
before
he should
did not care to object to that, and the doctor
who was my
witness and the railroad surgeon went into
the consultation tion in
to the
claim put forward on behalf of the
probably would disappear in a short time.
of
amount
was an incurable one, arising from the injury
spinal cord.
will.
which
I
room together and had
a full examina-
took no part, having looked into that
matter before. 167
'
'
THE ART OF CROSS-EXAMINATION "
After some substantially immaterial matters on the
part of the defence, the surgeon was called and was quali-
He
fied as a witness.
testified that
Of course
great position in his profession.
was not
interested, for
knew he could
I
technical description of the condition of
my
admitted that
client's
Of
only temporary. the truth,
somewhat
all this
I
took
warm
room
court
notice
little
"
Hysteria, sir
'
he
;
That waked me
stand
little
"
—
I
" I
—
'
?
hysterical.'
is
up.
I
said,
'
Doctor, did
—
my
'
Witness.
my '
'
client
Yes,
Mr. Butler. Witness,
to
what
client
subsided, and the examination went on
condition of
under-
I
.''
sir.'
came my turn to cross-examine. " Mr. Butler. Do I understand
"
:
was not paying proper attention
Hysteria,
'
"
But the
sleepy.
did you attribute this nervous condition of
"
for, to
;
Doctor, to what do you attribute this condition of
'
the plaintiff which you describe "
much
late the night before
a
felt
He
client.
would probably be
it
had been up quite
I
my
counsel for the road put this question to him "
I
qualify himself
nervous system was very
shattered, but he also stated that
in the
that
in
deal of the time in giving a very learned and
and
of
In his direct examination he spent a good
as an expert.
tell
man
he was a
'
sir
And
No,
sir
;
that
wholly hysterical
you think ?
undoubtedly.' therefore won't last long
;
until
not likely i68
to.'
'
}
it
this
SOME FAMOUS CROSS-KXA MINERS Mr.
"
Butler.
it
and
hysteria
disease called isn't
Well, doctor,
'
Witness.
may
It
'
"
womb "
"
Witness.
You
'
examined
may, doctor;
it
Greek word
'
before, but
if I
can find
That
it.
are right,
here,'
pointing to
womb
?
I
is all,
doctor
when you
my
client,
was not aware
of
you may step down.'
;
"
numerous noted law-
in
But he was almost
parts of the country.
all
the
sir.'
Robert Ingersoll took part suits in
vcrre/aa
have him examined over again and see
will
I
it?
?
did you find that he had a
it
isn't
'
young man
this
come
all
?
'Well, doctor, this morning
'•'Mr. Butler.
and
hysterics;
*
Isn't an exact translation of the
word
the
be.'
'Don't say
Butler.
''Mr.
Enfjlish
effects
its
not
is
;
true that hysteria, hysterics, hysterical,
from the Greek word varepa "
us sec
let
He was a Henry Ward Beecher
helpless in court without a competent junior.
born orator
ever there was one.
if
regarded him as "the most brilliant speaker of the English
tongue
He was
any land on the globe."
in
found lawyer, however, and hardly the equal mediocre
Of the
lawyer in the examination
trial
art of
His definition
own
words, was
"
of
knew
who accumulated
pounds, and
it
all
" is
"
My
that great
a fortune of a million
in his will to
i6q
prac-
a lawyer, to use his-
once wrote,
English attorney
most
witnesses.
a sort of intellectual strumpet."
ideal of a great lawyer," he
left
of the
of
cross-examining witnesses he
tically nothing.
not a pro-
make
a
home
for
THE ART OF CROSS-EXAMINATION idiots,
declaring that he wanted to give
whom
people from
he took
of the
United States Court about I
an argument before Mr. Justice I
came
I
wished
into the court I
ngersoU had concluded
Miller, while
and remarked
had got there a
to
Judge Miller that
sooner, as
little
on Circuit
had never
I
make a legal argument." Judge Miller, "you never will."^
heard Colonel
"Well," said
IngersoU
Who
Ingersoll's genius lay in other directions.
IngersoU could have written the following
A
"
little
Napoleon
he
relates a conversation
"Just after Colonel
IngersoU.
to the
it."
Judge Walter H. Sanborn had with Judge Miller
back
it
while ago
:
—
—
but
stood by the grave of the old
I
— a magnificent
tomb
of gilt
and
gold,
fit al-
dead
deity,
and gazed upon the sarcophagus
of black marble,
where
rest at last the ashes of that rest-
most
less
for a
man.
I
leaned over the balustrade, and thought
about the career of the greatest soldier of the modern world.
I
saw him walking upon the banks
contemplating suicide putting at the
down
head
of the
Toulon
;
I
saw him
in the streets of Paris
;
I
saw him
I
;
mob
the
saw him
of the Seine,
army
in Italy
;
at
I
saw him crossing the
bridge of Lodi, with the tricolor in his hand in
;
Egypt, in the shadows of the Pyramids;
conquer the Alps, and mingle the eagles the eagles of the crags;
and
at Austerlitz 1
;
I
I
saw him
saw him
at
of
I
saw him saw him
France with
Marengo,
in Russia,
at
where the
"Life Sketches of Eminent Lawyers," Gilbert
170
I
J.
Clark.
Ulm, infan-
S(JMK J'"AM()US CROSS-KXAiMlNKRS try of the
snow and the cavalry
of the wild blast scat-
tered his legions like winter's withered
him
at Leipsic, in defeat
ion
bayonets back
beast
;
and
upon
banished to Elba.
an empire by the force
disaster; driven
of his genius.
combined
wreck the fortunes
And
I
saw him
by a
mill-
a wild
like
saw him upon
I
Waterloo, where chance and
field
to
saw
saw him escape and retake
I
the frightful
of
clutched
Paris;
I
leaves.
at St.
of
their former
fate
king.
Helena, with his hands crossed
behind him, gazing out upon the sad and solemn I
sea.
thought of the orphans and widows he had made, of
the tears that had been shed for his glory, and of the
only
woman who had hand
heart by the cold
ever loved him, pushed from his of ambition.
And
rather have been a French peasant, and
shoes
;
I
would rather have lived
I
said
I
would
worn wooden
in a hut, with a vine
growing over the door, and the grapes growing purple the kisses of the
autumn
that poor peasant, with
sun.
my
I
would rather have been
my
my side, knitwith my children
loving wife by
ting as the day died out of the sky,
upon
knees, and their arms about
rather have been that man, and less silence of the
in
me.
gone down
I
would
to the tongue-
dreamless dust, than to have been that
imperial impersonation of force and murder,
Napoleon the Great."
171
known
as
CHAPTER
XI
THE CROSS-EXAMINATION OF RICHARD PIGOTT BY SIR CHARLES RUSSELL BEFORE THE PARNELL COMMISSION
CHAPTER
XI
THE CROSS-EXAMINATION OF RICHARD PIGOTT BY
SIR
CHARLES
RUSSELL BEFORE THE PARNELL COMMISSION
The modern method quiring any
art,
illustrated in our
the
is
studying any subject, or ac-
of
inductive
This
method.
is
law schools, where to a large extent
actual cases are studied, to get at the principles of law
instead of acquiring those principles solely through the
a priori method
As to
of the study of text-books.
method
already indicated, this
become a master
is
also the only
of the art of cross-examination, and,
in addition to actual personal experience,
to study the
way
methods
it is
important
of great cross-examiners, or those
whose extended experience makes them
safe guides to
follow.
Hence, the writer believes ful to the students
of the
have placed before them,
art
in a
condensed form, some good of
it
would be decidedly of
help-
cross-examination to
convenient and somewhat
illustrations of the
well-known cross-examiners as exhibited
methods in
actual
practice, in the cross-examination of important witnesses
in
famous
trials.
175
THE ART OF CROSS-EXAMINATION For these reasons, and the further
fact that
amples are interesting as a study of
human
such exnature,
I
have in the following pages introduced the cross-exami-
some important witnesses
nation of
in several
well-known
cases.
Probably one of the most dramatic and successful the
more celebrated cross-examinations English courts
of the
Pigott
— the
is
in
of
the history
Russell's cross-examination of
chief witness in the investigation
growing
out of the attack upon Charles S. Parnell and sixty-five Irish
members
a lawless
of Parliament,
for belonging to
and even murderous organization, whose aim
was the overthrow
The
by name,
of
English
rule.
principal charge against Parnell,
and the only one
that interests us in the cross-examination of the witness
was the writing
Pigott,
Times claimed
to
of a letter
have
by Parnell which the
obtained
and
published
which he excused the murderer
facsimile, in
in
Lord
of
Frederick Cavendish, Chief Secretary for Ireland, and of
Mr. Burke, Under Secretary, in Phoenix Park, Dublin,
on May read,
" I
6,
1882.
One
particular sentence in the letter
cannot refuse to admit that Burke got no more
than his deserts."
The stir in
publication of this letter naturally
made
Parliament and in the country at large.
stated in the forgery,
and
House
later
of
Commons
a great Parnell
that the letter
was a
asked for the appointment of a select
committee to inquire whether the facsimile 176
letter
was
CROSS-KXAMINA rioN OK RICHARD incorv The Government
a forgery.
refused this request, but
appointed a special committee, composed of three judges, to investigate
The
made by
all
the charges
is
indebted again to Russell's biographer,
writer
Mr. O'Brien, for the details of
Seldom has any Russell,
this
legal controversy
celebrated
case.
been so graphically
One seems
described as this one.
the Times.
to
be living with
and indeed with Mr. O'Brien himself, through-
We
out those eventful months.
must content
ourselves,
however, with a reproduction of the cross-examination of Pigott as
it
comes from the stenographer's minutes
of the trial, enlightened
by the pen
of Russell's facile
biographer.
Mr. O'Brien speaks Russell
— the
of
it
as "the event in the
of
In order to under-
defence of Parnell."
Times the
take this defence, Russell returned to the
had enjoyed from them
retainer he
life
for
many
previous
was known that the Times had bought the
years.
It
letter
from
Mr.
Houston, the secretary
of
the
Irish
Loyal and Patriotic Union, and that Mr. Houston had
bought it?
from Pigott.
it
But how did Pigott come by
That was the question
of the
hour, and people
looked forward to the day when Pigott should go into the box to
should
tell
rise to
" Pisfott's
came
by the
Irish
and when Sir Charles Russell
cross-examine him.
evidence in
cerned,
M
his story,
Mr. O'Brien writes:
chief, so far as the letter
practically to this
:
he had been employed
Loyal and Patriotic 177
was con-
Union
to
hunt up
THE ART OF CROSS-EXAMINATION documents which might incriminate bought the facsimile from an agent
letter,
with other
of the Clan-na-Gael,
and he had
Parnell,
who had no
objection
to injuring Parnell for a valuable consideration. "
tient, irritable, at
He was
with his
first brief
Now
at the Bar.
strength
;
impa-
at luncheon,
thoroughly out of
of a
young junior
all
was changed. of
As he
stood facing
calmness, self-possession,
not a trace of
illness, anxiety,
up the
or care
;
a slight tinge
face, the eyes sparkled,
bearing and manner
and a
The whole
pleasant smile played about the mouth.
of the man, as he proudly turned
head toward the box, showed courage, resolution,
confidence.
Addressing the witness with much courtesy,
while a profound silence
began
of
.
there was no sign of impatience or irritabil-
of color lighted
my
.
than of the most formidable advocate
he was a picture
Pigott,
;
to be
and gave you the idea rather
sorts,
Even
times disagreeable.
hour before, he seemed
half an
his
.
During the whole week or more Russell had looked
pale, worn, anxious, nervous, distressed.
ity
Paris
letters, in
' :
fell
upon the crowded
court,
he
Mr. Pigott, would you be good enough, with
Lords' permission, to write some words on that sheet
paper for
do so
.-*
ness.
'
I
A
me ?
Perhaps you
will sit
down
in order to
sheet of paper was then handed t% the wit-
thought he looked for a moment surprised.
This clearly was not the beginning that he had expected. sell
He
observed
hesitated, it.
At
seemed confused. all
,
Perhaps Rus-
events he added quickly: ^7^
—
'
'
'
'
'
CROSS-EXAMINATION OK RICHARD PIGOTT " '
Would you
"'Oh,
?
no, thanks,' replied Pigott, a little flurried.
The President.
"
down
like to sit
you should can write
'
Well, but
Here
down.
sit
think
I
is
better that
a table upon which you
the ordinary way — the
in
is
it
course you always
pursue.' "
down and seemed
Pigott sat
recover his equi-
to
librium. '*
Russell.
"
'
Will you write the word
word
?
"
likelihood
Pigott wrote.
"
Russell.
'
"
?
will not trouble
Egan " and
He
own name
Will you write your
you write the word
rick
Will you write the
'Just leave a space.
"
"
livelihood "
Pigott wrote.
'^Russell.
I
"
"
proselytism," and finally
you
" P.
at present with
Egan "
(I
think
any more)
uttered these last words with emphasis, as
Pigott had written, he added carelessly, I
Lower down,
had forgotten.
spaces, write the
was about point,
Will
word
to write,
"
hesitancy."
he added, as
'with a small
"
"
Pat-
.?
h." '
if
Pigott
if
they
Then, when
imported something of great importance.
word
?
'
There
is
one
leaving
please,
Then, as Pigott
'
this
were the
vital
wrote and looked
relieved. " Russell. "
'
Will you kindly give
Pigott took up a bit of
the sheet,
when
me
the sheet
blotting paper to
.?
lay on
Russell, with a sharp ring in his voice,
179
THE ART OF CROSS-EXAMINATION said rapidly, that
'
Don't blot
the sharp ring in
please.'
it,
seemed
It
Russell's voice startled
Pigott.
While writing he had looked composed now looked flurried, and nervously handed back the
again he
;
The
attorney general looked keenly at
man who had
with the air of a Lords,
it,
me
to
sheet.
and then
said,
himself scored,
'
My
suggest that had better be photographed,
I
if
your Lordships see no objection.' ''Russell (turning sharply toward the attorney general,
and with an angry glance and an Ulster accent, v/hich sometimes broke out when he
my
interrupt " Little
that, in
Do
did the attorney general at that
to ask these questions, Russell
Pat Egan spelt
moment know
'
the sheet '
hesitancy
thus,
'
'
had gained a
In fact
to it
In one of
hesitency.'
hesitancy
'
now handed back
hesitency,' too.
was so
'
spelt
and
;
Russell, Pigott
members on
word that had put the
scent.
Pat Egan, seeing the word spelt with an 'e
effect,
ascribed to you is
Irish
of the incriminatory letters,
the
way
"
Pigott
is
"
hesitancy
had written
the forger. is
when he
of in the
to
philosophy of
his '
in
Parnell,
In the letter
spelt " hesitency."
Pigott always spells the word.'
were not dreamt general
'
had
was Pigott 's spelling
of this
saying in
it
Pigott had in one of his letters to
the incriminatory letters
one
not
cross-examination with that request'
decisive advantage.
written
'
the ten minutes or quarter of an hour which
had taken
in
irritated).
felt
That
These things the attorney
interrupted Russell's cross-examination i8o
'
CROSS-EXAMINATION OF RICHARD PIGOTT with the request that the sheet
So closed
graphed.' "
the
'
had better be photo-
round
first
of
the combat.
Russell went on in his former courteous manner, and
who had now completely recovered looked once more like a man determined to
confidence,
Pigott,
stand to his
guns. "
some preliminary points
Russell, having disposed of
he had been perhaps about half an
at length (and after
hour on his " Russell.
feet), '
closed with the witness.
The
nellism and Crime
"
was on
"
Pigott
"
Russell (amiably).
(sturdily).
'
"
publication of the articles
first
the 7th March, 1887
.?
do not know.'
I
Well, you
'
Par-
'
may assume
that
is
the
date.' "
Pigott (carelessly).
"Russell.
publication letters
so.'
correspondence,
the
of
of
the
the
intended
incriminatory
.?
'
No,
I
was not
at all
aware of
it.'
Russell (sharply, and with the Ulster ring in his
voice). "
suppose
I
'And you were aware
''Pigott (firmly). "
*
'
What
'
}
Pigott (boldly).
'
No, certainly
not.'
'Were you not aware that there were grave be made against Mr. Parnell and the leading
''Russell
charges to
members "
of the
Land League }
Pigott (positively).
