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09 - Art of Cross-Examination by Francis Wellman · Art of Cross-Examination

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  Speaker 1: Chapter nine of the Art of Cross Examination by Francis Wellman.
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  Speaker 1: This LibriVox recording is in the public domain. Chapter nine
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  Speaker 1: Golden Rules for the Examination of Witnesses. David Paul Brown,
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  Speaker 1: a member of the Philadelphia Bar, has condensed his experiences
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  Speaker 1: into eighteen paragraphs, which he has entitled Golden Rules for
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  Speaker 1: the Examination of Witnesses. Although I am of the opinion
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  Speaker 1: that it is impossible to embody in any set of
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  Speaker 1: rules the art of examination of witnesses, yet the Golden
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  Speaker 1: Rules of Brown contain so many useful and valuable suggestions
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  Speaker 1: concerning the art that it is well to reprint them
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  Speaker 1: here for the benefit of the student. Golden Rules for
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  Speaker 1: the Examination of Witnesses. First, as to your own witness One,
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  Speaker 1: if they are bold and may injure your cause by
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  Speaker 1: pertinence or forwardness, observe a gravity and ceremony of manner
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  Speaker 1: toward them, which may be calculated to repress their assurance. Two,
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  Speaker 1: if they are alarmed or diffident, and their thoughts are
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  Speaker 1: evidently scattered, commence your examination with matters of a familiar
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  Speaker 1: character remotely connected with the subject of their alarm or
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  Speaker 1: the matter an issue, as, for instance, where do you live,
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  Speaker 1: do you know the parties, how long have you known them?
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  Speaker 1: Et cetera. And when you have restored them to their composure,
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  Speaker 1: and the mind has regained its equilibrium, proceed to the
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  Speaker 1: more essential features of the case, being careful to be
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  Speaker 1: mild and distinct in your approaches, lest you may again
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  Speaker 1: trouble the fountain from which you are to drink. Three.
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  Speaker 1: If the evidence of your own witnesses be unfavorable to you,
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  Speaker 1: which should always be carefully guarded against, exhibit no want
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  Speaker 1: of composure. For there are many minds that form opinions
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  Speaker 1: of the nature or character of testimony, chiefly from the
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  Speaker 1: effect which it may appear to produce upon the council.
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  Speaker 1: For if you perceive that the mind of the witness
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  Speaker 1: is imbued with prejudices against your client, hope but little
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  Speaker 1: from such a quarter. Unless there be some facts which
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  Speaker 1: are essential to your client's protection, and which that witness
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  Speaker 1: alone can prove, either do not call him, or get
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  Speaker 1: rid of him as soon as possible. If the opposite
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  Speaker 1: council perceive the bias to which I have referred, he
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  Speaker 1: may employ it to your ruin. In judicial inquiries, of
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  Speaker 1: all possible evils, the worst and the least to be
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  Speaker 1: resisted is an enemy in the disguise of a friend.
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  Speaker 1: You cannot impeach him, you cannot cross examine him, you
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  Speaker 1: cannot disarm him, you cannot indirectly even assail him. And
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  Speaker 1: if you exercise the only privilege that is left to
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  Speaker 1: you and call other witnesses for the purposes of explanation,
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  Speaker 1: you must bear in mind that instead of carrying the
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  Speaker 1: war into the enemy's country, the struggle is still between
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  Speaker 1: sections of your own forces, and in the very heart
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  Speaker 1: perhaps of your own camp. Avoid this by all means.
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  Speaker 1: Rule five. Never call a witness whom your adversary will
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  Speaker 1: be compelled to call. This will afford you the privilege
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  Speaker 1: of cross examination. Take from your opponent the same privilege
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  Speaker 1: it thus gives to you. And in addition, there too,
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  Speaker 1: not only render everything unfavorable said by the witness doubly
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  Speaker 1: operative against the party calling him, but also deprive that
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  Speaker 1: party of the power of counteracting the effect of the testimony. Six.
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  Speaker 1: Never ask a question without an object, nor without being
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  Speaker 1: able to connect that object with the case. If objected
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  Speaker 1: to as irrelevant. Seven, be careful not to put your
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  Speaker 1: question in such a shape that, if opposed for informality,
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  Speaker 1: you cannot sustain it or at all events produce strong
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  Speaker 1: reason in its support. Frequent failures in the discussions of
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  Speaker 1: points of evidence enfeeble your strength in the estimation of
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  Speaker 1: the jury, and greatly impair your hopes in the final result.