'
I
'
was not aware
actually commenced.' 181
of it until
they
'
'
THE ART OF CROSS-EXAMINATION ^'Russell {2ig2im with the Ulster ring). "
Pigott
(defiantly).
'
'
was not aware
I
What? of
it
until the
publication actually commenced.' " '
Russell (pausing, and looking straight at the witness).
Do you
swear that
'
}
"
Pigott (aggressively).
"
Russell (making a gesture with both hands, and look-
ing toward the bench).
'
I do.'
'
Very good, there
no mistake
is
about that' "
Then
there was a pause
Russell placed his hands
;
beneath the shelf in front of him, and drew from papers
one
—
Pigott, the attorney general, the judges, every
in court looking intently at
was not a
abounding as "
me
letter,
Is that
if it is
"
as
'
reading
"
letter
Do
?
letter,
think
it
was the
cross-examination,
—
Then, handing
not trouble to read
it
;
tell
and held
it
close to his eyes
it.
'
Yes,
I
'
Do
think
not trouble to read
it.'
it is.'
Russell (with a frown).
''Pigott.
:
There
while.
letter.'
Russell (sharply).
" Pigott.
the whole
in
Russell said calmly
your
your
I
did in dramatic scenes.
Pigott took the
if
"
it
him the
movement.
breath, not a
most dramatic scene
Pigott a
some
it
'
Have you any doubt
of
it ?
'No.'
"Russell (addressing the judges).
from Anderton's Hotel, and
it
ness to Archbishop Walsh.
The 182
is
'My
Lords,
it
is
addressed by the witdate,
my
Lords,
is
the
CROSS-EXAMINATION OF RICHARD PIGOTT 4th of March, three clays before the the
first of
"
He
"
'
first
appearance of
the articles, "Parnellism and Crime."'
then read
:
—
Private and confidential.'
"'My Lord: which
I
— The
importance of the matter about
doubtless excuse this intrusion on
write will
your Grace's attention.
Briefly,
wish to say that
I
1
have been made aware of the details of certain proceedings that are in preparation with the object of destroying the influence of the Parnellite party in Parliament.'
Having read
"
said
:
" '
—
What were
preparation
much
this
the
Russell turned to Pigott and
proceedings that were in
certain
'
?
"
Pigott.
"
Russell (resolutely).
'
I
do not
recollect.' '
Turn
to
my
Lords and repeat
the answer.' "
Pigott.
"
Russell.
March,
less
''Pigott. "
'
'
Pigott.
You swear
'
'
I '
'
" Russell.
You do do not
May
I
Pigott.
on the 4th
of
'
}
'
'
not
know what
that referred to
'
}
really.'
suggest to you
'
}
Yes, you may.'
Did
Oh,
the incriminatory letters
refer to
it
amono^ other things "
— writing
that
'Yes.'
" Rtissell.
"
recollect'
than two years ago
Russell.
" Pigott.
do not
I
'
}
at that date
.?
183
No, the
letters
had not
'
THE ART OF CROSS-EXAMINATION been obtained,
ago "
had they, two years
think, at that date,
I
?
Russell (quietly and courteously).
confuse you at " Pigott.
'
'
I
do not want to
Mr. Pigott.'
all,
Would you mind
me
giving
the date of
that letter?' "
RussclL
" Pigott. ''
The 4th of March.' The 4th of March.' '
'
RicsselL
'
Is it
your impression that the
not been obtained at that date "
Pigott.
'
Oh,
yes,
some
letters
had
'
}
of the letters
had been ob-
tained before that date.'
'Then, reminding you that some
'^Russell. letters
had been obtained before that
sage that letters "
I
have read to you in that
among
Pigott.
'
other things
No,
I
you
I
letter refer to these
'
rather fancy they had reference to
Times'
Russell (glancing keenly at the witness). told us
coming "
date, did that pas-
"^
the forthcoming articles in the '^
'
I
thought
you did not know anything about the
forth-
articles.'
Pigott (looking confused).
am
the
of
mistaken
— that
I
'
Yes,
I
did.
I
find
now
must have heard something
about them.' "
Russell (severely).
'
Then
mistake again, Mr. Pigott.
"
try not to
make
the same
Now," you go on (continu-
ing to read from Pigott's letter to the archbishop),
cannot enter more
fully into details
184
" I
than to state that the
'
'
'
CROSS-EXAMINATION
RICHARIJ
OI'
V](]()T'y
proceedings referred to consist
in
tain statements purporting to
prove the complicity of
the i)ublication of cer-
Mr. Parnell himself, and some of his supporters, with
murders and outrages probability, by the
Ireland, to be followed, in
in
institution
criminal
of
all
proceedings
against these parties by the Government.'" "
Having
letter
and said (turning toward the witness),
you that
'
I
have no
'
But that
letters.'
PigotL
do not
"
'
I
Pigott.
'
''
Pigott.
"
Russell.
I '
'
will not
Do
No, '
among
swear that it
it
it
it
did
not,'''
did.'
letters,
if
genuine,
Parnell's complicity in
?
Pigott.
prove
that
did not.'
think that these
would prove or would not prove crime
did.'
?
did
do not think
Do you
it
'Do you swear
you think I
other things, to the
recollect that
Rtissell ["^xiX^. energy).
" Russell.
"
told
idea.'
refers,
incriminatory
''
Who
the
Russell (striking the paper energetically with his
fingers).
''
'
?
" Pio^ott. "
down
finished the reading, Russell laid
'
I
thought they would be very likely to
it.'
''Russell.
'
Now, reminding you
you whether you did not intend suggest, but
among
other things
of that opinion,
to refer
—
— not
I
ask
solely,
to the letters as
I
being
the matter which would prove complicity or purport to
prove complicity
'
}
185
'
'
'
'
'
THE ART OF CROSS-EXAMINATION "
Pigott.
Yes,
'
" Russell.
You
'
may have had
I
that in
my
mind.'
could have had hardly any doubt that
you had ? "
Pigott.
" Russell.
'
Russell.
(reading), " full
so.'
You suppose you may have had ?
'Yes.'
''Pigott. "
suppose
I
'
There
'
the
is
Your Grace may be assured
am
knowledge, and
"
Russell.
"
Pigott.
what
I
what
of
say."
I
speak with
beyond
Was
all
that
I
'
It
Then
'
'
could hardly be
did you write that which was false
suppose
I
said.
I
true.'
it
was
.?
in order to give strength
do not think
it
was warranted by what
knew.'
I
"
to
Russell
'
You added
the untrue statement in order
add strength to what you said ''Pigott. "
Russell.
"
Pigott.
"
Russell
"Pigott. "
may be
.?
'Yes.' '
'
You
believe these letters to be genuine
'
}
I do.' '
And
did at this time
'
}
'Yes.'
Russell (reading).
Grace that
if
that
statement
?
" Pigott.
to
the
in a position to prove,
doubt and question, the truth true
and
letter
I
am
'
"
And
I
will further assure
also able to point out
successfully
combated and
how
your
these designs
finally defeated."
How,
these documents were genuine documents, and you be-
lieved
them
to be such,
how were you 1
86
able to assure his
'
'
'
CROSS-EXAMINATION OF RICHARD PKiOTT Grace that
y(ju
were able to point out liow the design
might be successfully combated and " Pigott.
in
Well, as
'
my mind
I
say,
had not the
I
So
at that time.
far as
not recollect the letter to Archbishop
memory "
Russell.
You
'
deliberation and
me
told
I
letters actually
can gather,
Walsh
at
all.
a
moment
do
My
consideration, you
ago, after great
had both the
criminatory letters and the letter to Archbishop in
I
on the circumstance.'
really a blank
is
?
finally defeated
in-
Walsh
your mind.' "
Pigott.
said
I
'
it
was probable
thing has completely faded out of "
Russell
(resolutely).
my
did
out
how
Assuming means by which
the design might be successfully combated and ?
"
Pigott (helplessly).
"
Russell.
"
Pigott
"
Russell (looking fixedly at the witness).
Oh,
'
'
''Russell
'
I
You must
try.
I
reall)^ try.'
no
"
Russell (emphatically).
'
It is
I
cannot'
Tiy.'
my
Lords
use.'
is
'
May
that
I
take
'
I
really
cannot absolutely.' 187
it,
then, your
you cannot give any
?
Pigott.
'
'
'Try.'
Pigott.
planation
really.'
cannot.'
*'
to
cannot conceive
manifest confusion and distress).
(in
" Pigott.
"
say the
I
Grace that you could point
to assure his
finally defeated
answer
but
mind.'
the letters to be genuine, what were the
you were able
;
must press you.
I
'
I
ex-
'
'
'
'
THE ART OF CROSS-EXAMINATION "
Russell (reading).
'
assure your Grace that
" I
have
I
no other motive except to respectfully suggest that your
Grace would communicate the substance
whom
or other of the parties concerned, to
how
that, "
Pigott.
have nothing
I
'
"
Russell.
"
Pigott.
''
Rttssell. '
Russell.
the
coming say to
a prize
round.
I
do not
coming blow
the
.?
was
it
to be effectively met.f* sli2:htest idea.'
Assuming the
now occur
to
be genuine, does
letters to
your mind how
it
could be
.?
'No.'
''Pigott.
in
to say except that
absolutely.'
have not the
I
met
effectively
Pigott
How
'
not even
"
fur-
suppose the coming publication.'
I '
it
What was
'
'
" Pis'ott.
it
could
Mr. Pigott?'
recollect anything about
"
I
What do you
nish details, exhibit proofs, and suggest
blow may be effectually met."
some one
to
now looked like a man, after the sixth round fight, who had been knocked down in every
But Russell showed him
no mercy.
I
shall
take another extract.
"
Russell.
'
Whatever the charges
Crime," including the to be true or not "
Pigott.
know what
'
letters,
in
"
Parnellism and
were, did you believe
them
?
How
can
I
say that
the charges were
?
I
when say
I
I
say
do not
I
do not
recollect
'
'
'
CROSS-KXAMINA'IION OK RICHARD PJGOI that letter to the archbishop at
stances
it
refers
''Russell.
or any of the circum-
to.'
you knew
iMrst of all
'
all,
that you pro-
this:
cured and paid for a number of letters? ''PicroiL
T
'
'Yes.'
'Which,
"Russell.
if
genuine, you have already told
whom
me, would gravely implicate the parties from
these
were supposed to come. ''
Pigott.
"
Russell.
'
Yes, gravely implicate.'
You would
'
serious charge ''
"
suppose, as a
I
1
Russell.
'
Did you believe
that charge to be true or
.?
"
Pigott.
"
Russell.
"
Pigott.
"
Russell
'
I '
'
I '
believed that charge to be
You
true.'
believed that to be true
'
}
do.'
Now
I
read this passage [from Pigott's
will
letter to the archbishop], " I
that,
'Yes.'
Pio-otl.
false
regard
'
need hardly add
I
that, did
consider the parties really guilty of the things charged
against them, 3^our I
I
should not dream of suggesting that
Grace should take part
only wish to impress on
dence
is
apparently
be
sufficient
an
English
Pigott "
to
an effort to shield them
your Grace that the
convincing, and
conviction
secure
jury."
in
What do you
would if
evi-
probably
submitted
say to
;
to
Mr.
that,
.?
Pigott (bewildered).
'
I
say nothing, except that 189
I
am
''
THE ART OF CROSS-EXAMINATION sure
I
my mind when
could not have had the letters in
said that, because
do not think the
I
letters
me
sufficiently serious charge to cause
I
conveyed a
to write in that
way.' "
Russell.
'
But you know that was the only part
of
the charge, so far as you have yet told us, that you had
anything to do in getting up "
Pigott.
something
'
Yes, that
"
Russell.
"
Pigott.
'
'
I
what
is
my mind
else in
— that
recollect
?
I
say
which
What
charges
must have had
cannot at present
I
must have had other
I
I
;
charges.'
?
do not know.
That
what
is
I
cannot
tell
you.' "
Russell.
part
lar
were
'
Well,
me remind you
charges
of the
— the
the archbishop).
I
line
'
" I
avert,
if
same
I
is
another letter of Pigott's to
from your Grace,
as
I
far honored.
have no other motive
possible, a great
your Grace
about.'
was somewhat disappointed
might have been so
Grace that
all
—
'Yes, of course.'
''Russell (reading from
having a
that that particu-
incriminatory letters
you yourself knew
letters that
^'Pigott.
let
known
time, should
in not
ventured to expect I
can assure your
in writing save to
danger to people with
to be in strong sympathy.
whom At
the
your Grace not desire to interfere in
the matter, or should you consider that they would refuse
me of
a hearing,
what
I
I
am
well content, having acquitted myself
conceived to be
my 190
duty in the circumstances.
'
'
CROSS-EXAMINATION OF RICHARD PIGO I
not further trouble your Grace save to again beg
will
that
you
will not allow
do so would
to
T
I
my name
to transpire, seeing that
interfere injuriously with
my
prospects,
without any compensating advantage to any one.
make
the request
had no part
all
the
what
in
more confidently because was enabled
I
the details."
all
to
Pigott (with a look of confusion and alarm).
"
Russell.
Wliat do you say to that
'That
""Pigott.
not the letters in "
Russell.
mind
my
Then
'
had not the
it
become
'
"
'
have
I
being done to the prejudice of
is
the Parnellite party, though
acquainted with
I
appears to
me
Yes.'
'
'
?
clearly that
I
had
mind.'
appears to you clearly that you
it
if
your mind, what had you in your
letters in
?
''Pigott.
'It
must have been something
far
more
serious.' " Rtissell. "
'
What was
it ?
Pigott (helplessly, great beads of perspiration stand-
ing out on his forehead and trickling
cannot
you.
tell
" Russell.
'
It
I
have no
"
Pigott (vacantly).
"
Russell
(briskly).
Pigott
"
Russell.
(in despair). '
I
idea.'
far
more
}
'
'
'
'
Far more
Can you
most indirect kind
"
his face).
must have been something
serious than the letters
of the
down
'
to I
serious.'
give
what
it
my
was
Lords any clew '
}
cannot.'
Or from whom you heard 191
'
it }
'
THE ART OF CROSS-EXAMIMATION "
Pigott.
No.'
'
Or when you heard it? Or when I heard it.' Pigott. " Russell. Or where you heard it t " Picrott. Or where I heard it' " Russell Have you ever mentioned " Russell.
'
"
'
'
'
'
'
ter
— whatever
"
Pigott.
"
Russell.
'
Pigott.
On
anybody
Still
locked up, hermetically sealed in your
'
No, because it
has gone away out of
it
receiving this answer Russell smiled, looked at
A
ripple of derisive laughter
broke over the court, and a buzz of
and
me
people standing around said,
'
The judges
Splendid.'
melted away, and an throng expressed, single word,
'
I
think, the
Smashed.'
later
many voices looked
at
each other
rose, the great
crowd in
the
general sentiment in a
"
was finished the following
and the second day he disappeared sent
followed.
who mingled
Irishman
Pigott's cross-examination
day,
my
was.'
the bench, and sat down.
The
}
'
bosom, whatever "
to
this fearful mat-
'
No.'
'
own bosom } "
is
it
—
back from Paris a confession
entirely,
of his guilt,
admitting his perjury, and giving the details of
had forged the alleged Parnell
letter
and phrases from genuine Parnell
and
how he
by tracing words
letters,
placed against
the window-pane, and admitting that he had sold the
forged letter for ^605. 192
T
CROSS-KXAMINMION OV RICHARD PIGO After the confession was read, the Commission that
it
was a forgery, and
the
"
1"
found
"
limes withdrew the
facsimile letter.
A
warrant was issued for Pigott's arrest on the charge
of perjury, but
when he was tracked by
the police to a
hotel in Madrid, he asked to be given time
enough
collect his belongings, and, retiring to his room,
his brains.
193
to
blew out
CHAPTER THE CROSS-EXAMINATION OF
XII
DR.
W. HARRIS CASE
IN
THE CARLYLE
CHAPTER THE CROSS-EXAMINATION OF
XII
DR.
IN
THE CARLYLE W.
HARRIS CASE
The
the criminal courts in this country
records of
much human
contain few cases that have excited so terest
among
classes of the
all
community
cution and conviction of Carlyle
Even
to this
day — ten years
W.
in-
as the prose-
Harris.
— there
after the trial
a widespread belief
among men, perhaps more
among women, who
did not attend the
listened to the current gossip of the
trial,
is
especially
but simply
day and followed
the newspaper accounts of the court proceedings, that
Harris was' innocent of the crime for the commission of
which his It
is
life
was
proposed
facts that led
up
forfeited to the state. in this
chapter to discuss some of the
to the testimony of
one of the most
guished toxicologists in the country,
who was
the defence on the crucial point in the case extracts
from
;
distin-
called for
and
to give
his cross-examination, his failure to with-
stand which was the turning-point in the entire
He
returned to his
home
in Philadelphia after
witness-stand, and openly declared in public, 197
he
trial.
left
the
when asked
THE ART OF CROSS-EXAMINATION to describe his experiences in "
gone
return It is
New York
to
home also
of the case
only to
New
make
York, that he had
a fool of himself and
again."
proposed to give some of the inside history
—
facts that
never came out
at the trial,
because they were unknown at the time to the
not
district
attorney, nor
unsusceptible of proof, but because the
strict rules of
evidence in such cases often, as
to the writer, withhold facts,
mere
the
from the ears
recital of
of the jury certain
which seems to conclude the
For example, the
question of guilt.
seems
it
rule forbidding the
presentation to the jury of anything that was said by the victim of a homicide, even to witnesses surrounding the death-bed, unless the victim in express teiTns
known
his
own
abandoned tells
all
belief that
causes that led
full
if
live,
and that he has
hope or expectation of recovery before he
the tale of the
prisoner,
he cannot
makes
manner
up
to
it,
in
which he was
has allowed
slain,
many
or the
a guilty
not to escape entirely, at least to avoid the
penalty for the crime he had undoubtedly committed.
Carlyle
Harris was a gentleman's son, with
advantages of education and breeding.
all
the
In his twenty-
second year, and just after graduating with honors from the College of Physicians and Surgeons in City, he
Helen
was indicted and
Potts, a
tried for the
New York
murder
of
Miss
young, pretty, intelligent, and talented
school girl in attendance at Miss Day's Ladies' Boarding School, on 40th Street.
New York 198
City.
:
THE CROSS-EXAMINATION OF
DR.
Harris had niade the acquaintance of Miss Potts in the
summer
marked
of
and
1889,
The
attention to her.
who was
visiting her uncle, of a four
months'
child,
during the winter paid
all
following spring, while
a doctor, she was delivered
and was obliged
to confess to
her mother that she was secretly married to Harris under
assumed names, and self
that her student
husband had him-
performed an abortion upon her.
Harris was sent
for.
He acknowledged make
his wife's statements, but refused to
From
public.
this
time on,
death, the wretched
till
the truth of
the marriage
the day of her daughter's
mother made every
effort to
Harris to acknowledge his wife publicly.
wrote him on the 20th
on the 8th
of January, 1891,
induce
She
finally
"You must go
of February, the anniversary of
your secret
marriage, before a minister of the gospel, and there have
a Christian marriage performed this will
— no
any longer be satisfactory
That very day Harris ordered
to
other course than
me
at
or keep
me quiet."
an apothecary store
each containing 4J grains of quinine and of a grain of morphine, and had the box marked
six capsules, J-
"
C.
W.
H. Student.
One
had been complaining gave her four
He
of
sick headaches,
of these capsules as
"
unless
and
Harris
an ostensible remedy.
then wrote to Mrs. Potts that he would
terms
Miss Potts
before retiring."
asfree to
some other way could be found
of satisfy-
ing her scruples," and went hurriedly to Old Point fort.
Upon
hearing from his wife IQQ
that
her
Com-
the capsules
THE ART OF CROSS-EXAMINATION made her worse to
instead of better, he
On
continue taking them.
persuaded her
still
the day of her death she
complained to her mother about the medicine Carlyle
had given
her,
and threatened to throw the box with the
Her mother
remaining capsule out of the window. suaded her to try this
last one,
per-
which she promised to do.
Miss Potts slept in a room with three classmates who,
on
had gone to a symphony concert.
this particular night,
Upon
found Helen asleep, but woke
their return they
her up and learned from her that she had been having "
such beautiful dreams," she
Carl."
Then
she
"
had been dreaming
complained of feeling numb,
becoming frightened, begged the
She repeated
to sleep.
that she
girls
She soon
fell
let
and
her go
had taken the medicine
Harris had given her, and asked them possible that he
not to
of
if
they thought
would give her anything
to
harm
it
her.
into a profound coma, breathing only twice
The
to the minute.
doctors worked over her for eleven
hours without restoring her to consciousness, when she stopped breathing entirely.
The
autopsy,
fifty-six
days afterward, disclosed
an
apparently healthy body, and the chemical analysis of the contents of the stomach disclosed the presence of
morphine but originally
7iot of
quinine, though the capsules as
compounded by
seven times as
much
the druggist contained twenty-
quinine as morphine.
This astounding discovery led
to
the theory of the
prosecution: that Harris had emptied the contents of 200
THE CROSS-EXAMINATION OF
DR.
one of the capsules, had substituted morphine cient quantities to
nine
kill,
o/ the
in place
4J-
in
suffi-
grains of qui-
powdered quinine and morphine arc and had placed this fatal capsule in the box
the eye,
(to
identical),
with the other three harmless ones, one to be taken each night.
He had
then fled from the
city,
not knowing
which day would brand him a murderer. Immediately
after his wife's
of his medical friends
capsules of the six
I
death Harris went to one
and said
"
:
had made up
I
;
only gave her four l/ie
two
will show that they are perfectly harmless.
I
kept out
No jury
can
me with those in )ny possession ; they can be analyzed and proved to be harmlessr They were analyzed and it was proved that the pre-
convict
scription
had been correctly compounded.
But
often-
times the means a criminal uses in order to conceal his
deed are the very means that Providence employs to reveal the sin that lies hidden in his soul. to foresee that
it
was the preservation
that would really convict him.
Harris failed
of these capsules
Miss Potts had taken
all that he had given her, and no one could ever have
been certain that
it
was not the druggist's awful mistake,
had not these retained capsules been analyzed. Harris emptied one capsule and reloaded phine, he It
nize it
had himself become
it
with mor-
the druggist.
was contended that Harris never intended
Helen Potts
appeared
as his wife.
at the trial,
When
— as 201
He it
to recog-
married her in secret,
were from
his
own
lips
— THE ART OF CROSS-EXAMINATION through the medium
of conversation with a
friend,
"because he could not accomplish her ruin other way."
He
ried to her before
New
brought her to
his purpose,
evidence of their marriage, the false the day
was
York, was mar-
an alderman under assumed names,
and then having accomplished
when
any
in
set
burned the
certificate.
Finally,
upon which he must acknowledge
her as his wife, he planned her death.
The trial
late recorder,
Frederick Smyth, presided at the
The
with great dignity and fairness.
prisoner was
ably represented by John A. Taylor, Esq., and William
Travers Jerome, Esq., the present district attorney of
New
York.
Mr. Jerome's cross-examination of Professor Witthaus, the leading chemist for
the prosecution, was
tremely able piece of work, and during disclosed an
amount
search such as
is
of technical
its
an ex-
eight hours
information
seldom seen in our courts.
and
re-
Had
it
not been for the witness's impregnable position, he certainly
would have succumbed before the
length and technicality of the examination render impracticable in this connection
;
but
to all students of cross-examination
it is
who
The
attack. its
use
recommended
find themselves
confronted with the task of examination in so remote a
branch of the advocate's equipment as a knowledge
of
chemistry.
The
defence consisted entirely of medical testimony,
directed toward creating a doubt as to our theory that 202
THE CROSS-EXAM IN A'I'ION OF morphine was the cause
of
DR.
Their cross-exami-
death.
from
nation of our witnesses was suggestive of deatli natural causes
:
from heart disease, a brain tumor, apoIn fact, the multiplicity of their
plexy, epilepsy, uremia.
defences was a great weakness. forced to abandon
—
that by
was
it
it
but two possible causes of death,
morphine poisoning and that by uremic
poi-
This narrowed the issue down to the question,
soning.
Was
all
Gradually they were
a large dose of morphine that caused death, or a latent kidney disease that was superinduced
and brought
to light
in the
form
of
uremic coma by
small doses of morphine, such as the one-sixth of a grain
admittedly contained
the
in
capsules
Harris admin-
In one case Harris was guilty; in the other
istered?
he was innocent.
Helen Potts died
coma
of
in a
Was it the Many of disease ?
profound coma.
morphine, or that of kidney
the leading authorities in this city had given their convictions in favor of the those, the defence
doctors, selves,
morphine theory.
was able
to call a
In reply to
number
of
young
who have since made famous names for thembut who at the time were almost useless as
witnesses
with the jury because
inexperience.
of
their comparative
Mr. Jerome had, however, secured the
services of one physician who, of
all
the others in the
country, had perhaps apparently best qualified himself
by
his writings
and
thirty years of hospital experience to
speak authoritatively upon the subject. 20^
THE ART OF CROSS-EXAMINATION Misdirect testimony was his opinion partly
to the effect that
upon wide reading
the subject, and what
seemed
to
to be the general
consensus of professional opinion about
ease
;
and
"
very
own experience'" no living doctor can coma of morphine from that of kidney
dis-
it,
—
largely on his
tinguish the
Hterature of
of the
him
— basing
and as the theory
law
of the criminal
is that, if
dis-
the
death can be equally as well attributed to natural causes as to the use of poison, the jury
would be bound
to give
the prisoner the benefit of the doubt and acquit him. It
was the turning-point
jurors credited
in the trial.
this testimony,
reasons for his opinion in
and impressive
— the
If
any
witness
of the
gave the
a very quiet, conscientious,
manner, — there
certainly could be no
conviction in the case, nothing better than a disagree-
ment
of the jury.
It
was certain Harris had given the
capsules, but unless his wife
had died
of
morphine
poi-
soning, he was innocent of her death.
The cross-examination
that follows
and given partly from memory. witness would withstand any
It
is
much
abbreviated
was apparent that the
amount
of technical exami-
nation and easily get the better of the cross-examiner
such matters were gone impression. less
interest.
The
into.
He had made
court had listened to
He must
a profound
him with breath-
be dealt with gently and,
possible, led into self-contradictions
if
where he was
if
least
prepared for them.
The
cross-examiner sparred for an opening with the 204
THE CROSS-KXAiMINATlON OF determination to strike quickly and to in
one
The
telling blow.
DR.
down
sit
if
he got
one missed aim a
first
little,
but the second brought a peal of laughter from the jury
and the audience, and the witness
Even
fusion. heart,
retired in great con-
the lawyers for the defence seemed to lose
and although two hours before time
ment, begged the court for a recess
of adjourn-
the following
till
day.
Counsel
Do
"
(quietly).
you wish the jury
Miss Helen
stand, doctor, that
morphine poisoning.?
Potts
to
under-
not die
did
of
"
Wibiess.
"I do not swear to
Counsel.
"
Witness.
" I
don't swear
Cou7isel.
" I
understood you to say that in your opin-
ion the
What
symptoms
with positiveness. Witness. Counsel.
" I
"
that."
did she die of
" }
what she died
of."
morphine could not be sworn
of
Is that correct
to
" ?
don't think they can, with positiveness."
Do you
wish to go out to the world as
saying that you have never diagnosed a case of morphine poisoning excepting when you had an autopsy to exclude
kidney disease Witness. Counsel.
symptoms
" }
" I "
do
not.
have not said
I
Then you have diagnosed
alone,
yes
"^
or
no
}
so."
a case on the
want a categorical
I
answer." " I
Witness (sparring). question categorically
;
would refuse
the word 205
'
to
answer that
diagnosed
'
is
used
"
"
""
"
THE ART OF CROSS-EXAMINATION One has to make what is working diagnosis when he is called to a
with two different meanings.
known
as a
'
'
case, not a positive diagnosis."
When
"
Counsel.
phine poisoning " I
Wihiess.
was your
can't
remember which was
Counsel (seeing an opening).
Give
of the patient.
case of
last
opium or mor-
.?
me
"
the
last."
don't want the
I
name
the date approximately, that
is,
the year — but under oath." Witness.
" I
Counsel.
"
Witness
think the
How many
years ago
"It
(hesitating),
was some years ago."
last
" }
may be
eight or ten years
ago."
Counsel.
poisoning
"
Was
"
Yes,
sir."
Was
there an autopsy
a
it
case
death from morphine
of
?
Witness.
"
Counsel.
Witness.
"
No,
Counsel.
"
How
morphine,
Witness.
" I
sir."
did you
you said
as
if,
be distinguished
"
Counsel
was a death from
such symptoms cannot
began
But that
woman
morphine."
of
You made no
" I "
before,
it
found out from a druggist that the
heard from the druggist Witness.
know
?
had taken seven grains Counsel.
" }
diagnosis at
all
until
you
.?
to give artificial respiration." is
just
case of morphine poisoning
?
206
what you would do
in a
"
THE CROSS-EXAMINATION OF DR. Witness
"
(hesitating).
Yes,
sir.
I
made, of course, a
working diagnosis."
Do
"
Counsel.
you remember the case you had before
that.?"
Witness.
remember another
I
When
Counsel.
"
Witness.
" It
know
was that
was a
"
Witness.
"
Witness.
"
"
Witness.
Counsel
Any
don't
I
Witness.
}
Twenty
years ago."
Are these
"
Yes,
"
No,
you can remember
Were more
than one of them
sir."
"
it).
sir,
C^?^7^W (looking all
all
three cases
" .?
deaths from morphine
it
" }
"
When
Counsel (chancing
Wit7iess.
.?
Yes, one other."
" "
years ago, on your oath
probably."
others
your experience
Then
.?
longer time ago.
still
How many
" Fifteen,
Counsel.
Counsel.
"
case."
"
the date»"
Counsel
in
"
" }
only one."
at the jury
comes down
somewhat triumphantly).
to this
:
you have had the
experience of one case of morphine poisoning in the last
twenty years 1
Witness
(in
"
a low voice).
"
Yes,
sir,
one that
I
can
remember." Counsel
(excitedly).
"And
are
you willing
here from Philadelphia, and state that the 207
to
New
come York
""
"
"
THE ART OF CROSS-EXAMINATION doctors
who have
who
ah'eady testified against you, and
swore they had had seventy-five similar cases in their
own
mistaken
are
practice,
conclusions
Wit7iess (embarrassed I
in
and
diagnoses
their
?
and
in a
low
tone).
"
Yes,
sir,
am." "
Counsel.
You
never heard of Helen Potts until a
year after her death, did you Witness.
"
No,
Counsel.
"
You
sir."
"
Counsel.
Yes,
for
.?
sir."
Are you
one experience
physicians say
and observed her symptoms
eleven hours before death "
New York
heard these
that they attended her
Witness.
" ?
willing to
go on record, with your
twenty years, as coming here and
in
saying that you do not believe our doctors can
tell
morphine poisoning when they see \\.V Witness (sheepishly). "
Counsel.
symptoms
of
positiveness
Witness. Cotinsel.
You have
"
Yes,
sir."
stated,
have you
not, that the
morphine poisoning cannot be
told with
?
" "
Yes,
sir."
You
said
you based that opinion upon
your own experience, and
it
now
turns out you
have
seen but one case in twenty years." Witness.
" I also
base
it
upon
my
reading."
Counsel (becoming almost contemptuous " Is
in
your reading confined to your own book 208
manner). ?
"
THE CROSS-KXAMINATION OV Wtt7tess (excitedly).
Counsel (calmly).
"
"
No,
But
sir;
I
your own book the results
I
DR.
say no."
jjresume you embodied in of
your reading, did you
not.?"
Witfiess (a It
apprehensively).
little
must be explained here
"
I
tried to, sir."
that the attending physi-
cians had said that "the pupils of the
Potts to
were contracted to a pin-point, so much so as
be
present
the
dilated
that this
it
coma
from of
symmetrically
symptom was the one invariably
coma from morphine
in
tingruished
and
unrecognizable,
practically
contracted —
in
eyes of Helen
all
poisoning, and
dis-
other forms of death, whereas
kidney disease one pupil would be
and the other contracted
they would be un-
;
symmetrical.
Counsel (continuing).
"
Allow me
to read to
you from
your own book on page i66, where you say (reading),
— that where they are not symmetrically contracted — proof that a case not one narcotism — or moiphine soning — but Professor Taylor has recorded a case of '
I
have thought that inequality of the pupils
is,
'
'
is
of
is
poi-
'
'
morphine poisoning in which //[the unsymmetrical contraction of the pupils] occurred'
intended
Do
I
read
it
as
you
it ?