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  Speaker 1: Eight Never object to a question from your adversary without
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  Speaker 1: being able and disposed to enforce the objection. Nothing is
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  Speaker 1: so monstrous as to be constantly making and withdrawing objections.
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  Speaker 1: It either indicates a want of correct perception in making them,
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  Speaker 1: or a deficiency of real or of moral courage in
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  Speaker 1: not making them. Good Nine, Speak to your witness clearly
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  Speaker 1: and distinctly, as if you were awake and engaged as
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  Speaker 1: a matter of interest, and make him also speak distinctly
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  Speaker 1: and to your question. How can it be supposed that
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  Speaker 1: the court and jury will be inclined to listen when
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  Speaker 1: the only struggle seems to be whether the counsel or
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  Speaker 1: the witness shall first go to sleep. Ten Modulate your
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  Speaker 1: voice as circumstances may direct, inspire the fearful, and repress
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  Speaker 1: the bold rule. Eleven. Never begin before you are ready,
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  Speaker 1: and always finish when you have done. In other words,
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  Speaker 1: do not question for question's sake, but for an answer
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  Speaker 1: cross examination. Rule one, except in indifferent matters, never take
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  Speaker 1: your eye from that of the witness. This is a
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  Speaker 1: channel of communication from mind to mind, the loss of
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  Speaker 1: which nothing can compensate. Quote truth, falsehood, hatred, anger, scorn, despair,
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  Speaker 1: and all the passions, all the soul is there unquote.
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  Speaker 1: Rule two. Be not regardless either of the voice of
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  Speaker 1: the witness next to the eye. This is perhaps the
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  Speaker 1: best interpreter of his mind. The very design to screen
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  Speaker 1: conscience from crime. The mental reservation of the way witness
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  Speaker 1: is often manifested in the tone or accent or emphasis
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  Speaker 1: of the voice. For instance, it becoming important to know
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  Speaker 1: that the witness was at the corner of sixth and
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  Speaker 1: Chestnut Streets at a certain time. The question is asked,
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  Speaker 1: were you at the corner of sixth than Chestnut Streets
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  Speaker 1: at six o'clock? A frank witness would answer, perhaps I
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  Speaker 1: was near there. But a witness who had been there,
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  Speaker 1: desirous to conceal the fact and to defeat your object,
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  Speaker 1: speaking to the letter rather than the spirit of the inquiry,
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  Speaker 1: answers no, although he may have been within a stone's
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  Speaker 1: throw of the place, or at the very place within
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  Speaker 1: ten minutes of the time. The common answer of such
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  Speaker 1: a witness would be, I was not at the corner
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  Speaker 1: at six o'clock. Emphasis upon both words plainly implies a
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  Speaker 1: mental evasion or equivocation, and gives rise with a skillful
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  Speaker 1: examiner to the question at what hour were you at
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  Speaker 1: the corner? Or at what place were you at six o'clock?
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  Speaker 1: And in nine instances out of ten it will appear
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  Speaker 1: that the witness was at the place about the time,
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  Speaker 1: or at the time about the place. There is no
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  Speaker 1: scope for further illustrations. But be watchful, I say of
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  Speaker 1: the voice, and the principle may be easily applied. Rule three.
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  Speaker 1: Be mild with the mild, shrewd with the crafty, confiding
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  Speaker 1: with the honest, merciful to the young, the frail, or
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  Speaker 1: the fearful, rough to the ruffian, and a thunderbolt to
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  Speaker 1: the lyre. But in all this, never be unmindful of
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  Speaker 1: your own dignity. Bring to bear all the powers of
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  Speaker 1: your mind. Mind not that you may shine, but that
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  Speaker 1: virtue triumph, and your cause may prosper. Rule four. In
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  Speaker 1: a criminal, especially in a capital case, so long as
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  Speaker 1: your cause stands well, ask but few questions, and be
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  Speaker 1: certain never to ask any the answer to which, if against,
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  Speaker 1: you may destroy your client, unless you know the witness
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  Speaker 1: perfectly well and know that his answer will be favorable
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  Speaker 1: equally well, or unless you be prepared with testimony to
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  Speaker 1: destroy him if he play traitor to the truth and
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  Speaker 1: your expectations. Five. An equivocal question is almost as much
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  Speaker 1: to be avoided and condemned as an equivocal answer, and
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  Speaker 1: it always leads to or excuses an equivocal answer. Singleness
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  Speaker 1: of purpose, clearly express rest is the best trait in
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  Speaker 1: the examination of witnesses, whether they be honest or the reverse.