Witness.
"Yes,
sir."
So uiitilyou heard of the case that Professor Taylor reported, you had always supposed symmetriCounsel.
"
cal contraction of the pupils of the eyes to be the distiti-
o
209
THE ART OF CROSS-EXAMINATION guishiiig sy77iptom of morphhte poiso7ii7ig, this that you base your stateme^it that the
tors could not tell
they see it ?
Witness
realizing the point).
far enough patient had one glass
that case
Witness
(in
Counsel.
"
ment
of
go back
resumed
It is
sir."
you
investigate
that Professor Taylor s
" I
have no memory of to
it."
be the case here.
to Philadelphia, sir."
his seat
throughout the audience
and the witness walked out
It is difficult
to reproduce in print
this occurrence,
but with the
retire-
witness the defendant's case suffered a
this
which
it
never recovered.
interesting to note that within a year of Harris's
conviction, Dr.
Buchanan was indicted and
— wife poisoning by the use
tried for a
of
morphine.
appeared in evidence at Dr. Buchanan's
trial that,
similar offence It
doc-
^
of laughter
room.
made by
collapse from
"
That has been proved
better
of the court
to discover
eye ?
"Yes,
Well, sir, did
"
confusion).
There were roars
the effect
York
on
morphine poisoning positively when
Counsel (very loudly).
as counsel
New
it is
"
(little
You would
and
during the Harris cal witnesses,
trial
and the examination
of the
medi-
presumably the witness whose examination
has been given above, Buchanan had said to his mess^
The
reports of six thousaad cases of
amined by the prosecution
morphine poisoning had been ex-
in this case before trial,
reported by Professor Taylor.
2IO
and among them the case
THE CROSS-EXAMINATION OF "
mates that to
mix
Harris was a
his drugs.
morphine,
it
If
fool,
he had put a
DR.
little
atropine with his
would have dilated the pupil
of his victim's eyes,
how
he didn't know
one
of at least
and no doctor could have deposed
to
death by morphine."
When
Buchanan's case came up for
trial
it
was
covered that, although morphine had been found
dis-
in
the
stomach, blood, and intestines of his wife's body, the pupils of the eyes
were not symmetrically contracted.
tive diagnosis of her case could
No
posi-
be made by the attending
physicians until the continued chemical examination of the contents of the body disclosed indisputable evidence
Buchanan had
of atropine (belladonna).
disclosures in the Harris
done
how
in order to cheat science.
his that put the chemists
by the
but had made the
trial,
mistake of telling his friends
profited
It
fatal
it
could have been
was
this statement of
on their guard, and resulted
in
Buchanan's conviction and subsequent execution. Carlyle Harris maintained his innocence even after the
Court tion,
of
Appeals had unanimously sustained his convic-
and even as he calmly took
his seat in the electric
chair.
The most famous English the Harris and
poison case comparable to
Buchanan cases was
that of the celebrated
William Palmer, also a physician by profession, who soned his companion by the use of strychnine to obtain his trial
is
money and
in order
collect his racing bets.
referred to in detail in another chapter.
211
poi-
The
THE ART OF CROSS-EXAMINATION Palmer, like Harris and Buchanan, maintained a stoical
demeanor throughout awaiting execution.
and confinement
his trial
The morning
ate his eggs at breakfast as
if
he was led to the gallows,
in the
name
those days, reply.
the
of
was demanded
him
He made
no
guilty.
put, "
William Palmer,
Almighty God, are you innocent or "
of
in
Just as the white cap a low breath,
of his execution he
God, as was the custom in England
Again the question was
name
it
he was innocent or
if
jail,
he were going on a journey.
When
of
in
came over
Guilty,"
and the
crash.
212
his face
bolts
in
guilty.?"
he murmured in
were drawn with a
CHAPTER
XIII
THE BELLEVUE HOSPITAL CASE
CHAPTER
XIII
THE BELLEVUE HOSPITAL CASE
On December York World an newspaper
New
1900, there appeared in the
15,
article written
reporter, in
by Thomas
which he claimed
to
J.
Minnock, a
have been an
eye-witness to the shocking brutality of certain nurses in
attendance at the Insane Pavilion
which resulted its
inmates, a
man had
of-
Bellevue Hospital,
by strangulation,
in the death,
Frenchman named
Hilliard.
one of
of
This French-
arrived at the hospital at about four o'clock in
the afternoon of Tuesday,
December
11.
He was
suffer-
ing from alcoholic mania, but was apparently otherwise in
Twenty-six hours
normal physical condition.
or on Wednesday,
December
12,
he died.
An
later,
autopsy
was performed which disclosed several bruises on the forehead, arm, hand, and shoulder, three broken ribs and a broken hyoid bone in the neck (which supports the tongue), and a suffusion of blood or haemorrhage sides of the windpipe.
the cause of death, as
The
coroner's physician reported
shown by the autopsy,
gulation.
The newspaper
have been
in
on both
reporter,
to be stran-
Minnock, claimed to
Bellevue at the time, feigning insanity for
newspaper purposes
;
and upon 215
his discharge
from the
THE ART OF CROSS-EXAMINATION Frenchman
hospital he stated that he had seen the
stran-
gled to death by the nurses in charge of the Pavilion by the use of a sheet tightly twisted around the insane man's
neck.
The language used
ten by
Minnock
in the
newspaper
to describe the occurrences preceding the
Frenchman's death was as follows "
—
:
At supper time on Wednesday
Frenchman, Mr, nurse,
him.
for
Hilliard
the table, and the other two nurses, off
when
evening,
the
Hilliard, refused to eat his supper, the
Davis, started
headed him
articles writ-
and held him
;
around
ran
Dean and
Marshall,
they forced him
down on
a bench, Davis called for a sheet, one of the other two, I
do not remember which, brought
it
around Hilliard's neck
it,
and Davis drew
Dean was behind
like a rope.
the bench on which Hilliard had been pulled back
;
he
gathered up the loose ends of the sheet and pulled the linen tight around
Hilliard's
twist the folds in his hand.
read of the garrote
;
I
neck, then he began to I
was
have seen pictures
are executed in Spanish countries
before
my
;
I
of
how
all
his
began
to
but
looked on as
persons
realized that here, to
be performed.
round
of the sheet in his hands,
The dying man's it made me sockets
force.
bulge from their if
;
fascinated.
hands down, can't you
? '
216
shouted Davis
eyes sick,
hands
Hilliard's
clutched frantically at the coils around his neck. his
have
I
he placed his knee against Hilliard's back
and exercised
I
;
was going
eyes, a strangle
Davis twisted the ends
and round
horrified.
'
Keep
in a rage.
;
THK HKI.LKVIJK IIOSIMTAL CASK Dean and
the
seized
Miirsliall
man's hands
helpless
slowly, remorselessly, Davis kept on twisting the sheet.
Milliard
began
to get black in the face; his
hanging
out.
Marshall got frightened.
getting black
! '
Davis
he said to Davis.
At
sheet was will
you
?
'
cried
choke you
will
began have
eat
Davis.
upon
was holding
I
A
it
Me
up.
began
eat,'
eat
he shouted, and he
head would
Milliard's
to get
Davis
black in the face
second time they got frightened, and Davis
Me
kept a firm grasp on the
some time
to
come
again asked him
to.
folds.
When
he would
if
untwisted the sheet, but
man was dying and
cried,
him
to death.'
'
then.
Well,
Me
make him
No.'
Davis jerked the
kneeled on him, but
eat or
still
Milliard
man
own
Davis
had just
thought the
will
I
I
choke
thought
was uncon-
to the floor
had the strangle hold with
knee giving him additional purchase. sheet until his
I
twisted and twisted until
he would break the man's neck. last.
last,
Davis twisted up the sheet again,
will
I
at
Milliard
eat. '
took Hilliard
It
he did
breath enough to whisper faintly,
scious at
Now
make you
will
his breast but for the fact that
eased up on the string. still
Well,
you do
until
'
No,' gasped the insane
'
to twist the sheet again.
fallen
again.
'
it.
The
little.
brought tight about the neck.
Davis was furious.
man. I
still
do
to like to
Hilliard got a litde breath, just a
last
is
out a couple
let
seem
of twists of the sheet, but did not
tongue was
Let up, he
*
Me
his
twisted the
fingers were sore, then
217
and
the three
THE ART OF CROSS-EXAMINATION nurses dragged the limp body to the bath-room, heaved
him
into the tub with his clothes on,
He was
cold water on him.
He was
dead by
and turned the
this time,
believe.
strangled to death, and the finishing touches
were put on when they had him on the
man
strong, healthy
The above
floor.
article
was weak and
The
story,
and
big,
appeared
feeble."
morning Journal^
in the
a few days after the original publication
York World.
No
could have lived under that awful
Hilliard
strangling.
up the
I
in
the
New
other local papers immediately took
it is
easy to imagine the pitch to which
the public excitement and indignation were aroused.
The
three nurses in charge of the pavilion at the time of Hilliard's
death were immediately indicted for manslaughter,
and the head nurse, Jesse R. Davis, was promptly put on trial in
the Court of General Sessions, before Mr. Justice
Cowing and
a "special jury."
The
trial
lasted three
weeks, and after deliberating five hours upon their verdict,
the jury acquitted the prisoner.
The
intense interest taken in the case, not only by the
public, but
by the medical profession, was increased by
the fact that for the this
first
time in the criminal courts of
country two inmates of the insane pavilion, them-
selves admittedly insane, were called
by the prosecution,
and sworn and accepted by the court
as witnesses against
the prisoner.
.
One of
a form of insanity
general paresis.
these witnesses was suffering from
known as With the
paranoia, and the other from
exception of the two insane
218
THE I3ELLEVUE HOSPJIAL CASE witnesses and the medical testimony founded upon the autopsy, there was no direct evidence on which to con-
statement of the newspaper
vict the prisoner but the
Minnock.
reporter,
on behalf
He
was the one sane witness called
of the prosecution,
who was an
eye-witness to
the occurrence, and the issues in the case gradually nar-
rowed down to a question
of veracity
between the news-
paper reporter and the accused prisoner, the testimony of
each
of
these
witnesses
being
corroborated
or
contradicted on one side or the other by various other witnesses. If
Minnock's testimony was credited by the
prisoner's contradiction
whatever, and
the
jury, the
would naturally have no
public
prejudice,
effect
indignation,
and
excitement ran so high that the jury were only too ready
and willing to accept the newspaper account action.
became
The
cross-examination of
of the utmost importance.
of the trans-
Minnock, It
was
therefore,
essential that
the effect of his testimony should be broken, and counsel
having his cross-examination in charge had made the
most elaborate preparations
for the task.
Extracts from
the cross-examination are here given as illustrations of
many
of the suggestions
which have been discussed
in
previous chapters.
The
district attorney in
Franklin Pierce, Esq. jury he stated that he
charge of the prosecution was
In his opening address to the "
did not believe that ever in the
history of the state, or indeed of the country, had a jury
219
THE ART OF CROSS-EXAMINATION been called upon to decide such an important case as the
one on '
He
trial."
Hard Cash
'
—
continued
:
"
There
The
in this case.
no
is
fiction
— no
facts here surpass any-
The
thing that fiction has ever produced.
witnesses will
describe the most terrible treatment that was ever given to
No
an insane man.
them
They would appear
in a book.
monstrous that
writer of fiction could have put
so improbable and
manuscript would have been rejected
his
as soon as offered to a publisher."
When
the reporter, Minnock, stepped to the witness-
stand, the court
room was crowded, and
yet so intense
was the excitement that every word the witness uttered could be distinctly heard by everybody present.
gave his evidence
in chief clearly
no apparent motive but
and calmly, and with
to narrate correctly the details of
the crime he had seen committed. of his career
Any
would have regarded him
clever and apparently honest
keen memory and with
He
one unaware an unusually
as
and courageous man with a
just the slightest
touch of
gratifi-
cation at the important position he was holding in the
public eye in consequence of his having unearthed the atrocities per|3etrated in
our public hospitals.
His direct evidence was practically a repetition
newspaper
article already referred to,
much more
in
After questioning him for about an hour, the
detail.
district attorney sat
witness,
No
only
of his
if
you wish
down with
a confident
"
He
is
your
to cross-examine him."
one who har never experienced 220
it
can have the
THE BELLKVUK HOSPITAL CASE slightest appreciation of the nervous excitement attendant
on being
called
upon
to cross-examine the chief witness
in a case involving the life or liberty of a If
human
being.
Minnock withstood the cross-examination, the nurse young man
Davis, apparently a most worthy and refined
who had
just
graduated from the Mills Training School
for Nurses,
and about
young
would have to spend
lady,
years of his
The
life
to
be married to a most estimable
hard labor
at
first fifteen
at least the next
twenty
in state prison.
minutes of the cross-examination were
devoted to showing that the witness was a thoroughly educated man, twenty-five years of age, a graduate of Saint John's College, Fordham,
New
York, the Sacred
Heart Academy, the Francis Xavier, the stitution,
and had travelled extensively
The
America.
"
Mr. Minnock,
written the story of your
I
and published
life
hold the original article in
my
"It was not the story of
Counsel.
"
The
to be a history of
your
" It is
"
That
Witness.
Yes,
last
it
in
the
December }
my
life."
signed by you and purports
an imaginaiy stoiy dealing with hyp-
is,
it
dealt with facts."
you mean
fact in the history of "
—
life."
Fiction partly, but
Counsel.
and
article is
:
hand."
Witness.
notism.
Europe and
believe you have
Bridgeport Sunday Herald as recently as
Witness.
in
Lasalle In-
cross-examination then proceeded
Counsel (amiably).
I
De
your
sir."
221
to say "
life
}
you mixed
fiction
"
"
THE ART OF CROSS-EXAMINATION "
Counsel. fiction to
In other words, you dressed up facts with
make them more
interesting
?
" Precisely."
Witness.
"
Counsel.
When
in this article
you wrote that
at the
age of twelve you ran away with a circus, was that dressed
upr "
Witness.
Yes,
sir."
Counsel.
" It
Wit7iess.
"
No,
Counsel.
"
When
was not true
?
sir."
you said that you continued with and went with
this circus for over a year,
it
to
Belgium,
there was a particle of truth in that because you did, as fact,
as a public
clown
Witness. Counsel.
"
"
to Belgium, but not with the circus
go
a matter of
is
;
Yes,
that the idea
sir."
So there was some
this point with the other matter?
Witness.
"
Counsel.
"
" ?
Yes,
little
truth mixed in at
"
sir."
When
you wrote that you were introduced
in Belgium, at the Hospital General, to Charcot, the cele-
brated Parisian hypnotist, was there some truth in that?" Witness. Counsel.
" "
No,
sir."
You knew
that Charcot
was one
originators of hypnotism in France, didn't
Witness.
" I
knew
that he
was one
you
of the
of
the
" ?
original
hypnotists."
Counsel.
"
How
did you
paper history of your
life
come that
222
to state in the news-
you were introduced
to
""
"
THE HKLLKVUK HOSPITAL CASK Charcot true
General at Paris
at the Hospital
that
if
"
Witness.
"
Counsel.
While there Oh,
1
met a Charcot."
see."
I
Witness.
"
But not the original Charcot."
Counsel.
"
Which Charcot
Witness.
"
name
A
woman.
of Charcot, "
Counsel.
So
did you meet
claiming to be that
it
" ?
She was a lady assuming the
Madame
when you wrote
Charcot."
in this article that
you had met Charcot, you intended people that
was not
?
to
understand
was the celebrated Professor Charcot, and
partly true, because there
Charcot
whom "
Witness.
Counsel
you had
it
was
was a woman by the name
really
met }
of
"
Precisely."
(quietly).
"
That
is
to say, there
was some
truth in it.?"
Witness.
"
Yes,
Counsel.
"
When
sir."
in that article
you said that Charcot
taught you to stand pain, was there any truth in Witness.
"No."
Cou7tsel.
"
pain
Did you
as a matter of fact learn to stand
.?
Witness. Counsel.
"No." "
When
you
said in this article that
began by sticking pins and knives into you little,
all
that.?
Charcot little
by
so as to accustom you to standing pain, was that
fiction.?"
Witness.
"
Yes,
sir."
223
THE ART OF CROSS-EXAMINATION When
"
Counsel.
you wrote that Charcot taught you
your respirations
to reduce
make your body "
Witness.
insensible to pain,
to
was that
"
go further
Counsellor,
will
I
founded upon
it
?
fact.
I
will allow
not allow
The
in this line of inquiry.
himself says his article was almost entirely of
fiction
to
"
Purely imagination."
Court (interrupting).
you
two a minute, so as
to
witness
fiction,
some
you the greatest
latitude in a proper way, but not in this direction."
"Your Honor does
Counsel.
" I
Court.
"
Counsel.
paper the
do not think
by the witness, and published
article written
morning Journal. mostly
fiction.
It
the claim of
is
was a mixture
The
that the history of his
ago,
do."
I
This prosecution was started by a news-
that the newspaper article tion,
not catch the point."
the defence
of fact
and
life,
life,
published but a few months
was a mixture
fiction.
Would
from the
lips of the
it
it
of fact
and
fiction,
his-
mostly
not be instructive to the jury to learn witness himself
up the pretended history
draw from
fic-
witness has already admitted
and written and signed by himself and sold as a
tory of his
in
of his
some inference
as
how
far
he dressed
own life, that they may to how far he has like-
wise dressed up the article which was the origin of this prosecution Court.
" ?
" I shall
grant you the greatest latitude in ex-
amination of the witness in regard to the newspaper article
which he published
in
224
regard to this case, but
I
"
THE BELLEVUE HOSPITAL CASE exclude
all
questions relating to the witness's newspaper
own life." Did you not have
history of his
Counsel.
"
and published
newspapers
in the
photographed
yourself
connection with the
in
with your mouth and lips and ears
history of your
life,
sewed
you were insensible to pain
up, while
Court.
"
Counsel.
?
Question excluded." "
Did you not publish a picture
in connection with the pretended
of yourself
history of your
life,
representing yourself upon a cross, spiked hand and foot,
but insensible to pain, in consequence of the instruction
you had received from Professor Charcot ? Court.
"
Question excluded." " I
Counsel.
"
offer these pictures
and
articles in evi-
dence."
Court (roughly). "
Counsel.
"
Excluded."
In the article
you published
in the
New
York Journal, wherein you described the occurrences
now
the present case, which you have just
related
in
upon
the witness-stand, did you there have yourself represented as in the position of the insane patient, with a sheet
twisted around your neck, and held by the hands of the hospital nurse
Witness. the picture.
who looked
who was
" I
wrote the
The like
strangling you to death article,
but
I
picture was posed for
" }
did not pose for
by some one
else
me."
Counsel (stepping up to the witness and handing him the
newspaper p
article).
"
Are not these words under 225
""
"
"
THE ART OF CROSS-EXAMINATION your picture,
'
This
how
is
I
saw
it
done,
Minnock,' a facsimile of your handwriting Witness. Counsel.
"
"
Yes,
sir, it is
my
Thomas
?
handwriting."
Referring to the history of your Hfe again
how many imaginary
articles
on the subject have you
written for the newspapers throughout the country
Witness. Counsel.
" "
You have
been redressed, Counsel. it
to the
Court.
?
Each time you signed the for
article
and sold
?
Excluded." of
loud voice, turning to the audience)o
manner, and " Is
gentleman
Witness. Counsel.
" I "
in a
the chief
Bridgeport, Connecticut, in the court
Mr. Minnock, do you
(Turning to the witness.) this
has since
money, did you not
Counsel (with a sudden change
police of
It
story.
that's all."
newspaper "
New York
put several articles in
"
was only the original
" It
"
?
One."
papers, have you not Wit7iess.
J.
"
of
room }
know
?
do."
Tell
the
jury
when you
made
his
in the
At-
with
my
first
acquaintance." Witness. lantic
" It
Hotel,
was when in
I
Bridgeport,
was arrested Connecticut,
wife."
Counsel.
Witness. Counsel.
" "
"
Was Yes,
she your wife at the time
" ?
sir."
She was but
sixteen years old
226
.?
THE Witness.
"
Counsel.
"
were trying her to
Seventeen,
You were drug
to
New
bellevup: hospital case
arrested on the
to be as
I
(hesitating).
trial
on
"
"You were A.
F.
attorney,
" I
was arrested."
You know have stated } Answer
Counsel.
and kidnap
it ?
"
(sharply).
Witness
ground that you
"
you deny
Wihtess (doggedly).
Counsel
guess."
this sixteen-year-old girl
Do
York.
I
Yes,
the cause of the arrest I
sir."
by the prosecuting
permitted
Bartlett,
"
yes or no
be
to
discharged
your promise to leave the
state,
without
were you
not.?" " I
Witness.
Counsel
" I
Witness.
Counsel
upon
don't
Do
"
you deny
it }
do."
"
that occasion
Counsel
of that."
"
Did you have another young man with you
"
}
" I did.
Witness.
remember anything
Was
"
A
college chum."
he also married to this sixteen-year-
old girl.?"
Witness (no answer).
Counsel (pointedly this girl also
Witness. Counsel.
me
at witness).
"
Was
he married
.?
"
"
Why, no." You say you were married
to her.
Give
the date of your marriage."
Witness Counsel.
to
"
(hesitating). "
"
How many
I
don't
remember the
years ago was 227
" it
.?
date."
THE ART OF CROSS-EXAMINATION Witness.
"
Counsel.
How many
Witness.
" I
Counsel.
"
years ago
it
Wit?iess.
years ago was
" it ?
couldn't say."
What
was " I
"
Counsel.
don't remember."
" I
is
your best memory as to
how many
" ?
can't recollect."
Try
recollect
to
about
when you were
married."
Witness.
was married
" I
marriage and
twice, civil
church marriage."
When
am
" I
Counsel.
Miss
about
talking
Sadie
Cook.
were you married to Sadie Cook, and where
the marriage recorded
Witness.
" I tell
"
Counsel.
is
" ?
you
I
don't remember."
Try."
might be
" It
five or six or
seven or ten
Then you cannot tell within time when you were married, and you
five years of
Witness.
years ago." "
Counsel.
the
twenty-five years old
Witness.
" I
Counsel.
"
Witness.
" I
Counsel.
"
married at
don't think
fifteen years of
You know, do you
know nothing "
Do
" ?
Bridgeport that
" ?
of the kind."
you deny
228
your marriage
not, that
after this arrest in
(resolutely).
age
was."
I
have been speaking to you about
Counsel
only
}
Were you
" I
now
cannot."
was several years
Witness.
^re
"
" it ?
I
THE bellp:vue hospital case Witness (hesitating).
I
do not deny
it."
])urports to be the
your marriage, three years ago.
certificate of
correct
Well, no,
hand you now what
" I
Counsel.
"
Is the
date
" }
"
Wthiess.
"
Counsel.
I
never saw
Does
it
the certificate correctly state the time
and place and circumstances " I
Witness.
ground that
The
before."
refuse
to
of
your marriage
answer the question on the
would incriminate
it
" }
my
wife."
theory on which the defence was being
made
was that the witness, Minnock, had manufactured the story which he had printed in the paper, and later swore to before the
grand jury and
his cross-examination of to so,
was
to
at the trial.
The
show
was the kind
that he
effort in
man who would manufacture such a story and sell it the newspapers, and afterward, when compelled to do swear to
it
in court.
Counsel next called the witness's attention to facts tending to
show
that he
to adultery in divorce cases, first
on one
side,
at cards
had been an eye-witness
and on both sides
at
one time a private detective.
he had robbed and blackmailed and cheated
were called from the audience, one
after another,
and he was confronted with questions referring charges, accusers.
all
of them,
then on the other, in the same case,
and that he had been
Men whom
many
of
The
which he denied
in the
to these
presence of his
presiding judge having stated
to
the
counsel in the hearing of the witness that although he 229
THE ART OF CROSS-EXAMINATION allowed the witness to be brought face to face with his alleged accusers, yet he would allow no contradictions
on these
of the witness
collateral
Minnock's
matters,
former defiant demeanor immediately returned.
The
next interrogatories put to the witness developed
the fact that, feigning insanity, he had allowed himself to be taken to Bellevue with the
ferred to Ward's
Island,
hope
being trans-
of
with the intention of finally
being discharged as cured, and then writing sensational
newspaper
articles
regarding what he had seen while an
inmate of the public insane asylums; that
Bellevue
in
Hospital he had been detected as a malingerer by one of
the attending physicians, Dr. Fitch, and had been
taken before a police magistrate where he had stated in
open court that he had found everything
in
"far better than he had
and that he
had
"
expected to find
it,"
no complaint to make and nothing to
The
witness's
Bellevue
criticise."
mind was then taken from the main
sub-
ject by questions concerning the various conversations
had with the different nurses while of
which conversations he denied.
were put
in
in the asylum, all
The
such a way as to admit of a
answer only.
interrogatories "
yes
"
" or " no
Gradually coming nearer to the point
desired to be made, the following questions were asked:
Counsel.
"
—
Did the nurse Gordon ask you why you
were willing to submit to confinement as an insane patient,
and did you reply that you were a newspaper
man and under
contract with a
230
Sunday paper
to write
"
THE BELLEVUE HOSPITAL CASE up the methods
repudiated the contract Witness. Counsel.
but that the paper
of the asylum, ?
"No."
Or words
"
WiUicss.
"No."
Counsel.
" I
am
"
to that effect
?
subsequent to
referring to a time
your discharge from the asylum, and
after
tell
the nurse
be able to write an Wilness. Counsel.
" I
"
at
you had expected
to
you
square with them
Counsel.
which you could get $\^o}
Did the nurse say
will try to write
" I
"
article for
that
"
did not."
this time, didn't
Witness.
Gordon
you had
Did you,
returned to take away your belongings. that time,
liad
"
And
.? '
to you,
'
You
did you reply,
up something and see
if
got fooled '
I
Yes, but
I
can't get
"
! '
memory
have no
Or words
of
it."
to that effect
" .?
Witness. "I did not." All that preceded had served only as a veiled introduction to the next important question. "
Cou7tsel (quietly).
did you Sfot
At
that time, as a matter of fact,
know anything you
back
to the
Herald
could write about
oflfice }
Witness.
"
/ knew
Counsel
"
Did you know
idea,
there
was nothing at
to
writer
that time, or have
any
what you would write when you got out ?
Did
I
was nothing
to
Witness. there
when you
"
"
at that
time
writer 231
know
.?
Why, I knew
"
"
THE ART OF CROSS-EXAMINATION Counsel (walking forward and pointing excitedly witness).
"
at the
Although you had seen a man choked
death with a sheet on
Wednesday
to
you knew on
night,
Friday morning that there was nothing you could write about
?
Witness
" I
(hesitating).
didn't
know
they had killed
the man."
Counsel.
"
Although you had seen the patient
fall
un-
conscious several times to the floor after having been
choked with the sheet twisted around there was nothing to write about
Witness.
" I
knew
it
charity commissioner and
Counsel.
*'
tell
duty to go and see the
him about
that."
But you were a newspaper reporter
asylum, for the purpose of writing up an
you want that
to take
"
in the
article.
Do
back what you said a moment ago
you knew there was nothing
Witness.
you knew
?
my
was
his neck,
Certainly not.
I
about?"
to write
did not
—
the
man
morning
after
know
was dead." Counsel.
"
Did you not
testify that the
you had seen the patient choked into unconsciousness,
you heard the nurse the autopsy had been
made
Witness (sheepishly.) contract for with the Connsel.
" Is it
time you were
up the morgue
call
"
to
inquire
if
" .''
Well, the story that
Herald was
I
had the
cancelled."
not a fact that within four hours of the
finally
discharged from the hospital on
Saturday afternoon, you read the newspaper account of 232
"
THE
hospital case
bp:llb:vuk
the autopsy, and then immediately wrote your story of this i)atient strangled to
having seen it
for sale to the
Witness.
"
Counsel.
"
That
You
is
"
to
yes, sir."
;
knew
him
"
was your duty
found out through reading
I
killed."
you went
to the
World, and offered
story in which you describe the
was
?
of
And you
"
the time you
autopsy
way
Milliard
"Yes."
Witness.
Counsel
go
him what you had
tell
them the killed
to
.?
man was
Instead,
it
"
No, not after
the autopsy that the
Counsel
right
say you
Did you go
Witness.
York World?
commissioner and
to the charity
seen.
New
death and offered
"
read
did this within three or four hours
newspaper account
the
of
the
" ?
"
Witness.
Counsel
Yes."
"The
story unless you
it
World
in the
form
refused of
an
affidavit,
"Yes." "
Did you put
it
in the
form
of
an
affidavit.?"
"Yes."
Witness.
"
And
that
was the very night that you were
discharged from the hospital
" ?
"Yes."
Witness.
Counsel "Every occurrence was then fresh mind, was
your
?
Witness.
Counsel.
would put
the
of
"
did they not
Counsel.
editors
it
not
" ?
233
in
your
""
THE ART OF CROSS-EXAMINATION
in
Wihtess
(hesitating).
Counsel.
"
Were
"What?"
the occurrences of the hospital fresh
your mind at the time Witness.
"
?
Well, not any fresher then than they are
now." Counsel. Wit7iess.
*'
"
As
now 1
fresh as
Yes,
"
sir."
Counsel (pausing, looking among his papers, selecting
one and walking up to the witness, handing "
Take
to the
this affidavit,
to him).
made that Friday night, and sold
World ; show me where
a word in
it
Frenchman with
a
there
about Davis having strangled the sheet, the
it
way you have described
is
here to-day to this
it
jury." "
No,
not necessary for
me
Witness (refusing paper). there.
It is
I
don't think that
to look
Counsel {^Q)\x\aw^. "Don't think it is
not there, do you not
Witness (nervously). Counsel.
"
Had you
"
it
You know
I
it is
over."
that
?
Yes,
sir
forgotten
it is
;
it
not there."
when you made
that
affidavit.?"
Witness.
"
Yes,
sir."
Cownsel (loudly).
"
You had
forgotten
three days before you had seen a
man
it,
although only
strangled in your
presence, with a sheet twisted around his throat, and
had seen him ten
it
fall lifeless
when you
affidavit
about
it
upon the
floor;
you had forgot-
described the incident and to the
World 234
V
made
the
THE
BELr.P:VUK HOSPI'I "
Wilness (hesitating). lieve that
Counsel.
affidavits.
"Answer my
Minnock.
questions, Mr.
there any doubt that you had forgotten
made
the
Witness.
"
I
had forgotten
Counsel (abruptly). Witness.
World?
affidavit to the
first
" I
be-
I
the second affidavit."
in
is
made two
1
CASFC
AI>
"
when you
it
"
it."
When
recollected
Is
did you recollect
when
it
made
I
" }
the second
affidavit before the coroner."
Cou7tsel.
Witness.
"
And when
" It
did you
make
that
" .-*
was a few days afterward, probably the
next day or two."
Counsel (looking
up
among "
to the witness).
his papers,
and again walking
Please take the coroner's affidavit
and point out to the jury where there
is
a word about
a sheet having been used to strangle this man."
Witness (refusing paper). Counsel.
Witness Cotinsel.
" Is it (still
"
there
Witness Counsel.
"
Read
it,
read " I
Had you
Do
it
may
not be there."
}
it
" I
don't know."
carefully."
don't see anything about
forgotten
(in confusion). "
Well,
refusing paper).
Witness (reading). Counsel.
"
"
you want
" I
it
at that time as
certainly
it."
well.'*"
must have."
this jury to believe that, hav-
ing witnessed this horrible scene which you have described,
you immediately forgot
occasions
it,
and on two
different
when you were narrating under oath what
took place in that hospital, you forgot to mention 235
"
it }
"
THE ART OF CROSS-EXAMINATION Witness.
"It escaped
You have
"
Counsel.
Witness. Counsel.
"
Yes,
" "
Yes,
Counsel.
"
But
memory then
that
sir."
" ?
sir."
incident
sheet
this
" It
your
escaped
did not." in his
hands the stenographer's min-
Do
"
the coroner's inquest).
you
in
?
Counsel (taking utes of
witness before
?
Before the coroner
Witness.
Witness.
testified as a "
have you not
this case,
my memory."
you not
recollect
two hours before the coroner with-
testified for
out mentioning the sheet incident, and were then ex-
cused and were absent from the court for several days before you returned and gave the details of the sheet incident
" }
Witness. Counsel.
"
Yes,
sir
Why
"
;
"
is
correct."
did you not give an account of the
sheet incident on the Witness.
that
Well,
first
it
day
escaped
of
your testimony
my memory
I
;
" }
forgot
it."