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  Speaker 1: Falsehood is not detected by cunning, but by the light
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  Speaker 1: of truth, or if by cunning, it is the cunning
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  Speaker 1: of the witness and not of the council. Six. If
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  Speaker 1: the witness determined to be witty or refractory with you,
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  Speaker 1: you had better settle that account with him at first,
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  Speaker 1: or its items will increase with the examination. Let him
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  Speaker 1: have an opportunity of satisfying himself, either that he has
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  Speaker 1: mistaken your power or his own. But in any result,
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  Speaker 1: be careful that you do not lose your temper. Anger
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  Speaker 1: is always either the precursor or evidence of assured defeat
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  Speaker 1: in every intellectual conflict. Seven. Like a skillful chess player,
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  Speaker 1: in every move, fix your mind upon the combinations and
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  Speaker 1: relations of the game. Partial and temporary success may otherwise
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  Speaker 1: end in total and remediless defeat. Eight. Never undervalue your adversary,
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  Speaker 1: but stands steadily upon your guard. A random blow may
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  Speaker 1: be just as fatal as though it were directed by
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  Speaker 1: the most consummate skill. The negligence of one often cures,
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  Speaker 1: and sometimes rendered defective the blunders of another. Rule nine.
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  Speaker 1: Be respectful to the court and to the jury, kind
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  Speaker 1: to your colleague, civil to your antagonist. But never sacrifice
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  Speaker 1: the slightest principle of duty to an overweening deference toward either.
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  Speaker 1: In The Advocate His Training, Practice, Rights and Duties, written
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  Speaker 1: by Cox and published in England about a half century ago,
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  Speaker 1: there is an excellent chapter on cross examination, to which
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  Speaker 1: the writer is indebted for many suggestions. Cox closes his
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  Speaker 1: chapter with this final admonition to the students to whom
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  Speaker 1: his book is evidently addressed. In concluding these remarks on
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  Speaker 1: cross examination, the rarest, the most useful, and the most
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  Speaker 1: difficult to be acquired of the accomplishments of the advocate,
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  Speaker 1: we would again urge upon your attention the importance of
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  Speaker 1: calm discretion in addressing a jury. You may sometimes talk
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  Speaker 1: without having anything to say, and no harm will come
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  Speaker 1: of it. But in cross examination, every question that does
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  Speaker 1: not advance your cause injures it. If you do not
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  Speaker 1: have a definite object to attain, dismiss the witness without
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  Speaker 1: a word. There are no harm less questions here. The
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  Speaker 1: most apparently unimportant may bring destruction or victory. If the
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  Speaker 1: summit of the orator's art has been rightly defined to
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  Speaker 1: consist in knowing when to sit down, that of an
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  Speaker 1: advocate may be described as knowing when to keep his seat.
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  Speaker 1: Very little experience in our courts will teach you this lesson,
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  Speaker 1: for every day will show to your observant eye instances
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  Speaker 1: of self destruction brought about by imprudent cross examination. Fear
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  Speaker 1: not that your discreet reserve may be mistaken for carelessness
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  Speaker 1: or want of self reliance. The true motive will soon
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  Speaker 1: be seen and approved. Your critics are lawyers who know
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  Speaker 1: well the value of discretion in an advocate, and how
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  Speaker 1: indiscretion in cross examination cannot be compensated by any amount
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  Speaker 1: of ability in other duties. The attorneys are sure to
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  Speaker 1: discover the prudence that governs your tongue. Even if the
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  Speaker 1: wisdom of your abstinence be not apparent at the moment,
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  Speaker 1: it will be recognized in the result. Your fame may
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  Speaker 1: be of slower growth than that of the talker, but
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  Speaker 1: it will be larger and more enduring. End And of
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  Speaker 1: Chapter nine