Counsel.
Do you
"
recollect, before
beginning your
testimony before the coroner, you asked to look at the
you had made
affidavit that
Witness. refresh
my
Counsel.
"
Yes,
I
for the
had been
World ?
sick,
and
"
I
wanted
to
memory." "
Do
you mean that
this
scene that you
have described so glibly to-day had faded out 236
of
your
THK liKLLKVUK mind
and you wanted your
then,
your recollection "
Wihiess.
my
refresh
Counsel.
lAL CASK
IIOSIM
to
affidavit
refresh
" ?
No,
it
had not faded.
I
merely wanted
to
recollection." "
Was
made
not rather that you had
it
u])
the story in your affidavit, and you wanted the affidavit
your recollection as to the story you had
refresh
to
manufactured
" }
"No,
Wit7iess.
The purpose
that
sir;
not true."
is
of these questions,
the answers upon the argument,
ing extract from the "
My
point
summing up
this,
is
:
my
shown by the
—
:
gentlemen
an unanswerable one in torney
is
and the use made
of
the jury, and
when he went to World ; if he also
sell
article to the
forgot
to the coroner ;
if
he
his first
two days afterward to still
forgot
it
is
judgment, Mr. District At-
sheet incident
affidavit
follow-
Minnock, fresh from the asylum, forgot
If
of
newspaper
when he went make his second it
two weeks
it
this
later
when,
at
the inquest, he testified for two hours, without mention-
ing
and only
recollected
it
two days afterward, then there
is
it,
first
be drawn, and that
is,
could not forget
if he
important feature
he was
it is
fliai lie
had
this: he
when he was
but one inference to
never saw ever seen
it,
on.'
He
because he
And
it /
the
was a newspaper reporter;
there, as the district attorney says,
what was going
recalled
'
to
observe
says that he stood by in that
part of the room, pretending to take
237
away
the dishes in
!
THE ART OF CROSS-EXAMINATION He was
order to see what was going on.
Now
only sane nian there.
because
men
the insane
seen
it.
Let
me
put
see the point
again.
it
man
if it
It is
?
not in
sells
to the
He makes it,
still
and even
later,
morning Wo7^ld
when he makes
afterward
is
did not take place,
have
Can you answer it ? mortal mind to believe
it.
Forget
when he
it
the night he leaves the asylum and
his article
it
it
could have seen such a transaction as he
describes and ever have forgotten writes
it,
called here as witnesses could not
Do you
that this
he did not see
if
did not take place, and
it
sane, the
Forget
!
it
a second important
two days afifidavit
another statement, and does not mention
testifies at
and leaves
it
the coroner's inquest two weeks
Can
out.
the
human mind draw any
other inference from these facts than that he never saw it
— because
ever seen
he could not have forgotten If
it ?
he never saw
it, it
He
was on the
spot,
that
went
the very purpose
if
on,
for
sane,
it
if
he had
did not take place.
and watching everything
of reporting
Now
it.
this sheet incident did not take place, the insane
could not have seen
Minnock, but
it.
men
This disposes not only
of
of all the testimony in the People's case.
In order to say by your verdict that that sheet incident
took place, you have got to find something that trary to
all
human
experience
;
that
is,
is
con-
that this man,
Minnock, having seen the horrible strangling with the sheet, as
he described, could possibly have immediately
forgotten
it."
238
THE BELLEVUE HOSPITAL CASE The contents of the two World and the coroner were witness was
he
as
was
to
the the
asked what the occurrence really was
first
now remembered
attention
made
next taken up, and
affidavits
After
it.
what he said
his
answers, his
and upon the differences being made apparent, he was asked whether what he then swore to, or what he now swore to,
called to
was the actual
what he remembered
remember the supper
you
"
Witness. Cotmsel.
"
"
Co7uisel.
"
up and was Witness. Counsel.
"
Counsel
" "
the condition of the
after
sir."
But
in
your
affidavit
Well, yes
;
Cotmsel.
Frenchman
he had been walk-
you
state
Is that true
that
he
" }
he did seem to be feeble."
But you said a moment ago that he warmed right at supper time."
Oh, you Well,
I
just led
me
into that."
won't lead you into anything more. to the table."
Well, slowly."
Do
you remember what you said
"
" I "
affidavit.
he as gay and chipper as when
.?
Witness,
he was trying to
?
Yes,
all
"
if
"
how he walked
Witness.
affidavit
have seen, or
to be very feeble at supper.
Wilitess.
Tell us
he was now testifying from
had warmed up
ing around awhile "
if
he made them up in the
facts as
said that he
seemed
to
What was time ? Was
Counsel. at
and
fact;
in his affidavits,
certainly do."
What
did you say
239
" }
in the
"
THE ART OF CROSS-EXAMINATION Witness. Co2inseL affidavit
" I
"
said he
walked
Are you sure
about
Witness.
" I
Counsel.
"
that
how he walked
am
The
in a feeble condition."
you
?
not sure." sheet
which you have
incident,
what hour on Wednes-
}
About
"
"
six o'clock."
Previous to that time, during the afternoon,
had there been any violence shown toward him Witness.
de-
"
day afternoon
Co7C7isel.
"
at all
scribed so graphically, occurred at
Witness.
said anything in the
Yes
"
;
?
he was shoved down several times by
the nurses."
let
Cotcnsel.
"
Witness.
"
him
You mean
they
let
Yes, they thought
picked him up.
fall }
a very funny thing to
it
backward, and to
totter
"
him
They then
down.
fall
His knees seemed to be kind
bound, and he tottered back and
fell,
of muscle-
and they laughed.
This was somewhere around three o'clock in the
after-
noon." Counsel.
"
How many
swear that you saw him
fall
being picked up by the nurse, Witness. Counsel.
Witness.
" " "
Four or
five
And would Yes,
tering backward.
sir
;
over backward, and after let fall
again
" 1
times during the afternoon."
he always
fall
backward
" ?
he repeated the operation of
He would
totter
would lose his balance and would
The
Minnock, would you
times, Mr.
fall
about
five feet,
tot-
and
over backward."
witness was led on to describe in detail this pro240
THE HKIJ.KVUK HOSPITAL CASE cess fall
to
of
holding
and allowing him to
patient,
backward, and then picking him up again,
make
said
up the
the contrast
more
apjjarcnt with
order
what he had
on previous occasions and had evidently forgotten. " I
Counsel,
now
read to you from the stenographer's
minutes what you said on
your sworn
this subject in
testimony given at the coroner's inquest. asked,
'
Was
any.'
You were
And you
then asked
and you answered night.
'
?
Wednesday night,
o'clock on
'
:
No,
sir
if,
answered,
up
to
'
were
Wednesday I
didn't see
dinner time at
six
there had been any violence ;
;
no violence since Tuesday
There was nothing happened
until
W^ednesday
Now
what
to say as to these different statements,
both
supper time, somewhere about
have you
Y(ju
there any violence inflicted on
before dinner time
at
in
six o'clock.'
given under oath, one given at the coroner's inquest, and the other given here to-day
Witness.
" Well,
what
I
" ?
said about violence
may have
been omitted by the coroner's stenographer." Counsel.
"
But did you swear
to the
have just read to you before the coroner Witness.
" I
may
have, and
I
may
answers that
I
" ?
not have.
I
don't
know." Counsel.
" If
you swore before the coroner there was
no violence, and nothing happened after supper, did
Witness. Counsel.
Q
" I
"
you mean
to say
until
Wednesday
" it ?
don't remember."
After hearing read what you swore to at 241
"
THE ART OF CROSS-EXAMINATION the coroner's inquest, do you
what you have sworn the patient
let
fall
him up and laugh
maintain the truth of
still
to at this trial, as to seeing the nurse
backward four or
him
at
five times,
and pick
?
Witness.
" I
certainly do."
Counsel.
" I
again read you from the coroner's min-
utes
a
question
asked you by
Question by the coroner,
or stumble
? '
Answer,
have you to say to that Witness.
"
Counsel.
That
"
Did you
room
the office or the large fall
'
is
'
sir
himself.
any time while
at
in
asylum see HilHard
of the
No,
coroner
the
I
;
never
What
did.'
" t
correct."
Then what becomes
your statement
of
made to the jury but fifteen minutes ago, that you saw " him totter and fall backward several times } Witness.
" It
was brought out
later
on before the
coroner." "
Counsel.
Brought out
later
you the next question put Question, or run fall.'
'
away and
fall
at '
in
"
my
Well,
I
any time see him '
No,
to say to that
me
read to
try to
walk
never saw him
I
" }
must have put
affidavit,
Let
!
you before the coroner.
Answer,
?
What have you
Witness. tering
Did you
to
on
and omitted
about the
tot-
later before
the
in it
coroner."
At
the beginning of the cross-examination
it
had been
necessary for the counsel to fight with the Court over nearly every question asked
;
242
and question
after question
THE BELLEVUE HOSPITAL CASE was ruled
As
out.
the examination proceeded, however,
the Court began to change
The
the witness.
its
attitude entirely toward
presiding judge constantly frowned
on the witness, kept
his eyes riveted
broke out at this juncture: "Let
Minnock, once questions.
for
me
you are here
all,
you
If
upon him, and
caution you, Mr.
answer counsel's
answer them, say so
can't
can answer them, do so
to
and
;
if
finally
and
;
you have no
you
if
recollection,
say so." Witness.
"
Well,
cross-examining
your
me
Honor,
Mr.
very severely about
my
has
been
wife,
which
he has no right to do." "
Court.
You have no
right to bring that up.
He
has
a perfect right to cross-examine you."
Witness (losing his temper completely).
me
wouldn't dare to ask
knows I
that he
would break "
Court.
Answer
is
are
making a poor
of the court, or
You
exhibit of yourself.
sir."
memory at all Are you testifying from memory
don't seem to have any
about this transaction. as to
He
those questions outside.
under the protection
the questions,
Counsel.
That man
his neck."
You "
"
what you saw, or making up as you go along
" }
Witness (no answer). Counsel.
Which
is it.?"
Witness (doggedly). Counsel. affidavit
' :
" I
am
telling
what
I
saw."
Well, listen to this then. You said in your The blood was all over the floor. It was covered "
243
"
THE ART OF CROSS-EXAMINATION with Hilliard's blood, and the scrub
woman came
Tues-
day and Wednesday morning, and washed the blood away.' "
Is that right
Witness.
?
"
Yes,
sir."
Why, I understood you to say that you How didn't get up Wednesday morning until noon. could you see the scrub woman wash the blood Cotiusel.
away ?
"
"
Wiijiess.
"
They were
at the farther
end
of the hall.
I didn't see them They washed the whole pavilion. Wednesday morning; it was Tuesday morning I saw
them scrubbing." Counsel.
"
You seem
to
have forgotten that Hilliard,
the deceased, did not arrive at the pavilion until
afternoon at four o'clock. that
What have you
Tuesday
to
say to
?
Witness.
"
Well, there were other people
who got
beat-
ings besides him."
Then that is what you meant to refer to in your affidavit, when speaking of Hilliard's blood upon the Counsel.
floor.
You meant
Witness.
The
"
"
Yes
beatings of other people
sir
" }
— on Tuesday."
witness was then forced to testify to minor details,
which, within the knowledge of the defence, could be contradicted
by a dozen disinterested witnesses.
instance, as hearing the nurse Davis call
Such, for
up the morgue,
the morning after Hilliard was killed, at least a dozen
times on the telephone, and anxiously inquire what had 244
THE IJKLLKVUK been disclosed by the autopsy
no
direct telephonic
the
CASE
UOSPl'l Af. ;
whereas, in
fact,
there was
communication whatever between
morgue and the insane
pavilion
and the morgue
;
attendants were prepared to swear that no one had called
them up concerning the
Milliard autopsy, and that there
The
were no inquiries from any source.
made
to testify affirmatively to
minor
witness was next
facts that could be,
and were afterward, contradicted by Dr. Wildman, by Dr. Moore, by Dr. Fitch, by Justice Hogman, by night nurses Clancy and Gordon, by Mr. Dwyer, Mr. Hayes, Mr. Fayne,
by Gleason the Jackson the witnesses
By
registrar,
janitor,
who were
by Spencer the
and by several
He
and pale by
had begun
to flounder help-
contradicted himself constantly, became red
each answer, at times
turns, hesitated before
corrected his answers, at others was silent and
answer
at
own
of the state's
to be called later.
this time the witness
lessly.
by
electrician,
all.
At
made no
the expiration of four hours he
left
the witness-stand a thoroughly discredited, haggard, and
wretched object. following
The
day, but
he
court ordered
never was
him
seen
to return the
again
at
the
trial.
A
w^eek later, his foster-mother,
ness-chair by the defence,
handed
when
called to the wit-
to the
received that morning from her son,
judge a
who was
delphia (wdiich, however, was not allowed to be
in
letter
Phila-
shown
to
the jury) in which he wrote that he had shaken from his feet the dust of
New York 245
forever,
and would never
THE ART OF CROSS-EXAMINATION return
;
that he felt he had been ruined,
arrested for perjury that he life
might
anew.
in the
It
if
and would be
he came back, and requested money
travel far into the
West and commence
was altogether the most
experience of the writer.
246
tragic incident
CHAPTER XIV THE CROSS-EXAMINATION OF JEREMIAH SMITH BY SIR ALEXANDER COCKBURN IN THE WILLIAM PALMER CASE
CHAPTER XIV THE CROSS-EXAMINATION OF JEREMIAH SMITH BY SIR ALEXANDER COCKBURN IN THE WILLIAM PALMER CASE It
ney,
was the cross-examination
named Jeremiah Smith, by
Birmingham
of a
attor-
Sir Alexander Cockburn,
then Attorney-General and afterward Chief Justice of
England,
in the celebrated trial
taking the finally
life
of
turned the
of
William Palmer
John Parsons Cook by poison, in this closely contested
tide,
for
that case,
against the prisoner, and resulted in his conviction and execution.
An
observer of such long experience as Mr. " it
Justice Stephens said of this cross-examination that
was something to be heard and seen, but incapable
of
being described."
William Palmer years old.
He
at the
time of his
trial
was thirty-one
was a physician by profession, but had
for several years prior to his trial given
practice of medicine
and had devoted
all
up the
active
his time to the
turf.
His victim, John Parsons Cook, was also a young
man
of decent family, originally intended for the pro-
fession of the law, but after inheriting
betook himself to the
turf.
He
some ^15,000,
also
kept race horses and
betted considerably, and in the course of his operations
249
THE ART OF CROSS-EXAMINATION At
became intimate with Palmer.
time of his
the
acquaintance with Cook, Palmer had become involved
through forging the name of his mother, a
financially
woman
of considerable property, as indorser of his notes.
These indorsements amounted
He had
and the
new
the death of
to
his brother's
life,
Upon
himself.
year's interim
off the first notes,
amount
of ^12,500,
at the rate of sixty per cent,
which
policies
brother's
his
but
had
and gave as
insurance of an equal amount
collateral, policies of
upon
of his wife
Upon
shortly issued fresh ones to the
them discounted
life
^13,000.
he had given
he was enabled to pay
his wife
of
policies of insurance
on the forged notes.
as collateral
sum
upon the
effected an insurance
for ^13,000,
to the
between the death
had been assigned
death, there
of his wife
being a
and brother,
the companies in which the insurance had been effected
declined to pay, and Palmer found himself confronted
with suits upon these forged notes and the exposure of his forgeries. It
was
for the
of Cook's
money and
his intimate
The
race horses that he took the
life
of
companion.
trial
London,
supposed intention of getting possession
May
was held 14,
in the Central
1856,
Lord Campbell
has ever since maintained the most learned
trials
Criminal
its
Court,
presiding, and
reputation as being one of
in the history of
the criminal
courts of the world.
H. D.
Traill, in
the English Illustrated Magazine,
250
CROSS-EXAMINATION OK JEREMIAH SMITH gives a most graphic account of the incidents during the
cross-examination of Jeremiah Smith, " '
was the riding that did
It
it,'
exclaimed one of the
greatest criminals of the century in extorted admiration of the skill with
which one
the greatest advocates of
of
the century had brought Justice in a winner by a short
head
one
in
of the century's greatest trials.
ander Cockburn tribute
is
said to have
many triumphs has
been more proud
of this
whom
from the eminent sportsman and poisoner
he hunted to the gallows
it
Sir Alex-
post,
than of any other of the
And
of his brilliant career.
undoubtedly
the ring of one of those utterances which
all
straight from the heart
and
attest their source
come
by taking
shape in the form of words most familiar to the speaker's
There
lips.
is
plenty of evidence to the critical attention
with which Mr. William Palmer observed the jockeyship of the attorney in driving that terribly exciting race for life.
"
There
six inches fact,
as a
exists,
or existed once, a slip of paper about
long by an inch broad
man might
—
such a
just
slip,
in
tear irregularly off the top of a
sheet of foolscap, which bears this calm and matter-offact legend,
prose. It is
'
one
I
more impressive than the most impassioned
suppose you think that
of those notes
last
witness did harm.'
which Palmer subscribed from
time to time and turned over to his counsel to read and, if
necessaiy, reply to.
the hand that wrote
it.
There Yet
it
251
is
no sign
of trembling in
was written
—
this
one
—
THE ART OF CROSS-EXAMINATION just at the close of Sir
Alexander Cockburn's memorable
cross-examination.
was the conviction
It
when
section of the audience that
resumed
his seat, the halter
the attorney-general
was knotted around the neck
doubt that the doomed wretch read as
hastily
much
is little
in the face
and that the outward indifference
penned inquiry which he flung across
must have caused a "
There
be loosed.
of the prisoner too firmly to
of his counsel,
of the expert
silent
agony
of
of the
to
them
doubt and dread.
accustomed to
Palmer, of course, was not as well
observe the manners of the presiding judge as were the professional spectators of the scene, but
if
so,
he would
have drawn the worst possible augury from Lord Campbell's
the
trial
—a
form
always indicated opinion, "
him
increasing politeness to
his
of
after this incident in
demeanor toward
that
that
in
doom was
a prisoner which
distinguished
judge's
certain.
Yet the cross-examination
of
Mr. Smith, important
consequences are said to have been, might easily
as
its
be
qtwted as a very doubtful illustration of the value of
this formidable
engine for the extraction, or supposed
extraction, of the truth. " Its effect
upon the witness himself
left
nothing to
be desired from the point of view of the operator. abbreviation, in fact, can give the effect of ness's efforts to gain time,
and
it.
wit-
his distress as the various
answers were extorted from him by degrees, faintly traced in the report.
The
No
may be
His face was covered with
252
CROSS-EXAMINATION OF JKRKMIAH SMITH and the papers put into
sweat,
These papers,
rustled.
of
them
it
hands shook and
his
must be admitted, were some
of a sufficiently agitating character.
had had Walter
reluctance that he had
to confess with great
witnessed
assignment of a policy for ^13,000 by
the
William
to
Mr. Smith
who was
Palmer,
suspected, and
indeed as good as known, to have been guilty of murdering him
;
an insurance for ^10,000 on the
to effect of
he had had to confess that he wrote to an
Palmers
in receipt of
a
;/^i
week
life
of a
office
groom
as wages; he
had
been compelled to admit the self-impeachment of having tried, after
Walter Palmer's death,
give up her claim on the policy.
to get his
The
widow
to
was that
result
summing up, asked the jury whether they could believe a man who so disgraced himself, in the witness-box. The jury thought they couldn't, and they didn't. The witness, whose evidence was to the efLord Campbell,
in
Palmer was not
fect that
at his victim's bedside,
but some
miles awa}^ at a time when, on the theory of the prosecution,
he was substituting poisonous drugs for the
medicine supplied to the sick believed.
Yet
it
other evidence of
is
the doctor, was dis-
nevertheless tolerably certain
from
an unimpeachable kind that ferem,iah
Smith was speaking
The
man by
the truths is
taken
Report
of the
text of the cross-examination that follows
from the unabridged edition
of the
Times
"
Trial of William Palmer," containing the shorthand notes
taken from day to day, and published in 253
London
in 1856.
"
"
"
"
THE ART OF CROSS-EXAMINATION "
Attorney- General.
Are you
the gentleman
who took
Mr. Myattto Stafford Gaol?" " I
Smith.
am."
Have you known Palmer long ? have known him long and very intimately,
Attorney-General. " I
Smith.
"
and have been employed a good deal as an attorney by Palmer and
his family." "
Attorney-General.
you
to for
In December, 1854, did he apply
Walter Palmer,
to attest a proposal of his brother,
^13,000
the Solicitors
in
and General Insurance
Office?" " I
Smith.
document,
I
cannot recollect
Smith.
the
will let
me
see the
"
Will you swear that you were not
?
" I will
not swear either that
to for that purpose or that
see
you
will tell you."
Attorney-General. applied to
if
;
document,
I
was.
I
was not applied
I
you
If
my
recognize
shall
will let
me
writing at
once."
Attorney-General. to
by Palmer to
" I
Wales
was a large sum
who
?
Office
don't recollect."
Attorney- General.
it,
In January, 1855, were you applied
attest a proposal of his brother for ;^ 13,000
in the Prince of
Smith.
"
"Don't
for a
man
like
"
lived retired
?
Oh, he had money, because
I
and carried on no business." 254
;^ 13,000
Walter Palmer, wasn't
hadn't a shilling in the world
Smith.
Why,
recollect!
know
that he
"
"
"
CROSS-EXAMINATION OF JEREMIAH SMIi
" 1
know
years before, but
bankrupt.
tified
his mother, l^ut
I I
know
[the prisoner], gave
Smith.
that he was an uncer-
that he
had an allowance from
believe that his brother, William
"Where,
you living In 1854
I
him money
Attorney-General.
"
know
do not know whether he had money
from any otlier source.
1855, were
was an
that he
had been a bankrupt some
that he
did not
I
know
"
uncertified bankrupt?
Smith.
Didn't you
"
Attorney-General.
11
I
—
in
think
at different times."
in the
Rugeley I
course of 1854 and
.?
resided partly with William
Palmer, and sometimes at his mother's."
Attorney-General.
"
Did you sometimes
"
When you did that, where did you
sleep at his
mother's.?
Smith.
"Yes."
Attorney-General. sleep
.?
Smith.
"
In a room."
Attorney-General.
room
Did you
"
sleep
in
his
mother's
— on your oath, were you not intimate with
you know well enough what Smith.
" I
I
mean
her
—
" }
had no other intimacy, Mr. Attorney, than
a proper intimacy." Attorney-Geiieral.
How
"
often did you sleep at her
house, having an establishment of your
Smith.
"
Frequently.
Attorney-General.
man ?
"
Two
255
at
Rugeley
'' .'*
or three times a week."
Are you
"
own
a single
or
a
married
"
THE ART OF CROSS-EXAMINATION
A
"
Smith.
single man." "
Attor7tey-General.
How
long did that practice of
sleeping two or three times a
week
Mrs.
at
Palmer's
"
continue
?
Smith.
For several
"
Attorney-General.
Rugeley
at the
Smith.
"
}
the time."
all
Mrs. Palmer's house
Smith.
were your lodgings from
}
should say nearly quarter of a mile."
you, having your
"
own
Explain
how
happened
it
that
place of abode within a quarter of
two or three times a week
a mile, slept
Smith.
far
"
Attorney-General.
"
How
"
Attorney-General.
" I
lodgings at
"
time
Yes,
years."
Had you your own
"
at
Mrs. Palmer's."
Sometimes her son Joseph or other members
of her family
were on a
visit to her,
and
I
went to see
them." "
Attorney-General.
members
And when you went was
of her family,
too far for you to return a
it
quarter of a mile in the evening
Smith.
"
Why, we used
have a glass
night I
;
'
and
did not go
I
'
It is late
that
Attorney-General. years
game
of cards,
and
and smoke a pipe perhaps;
— you
had better stop
all
There was no particular reason why
did.
home
.?
to play a
of gin-and-water,
and then they said,
to see those
"
I
know
of."
Did that go on
for three or four
r
Smith.
"
Yes
;
and
I
sometimes used to stop there 256
"
CROSS-EXAMINATION OF JKRKMIAII SMIIH
—
when they were when there was nobody there at all away from home, the mother and all."
And you
"
Aitor7iey-Gcneral.
the sons were not there and the
all
have slept there when
mother was
" ?
Smilh. "Yes."
Smith. for
How
"
Attorney-General.
"Sometimes
some months
go near the house
Attorjiey-General.
and then perhaps
What
would not
did you stop for on those
when the sons were not there there was no one smoke and drink with then, and you might have gone
nights to
;
"
home, might you not Smith.
"
Yes
;
that there
?
but
A ttorjtey- General. Smith.
for
Do
you mean
" I
"
"
Now
I
upon
called
^13,000 by Walter Palmer
posal,
I
" I
shall
cannot say
;
if
of business,
you were applied
to attest another proposal in the
you
Universal
will let
me
"
I
ask you,
sir,
whether you cannot
to
tell
by William Palmer
?
R
Office.''"
see the pro-
as an attorney
posal for an assurance for ^13,000 on the
Palmer
another sub-
will turn to
know."
Attorney-General.
man
on your oath,
do."
Were you
Smith.
to say,
was nothing but a proper intimacy between
Attorney-General ject.
did not."
I
"
you and Mrs. Palmer ?
a
I
month."
for a "
" .?
two or three nights a week,
for
at a time,
happen
often did that
257
and
me whether
to attest a prolife
of
Walter
THE ART OF CROSS-EXAMINATION "
Smith.
say that
I
do not
I
document on the
see any
remember
recollect
subject,
If I
it.
daresay
I
could
should
I
it."
Do you remember
"
Attorney-General,
getting a
^5
note for attesting an assignment by Walter Palmer to his brother of such a policy "
Smith.
Perhaps
" t
might.
I
I
don't
recollect
posi-
tively."
A ttorney-Genteral "
Is that
(handing a document to witness).
your signature " It is
Smith.
very like
my
signature."
Have you any doubt about
"
Attorney-General.
Smith
" ?
considerable hesitation).
(after
it?
"
have some
" I
doubt."
on your
oath, " I
Smith.
whether
it
is
the document, and
"
prepared in your ofHce " It
was
it is
Read the document,
mine." sir.
Was
it
" ?
" I will
have an answer from you
on your oath one way or another.
Isn't that
your hand-
" ?
Smith.
" I
think that
it
believe that is
Smith.
" I will.
my
it
is
not
my
handwriting.
a very clever imitation of "
Attorney-General.
tion of
me,
not."
Attorney-Ge7ieral.
writing
tell
your signature."
have some doubt whether
Attorney-General.
Smith.
Read
"
Attorney-General.
I
Will you swear that
think that
handwriting." 258
it
is
I
it." it is
not.?
"
a very good imita-
"" "
"
!
CROSS-EXAMINA'I ION OK JERKMIMI SMITH Baron Alderson. tation
"
I
Walter Palmer,' — "
Smith.
I
"
believe that
words 'signed,
They
"
at the other signature there, " ?
Walter Palmer's."
is
Look
at the attestation
and the
and delivered'; are they
in
Mr.
"
are."
Attorney-General.
"
Did you
receive that from Mr.
?
Smith. that
"
sealed,
handwriting ?
Smith.
Look
Lord."
that his signature
is
Attorney-General.
Pratt's
my
don't recollect,
Attor7tcy-General.
Pratt
attes-
?
Smith.
*
Did you ever make such an
"
Most
*'
did.
I
It
likely
might
I
did
;
but
have been
can't
I
sent
to
swear
William
Palmer."
Attorney-General.
Palmer
"
Did you
receive
from William
it
?
" I
Smith.
don't know.
Attorney-General.
"
Very
likely
I
did."
Did William Palmer give you
that
document ? " I
Smith.
have no doubt he
Attorney-Geiieral.
" If
did."
that be the
document he gave
you, and those are the signatures of Walter Palmer and of Pratt,
Smith.
is
}
—
"
"
I'll tell
you, Mr. Attorney "
Attorney-General.
Answer my Smith.
"
not the other signature yours
" I
Don't
'
Mr. Attorney
question.
Isn't that
believe
not to be."
it
259
'
me,
your handwriting
sir " ?
"
THE ART OF CROSS-EXAMINATION Attorney-General.
Smith.
" I
"
Will you swear that
believe that
Counties Insurance Office
in
" I
think
I
the
life
of Bates for
Smith.
" I
"
"
if
I
yourself.?"
Did William Palmer apply
to
you
.?
Bates and Palmer came together to
was any agent I
— you
"
with a prospectus, and asked
them
?
did."
send that proposal Smith.
Midland
Did you send them a proposal on
^10,000
A ttorney-Gejteral. to
the
did." "
Attorjiey-General.
to
October, 1855, to be ap-
pointed their agent at Rugeley
Smith.
"
not."
Did you apply
"
Attor7iey-General.
it is
isn't?
it
for that
had never heard
me
if
company of one,
I
my office
knew whether Rugeley.
in
there
I
and they then asked
told
me
would write and get the appointment, because Bates
wanted
to raise
some money."
Attorney-General. Office
"Did you send
to
and get appointed as their agent
in order
to effect that
the
Midland
in
Rugeley,
^10,000 insurance on Bates's
"
life }
Smith.
" I did."
Attorney-General.
"
Was
Bates at that time superin-
tending William Palmer's stud and stables } Smith.
"He
was."
Attor7tey-General.
Smith.
"
"
At
a salary of
^i
a
week }
"
" I can't tell his salary."
Attorney-General.
"
After that did you go to the widow 260
"
CROSS-EXAMINATION OF JKREMIAH SiMITH Walter Palmer
of
to get her to give
policy of her Jnisband
Smith.
?
" I did."
"
At
Pratt to take to her "
she at that time
" ?
Liveipool."
Did you receive a document from
"
Attorney-Ge7ieral.
Smith.
Where was
"
Aiiorney-Gencral.
Smith.
up her claim on the
"
" ?
William Palmer gave
me one which had been
directed to him."
Attorney-General.
Smith. it
;
and
I
"
She
said,
'
it
By
all
leave
" I
" ?
means.'
"Of
— didn't you bring
Smith.
refuse
said she should like her solicitor to see
Attorney-General.
do
Did the widow
"
brought
it
Didn't she refuse to
course!
back
it
back as
" ?
I
had no instructions
to
it."
Attorney-General.
"
Didn't she say that she under-
stood from her husband
that
the
insurance was
for
/ 10,000.?" Mr. Serjeant Shee objected to this question. What passed between the widow and witness could be no evidence against the prisoner.
The Attorney-General
said that the question
tended
to affect the credit of the witness,
view
was most important.
it
The
and
was
in-
with that
court ruled that the question could not be put.
Attorney-General.
"
Do
you know that Walter Palmer
obtained nothing for making that assignment 261
" ?
"
THE ART OF CROSS-EXAMINATION " I believe that
Smith. for
it."
"
Attoriiey-General.
was a
bill
"
Yes
know
Don't you
that
what he got
"
for ;!^200?
Smiik.
and he had a house furnished
;
Attorney-Ge7ieraL for
he ultimately did get something
"
Don't you
"
And
for him."
know that he got
a
bill
^200?
Smith. "Yes." Attorney-General.
was never paid Smith.
"
know that
that bill
}
No,
I
do
not."
Now,
"
Attor7iey-General. little
don't you
"
refresh your
I'll
memory
a
with regard to those proposals [handing witness a
Look
document].
and
at that,
tell
me whether
it
is
in
your handwriting." Smith.
" It is."
Attorney-General. that,
Refreshing your
in
December, 1854, to
his brother, Walter, for
Sm,ith.
" I
" I
in the Solicitors
"
"Were you
that document,
upon the subject ? Smith.
on the
might have been."
Attorney-General. at
attest a proposal
^13,000
and General Insurance Office }
Look
memory with
ask you were you not applied to by William
I
Palmer life of
"
or were you not, sir?
and say have you any doubt
"
do not
like to
speak from
memory
with
reference to such matters."
Attorney-General.
"
No
;
but not speaking from
262
mem-
CROSS-EXAMINATION OF JEREMIAH SMITH memory
ory in an abstract sense, but having your
freshed by a perusal of that document, have
appHed
" I
life
I
might have been
to."
Have you any doubt
"
1855, you were
in another office
;;^
Look
?
that in Janu-
on by William
called
another proposal for
attest
?
have no doubt that
Attorney-General. ary,
you any
"
doubt that you were appHed to Smith.
re-
13,000 on
at that
Palmer
to
his brother's
document and
tell
me."
Smith,
" I
have signed
see the paper, but it
"
blank
of this nature in
several of
" I
Do you
;
I
might
usually sign attestations
" }
have some doubt whether
them
know
in blank."
Attor7iey-General.
Smith.
don't
I
I
did not sign
in blank."
"On
Attorney-General.
your oath, looking
that
at
document, don't you know that William Palmer applied
you
to ;^
1
upon
to attest that proposal
his brother's
life
for
3,000?"
Smith.
some
"
He
me
did apply to
to attest proposals in
offices."
Attorney-General.
Smith.
"
One was
"
Smith.
" I
"
sum
might
Attorney-General.
they for large amounts
" }
for ^13,000."
Attorney-General. other for the like
Were
Were you
applied to to attest an-
in the Universal Office
" ?
be." "
They were made much about 26^
the
"
"
;
THE ART OF CROSS-EXAMINATION same
time,
You
were they not?
answers to come back to the
made
the second
turned at
?
the policy
upon
careful,
his
Smith.
" I
am
I
life
to his brother,
the deed assigning
William Palmer?
Mr. Smith, for depend upon
hear of this again
not.
Will you swear that you were not
"
when Walter Palmer executed
Now, be
re-
all."
Attorney-General. present
application before you
first
"
do not know that any answers were
" I
Smith.
did not wait for the
will
you are
if
it
you
shall
not."
not swear that
I
was,
think
I
I
was
not quite positive."
(Very few of the answers to these questions of the Attorney-General were given without considerable hesitation,
of
and the witness appeared to labor under a sense
embarrassment which
a decidedly unfavorable
left
impression upon the minds of the audience.) "
Attorney-General.
Do
you know that the ^200
bill
was given for the purpose of enabling William Palmer to
make up Smith.
lutely
a
" I
from
sum
of
believe
^500? it
me ^200.
was not If
am
I
with him to Shrewsbury races
Attorney-Ge7teraL
drawn
"
In
;
for
Cook
received abso-
not mistaken, he took
— not the
whose
favor
it
last races."
was
the
bill
I
don't
?
Sm.ith.
" I
think in favor of William Palmer.
know what became
of
it.
cannot state with certainty
I
have never seen
who saw me on 264
it
the
since.
Monday
I
CROSS-EXAMINATION OF JKREMlAil SMllil but
I
room. as
I
called at the Talbot
One
of the servants
Arms, and went
into Cook's
me
As
gave
who
can remember, the servant
Bond, Mills, or Lavinia Barnes,
265
I
a candle.
well
did so was either
can't say which."
CHAPTER XV THE CROSS-EXAMINATION OF RUSSELL SAGE BY MR. JOSEPH H. CHOATE IN THE LAIDLAW-SAGE CASE
CHAPTER XV THE CROSS-EXAMINATION OF RUSSELL SAGE BY MR. H. CHOATE IN THE LAIDLAW-SAGE CASE
One
of the
most recent cross-examinations
the subject of appeal to the
Term and
the
New York
JOSKI'H
to be
made
Supreme Court General
Court of Appeals was the
cross-examination of Russell Sage by
Mr. Joseph
H.
Choate, in the famous suit brought against the former
Sage was defended by the
by William R. Laidlaw.
Edwin
Mr. Choate appeared for the
Mr. Laidlaw.
plaintiff,
On
James, and
C.
late
the fourth day of December, 1891, a stranger by
name of Norcross came to Russell Sage's New York ofHce and sent a message to him that he wanted to see him on important business, and that he had a
the
letter of introduction
from Mr. John Rockefeller.
Sage
ofifice,
left
his private
was handed an open I
hold in
my hand
drop
this
in ruins
and
if I
which
letter
read,
every
floor
it
will
it ?
Norcross,
This carpet-bag
destroy this building
human being
twelve hundred thousand dollars, or
you give
"
to
contains ten pounds of dynamite, and
bag on the kill
and going up
Mr.
Yes or no ?
"
269
I
in
will
it.
drop
I
demand it.
Will
THE ART OF CROSS-EXAMINATION Mr. Sage read the
letter,
handed
it
back to Norcross,
and suggested that he had a gentleman waiting
and could be through his business
in his private office,
in a couple of
him
for
minutes when he would give the matter
his attention,
Norcross responded tion
?
Will you give
explained again it
to
him
for
Then you
"
:
it
to
me ?
Yes or no
why he would have
two or three minutes
and
in his private office,
law entered the
office,
proposi-
Sage
? '
to postpone giving
to get rid of
just at this juncture
some one Mr, Laid-
saw Norcross and Sage without
hearing the conversation, and waited until
my
decline
Sage should be disengaged.
in
the anteroom
As he
waited.
Sage
edged toward him and partly seating himself upon the table
near Mr. Laidlaw, and without addressing him,
took him by the
left
but with both his
hand
own
as
to shake
if
hands with him,
hands, and drew Mr. Laidlaw
almost imperceptibly around between him and Norcross.
As he did so, he said to Norcross, " If you cannot trust " me, how can you expect me to trust you ? With that there was a terrible explosion. Norcross himself was blown to pieces and instantly killed,
Laidlaw found himself on the Sage.
He was
floor
seriously injured,
against Mr. Sage for
later
of
of his
Russell
brought
damages upon the ground
had purposely made a shield pected explosion.
and
on top
Mr.
suit
that he
body from the
ex-
Mr. Sage denied that he had made
a shield of Laidlaw or that he had taken him by the 270
THE CROSS-EXAMINATION OF RUSSELL SAGE hand or
own
altered his
position so as to bring Laid-
law between him and the explosion.
The
case was tried four times.
was dismissed by
It
Mr. Justice Andrews, and upon appeal the judgment
On
was reversed.
the second
before Mr. Justice
trial
Patterson the jury rendered a verdict of #25,000 in favor of
On
Mr. Laidlaw.
reversed.
On
appeal this judgment in turn was
third
a
Patterson, the jury disagreed
and on the fourth
trial
ver-
Mr. Laidlaw of #40,000, which judg-
dict in favor of
Supreme
;
Mr. Justice
before
Ingraham the jury rendered a
before Mr. Justice
ment was
also
trial,
by the
sustained
but
Court,
General
Term
reversed
subsequently
of
the
by
the
Court of Appeals. Exception on
method used
this appeal
was taken especially to the
in the cross-examination of
Mr. Choate.
Thus
as an instance of
the cross-examination
New York
what the
Mr. Sage by is
Court
interesting, of
Appeals
has decided to be an abuse of cross-examination into which, through led,
and
chapter.
It
sometimes vious
their to
zeal,
even eminent counsel are
which
also
have referred in a pre-
I
shows
to
what lengths Mr.
Choate was permitted to go upon the pretext
of test-
ing the witness's memory. It
that
was claimed by Mr. Sage's counsel upon the appeal "
the
riorht
of cross-examination
was abused
in this
case to such an extent as to require the reversal of this
monstrous judgment, which
is
271
plainly the precipitation
"
THE ART OF CROSS-EXAMINATION and product
unanimously took
The cially
And
of that abuse."
the Court of Appeals
view of the matter.
this
portions of the cross-examination that were espe-
excepted to were the rejected jurors' conversation
with Mr. Sage
the defendant's lack of sympathy for the
;
the article in the
plaintiff;
New
York World; the
de-
give warning of the impending
fendant's omission to
explosion, and the defendant's wealth
and the extent and
character of his business.
Mr.
Choate.
Mr. Sage
Mr. Mr.
Mr. Mr. Mr.
Sage.
Mr.
Mr. Mr. Mr. fidence
Mr. Mr.
"
Choate.
Yes,
morning,
"
Choate.
"
Sage.
"
"
" It
Choate.
to
the
is
sir."
your best ear ?
"
This."
" I
Choate.
hear you,
Which
Do you remember
in this case
Sage.
remember swearing
?
" I didn't
Choate.
Sage.
you "
"
swearing to the
" }
do."
Who
prepared
it
for
was prepared by Counsel in
my
whom
you
" ?
counsel."
you have every con-
" .f*
Sage.
"
Choate.
Yes, "
sir."
Prepared after you had given a careful
statement of your case to them
Mr.
this
sir."
"Do
this case
Sage.
answer
hope you are very well
?
answer in
Mr.
" I
Sage.
"
Such statement 272
" ?
as
I
thought necessary."
""
THE CROSS-EXAMINATION OK Mr.
Did you mean
"
Choate.
SAGE
RUSSELI.
to conceal
anything from
"
them
?
Mr. Mr.
No,
"
Sage.
Choate.
sir."
Did you read the complaint over with
"
? your counsel before you swore to the answer
Mr.
presume
" I
Sage.
I
did."
Mr.Ckoatc. "Just imagine you were down at the Stock Exchange now, and speak loud enough so that gentleman can hear you." Mr. Sage. " I will endeavor
Mr.
"
swore to
it
.''
" I did, sir."
Mr. Mr. Mr.
Sap-e. o
Mr.
Choate.
made
Did you read your answer before you
"
Choate.
to."
" It
Choate.
Sage.
" I
was
true, then,
believed
" I
it
to
be
was
it
so."
your attention
call
?
not
statement
a
to
(Mr. Choate here read from Mr.
in the answer."
answer in which he swore that he was in converthe sation with Mr. Norcross while Mr. Laidlaw was in the day beoffice, Mr. Sage having testified differently Sao-e's
fore.)
"
Was
that true
Sacrc.
Mr.
Choate.
3^ou to
don't know.
" I
Mr.
answer
" ?
" I
didn't
it.
You
answer says that the
I
didn't catch
want you
to catch
fact as
Sao-e. I
"
I
wanted
observe, do you not, that the
plaintiff
Laidlaw was in your ofHce
observe that, but
did yesterday." s
I
it.
while you were conversing with the stranger
Mr.
it."
273
I
want
" ?
to state the
"
THE ART OF CROSS-EXAMINATION Mr.
Answer my
"
Choate.
Did you observe
question.
it?"
Mr. Mr.
" I did."
Sage.
Put down your
"
Choate.
and answer
fist
my
question."
Mr. Mr.
answered
" I
Sage.
you answer
my
questions instead of
Did you observe Laidlaw was
think we will get along as soon as
" I
Choate.
it."
making speeches.
that your answer states
in the office,
before
that
and while you were convers-
ing with the stranger, the stranger had already handed
you a note demanding money
Mr.
Sage.
Mr.
Choate.
" ?
He had done no such thing." " Do you observe that your answer
"
states
that?"
Mr. as
I
Sage.
Your reading
"
have stated
Mr.
states
it
so,
but the fact
is
it."
"
Choate.
Was
not your answer true as you swore
to it?"
Mr. Mr.
Sage.
"
Sage.
;
not on your interpretation."
How came
you to swear
to
it,
if
it
is
suppose that was prepared afterward by
" I
you prepare papers." " I
Choate.
talking about
Mr.
sir
?
counsel, as
Mr.
No,
Choate.
not true
Mr.
"
Sage.
never prepare papers.
What
are you
" ?
"
You have
the
papers."
274
reputation of preparing
"
"
I
THE CROSS-KXAMINA riON OF RUSSKLL SAGE Mr.
Do you mean
"
Choale.
that your lawyers dis"
torted the facts from what you stated
Mr.
Sage.
" 1
?
suppose they prepared the papers
in
their usual form."
Mr.
"
Choate.
any usual form
Mr.
Sage.
Mr.
"
In the usual form
?
for a case like this
?
Yes,
Choate.
there ever
sir."
Did you ever know
*'
Was
such
of
a case
"
before
?
Mr.
Sage.
"
No,
sir."
(Mr. Choate then
pursued
inquiry,
this
in
various
forms, for at least one hundred questions more, and get-
ting no satisfactory answer, he continued,
the subject and
Mr.
go "
Choate.
to
something
Since Mr.
"
We will
drop
else.")
Laidlaw made
this
claim
against you, you have been very hostile against him, "
have you not
Mr. Mr.
Sage.
?
"
No, "
Choate.
bad names
Mr. Mr.
" I
o Choate.
Mr.
?
not hostile."
Have you not
called
him
all
sorts of
?
Sao-e.
mailer
sir,
"
When
Sage.
" I
said he did not tell the truth."
Have you denounced him did you do that
as a black-
" ?
might have said that a man who would
persevere in making a statement that there was not a
and demanding a sum
word
of truth in,
don't
know what you
Mr.
Choate.
"
call
it.
Call
Did you not say 275
it
of
money
what you
that you
—
please."
would see
"
"
THE ART OF CROSS-EXAMINATION Laidlaw a tramp before he would get through with case
this
?
Mr.
Sage.
" I
Mr.
Choate.
"
Mr. Mr. Mr. Mr.
Sage.
no
have
recollection
any such
of
thing."
that
" I
won't swear.
What ?
"
Choate.
" I
Choate.
I
" ?
might."
"
won't testify to what
" I
Sage.
Will you swear you didn't
want you
to say
have
I
said."
whether you
will
swear
you said that you would see Laidlaw a tramp
be-
fore he got through."
Mr. Mr. juror
Sage.
" I
don't know."
Do
"
Choate.
you not know that when the
was excused from the
jury-box, or discharged, he
and the other
stated in the presence of the court
men in
that after the verdict rendered
this case
Mrs.
against you,
at
was a great outrage, ?
"
(This
by Mr. James, but
objected to
bitterly
him
to
and that Mr. Sage would never pay a cent
was
jury-
by the former jury
Sage went
Tiffany's and stated that the verdict
question
last
allowed by the court.)
Mr.
permit —
Mr.
" I
Sage.
want
to state
The
first
right
here,
you
will
answer
this
if
"
"
Choate.
business
is
to
question."
Mr. Sage.
" I
don't
know
it.
I
know
that Mrs.
Sage
denied ever having said anything of the kind."
Mr.
Choate.
"
You
think the juror told a falsehood 276
?
"
THE CROSS-EXAMINATION OF RUSSELL SAGE Mr.
Mrs. Sage has no recollection of having
"
Sage.
said that."
Mr.
outrage
Mr.
Did you say
"
Choate.
to
anybody
that
was an
it
" }
have no recollection.
" I
Sage.
I
think
it
the
is
greatest outrage that was ever attempted by a respectable lawyer."
Mr.
$100,000 dollars
this
defending this case rather than pay a
?
" I
Sage.
state
in
would spend
that you
"
cent to Laidlaw
Mr.
Did you not say
"
Choate.
have great confidence
and the United
and
States,
other people besides myself, and
I
in the courts of I
am
fighting for
propose to have this
case settled by the highest courts."
Mr.
Choate.
Mr.
Sage.
will
No
"
matter what this jury says
have great respect for them that they
" I
decide the case rightly.
can come into
" ?
my
I
want
to
know
if
a
man
and because a tramp drops
office,
there and an accident happens, and an injury done,
am
Mr.
Choate.
I
"
responsible for that
?
These harangues
"
in
of
yours take a great
ask you whether or not you
knew
deal of time.
I
Laidlaw
time of this accident had been very badly
at the
that
hurt.?"
Mr. Mr.
Sage.
"
Choate.
Yes,
hospital helpless
Mr.
Sage.
" I
sir
Do
"
;
not
knew he had been." you know he was laid up
I
.?
understand he was. 277
Yes,
sir."
in the
THE ART OF CROSS-EXAMINATION Mr.
Did
"
Choate.
ever occur to you to see what you
it
"
could do for him
?
Mr. Sage. "Yes, sir. I sent my brother-in-law to inquire after him twice." " Mr. CJioate. " Did you visit him yourself ? Mr. Sage. " I did not." Mr. Choate. " Did you do anything to relieve his sufferings
Mr.
" ?
was not called upon
" I
Sage.
to
do anything
of
the kind."
Mr.
called upon.
Mr. Mr.
asked whether you did
I
" I
Sage.
did not ask you whether you were
" I
Choate.
"
Choate.
did not."
Did not you
him because you were claim upon you
Mr. Mr.
"
Sage.
No,
at this time
Mr. Mr.
to see
you did he would make a
sir."
to
" }
an outrage to ask such a question."
Did you have a grandnephew, Chapin,
" }
"
Sage.
Sage.
Yes." "
Choate.
at that time
Mr. Mr.
"
Choate.
to see
Did you care whether he was going
" It is
Sage.
if
from going
}
get cured or not
Mr. Mr.
afraid
refrain
"
"
Choate.
" }
Was
he assistant editor
of the
World
" .
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