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

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  Speaker 1: Chapter seven of the Art of Cross Examination by Francis Wellman.
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  Speaker 1: This LibriVox recording is in the public domain. Chapter seven
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  Speaker 1: Silent cross Examination. Nothing could be more absurd or a
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  Speaker 1: greater waste of time than to cross examine a witness
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  Speaker 1: who has testified to no material fact against you. And Yet,
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  Speaker 1: strange as it may seem, the courts are full of
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  Speaker 1: young lawyers, and alas not only young ones who seem
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  Speaker 1: to feel it their duty to cross examine every witness
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  Speaker 1: who is sworn. They seem afraid that their clients or
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  Speaker 1: the jury will suspect them of ignorance or inability to
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  Speaker 1: conduct a trial. It not infrequently happens that such unnecessary
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  Speaker 1: examinations result in the development of new theories of the
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  Speaker 1: case for the other side, and a witness who might
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  Speaker 1: have been disposed of as harmless by mere silence develops
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  Speaker 1: into a formidable obstacle in the case. The infinite variety
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  Speaker 1: of types of witnesses one meets with in court makes
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  Speaker 1: it impossible to lay down any set rules applicable to
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  Speaker 1: all cases. One seldom comes in contact with a witness
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  Speaker 1: who is in all respects like anyone he has ever
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  Speaker 1: examined before. It is this that constitutes the fascination of
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  Speaker 1: the art. The particular method you use in any given
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  Speaker 1: case depends upon the degree of importance you attached to
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  Speaker 1: the testimony given by the witness, even if it is false.
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  Speaker 1: It may be that you have on your own side
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  Speaker 1: so many witnesses who will contradict the testimony that it
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  Speaker 1: is not worthwhile to hazard the risks you will necessarily
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  Speaker 1: run by undertaking an elaborate cross examination. In such cases,
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  Speaker 1: by far, the better course is to keep your seat
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  Speaker 1: and ask no questions at all. Much depends, also, as
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  Speaker 1: will be readily appreciated, upon the age and sex of
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  Speaker 1: the witness. In fact, it may be said that the
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  Speaker 1: truly great trial lawyer is he who, while knowing perfectly
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  Speaker 1: well the established rules of his art, appreciates when they
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  Speaker 1: should be broken. If the witness happens to be a woman,
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  Speaker 1: and at the close of her testimony, in chief it
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  Speaker 1: seems that she will be more than a match for
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  Speaker 1: the cross examiner, it often works like a charm with
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  Speaker 1: the jury to practice upon her what may be styled
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  Speaker 1: the silent cross examination. Rise Suddenly, as if you intended
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  Speaker 1: to cross examine, the witness will turn a determined face
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  Speaker 1: toward you, preparatory to demolish, wishing you with her first answer.
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  Speaker 1: This is the signal for you to hesitate a moment,
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  Speaker 1: look her over good naturedly, and as if you were
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  Speaker 1: in doubt whether it would be worth while to question
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  Speaker 1: her and sit down. It can be done by a
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  Speaker 1: good actor in such a manner as to be equivalent
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  Speaker 1: to saying to the jury, what's the use she is
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  Speaker 1: only a woman. John Philpot Curran, known as the most
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  Speaker 1: popular advocate of his time and second only to Erskine
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  Speaker 1: as a trial lawyer, once indulged himself in this silent
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  Speaker 1: mode of cross examination, but made the mistake of speaking
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  Speaker 1: his thoughts aloud before he sat down. There is no
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  Speaker 1: use asking you questions, for I see the villain in
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  Speaker 1: your face, do you, sir? Replied the witness with a smile.
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  Speaker 1: I never knew before that my face was a looking glass.
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  Speaker 1: Since the sole object of cross examination is to break
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  Speaker 1: the force of the adverse testimony, it must be remembered
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  Speaker 1: that a feudal attempt only strengthens the witness with the jury.
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  Speaker 1: It cannot be too often repeated. Therefore, that saying nothing
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  Speaker 1: will frequently accomplish more than hours of questioning. It is
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  Speaker 1: experience alone that can teach us which method to adopt.
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  Speaker 1: An amusing instance of this occurred in the trial of
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  Speaker 1: Alphonse Stefani, indicted for the murder of Clinton G. Reynolds,
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  Speaker 1: a prominent lawyer in New York who had had the
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  Speaker 1: management and settlement of his father's estate. The defense was insanity,
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  Speaker 1: but the prisoner, though evidently suffering from the early stages
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  Speaker 1: of some serious brain disorder, was still not insane in
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  Speaker 1: the legal acceptation of the term. He was convicted of
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  Speaker 1: murder in the second degree and sentenced to a life imprisonment.
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  Speaker 1: Steffani was defended by the late William F. Howe, Esquire,
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  Speaker 1: who was certainly one of the most successful lawyers of
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  Speaker 1: his time in criminal cases. Howe was not a great lawyer,
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  Speaker 1: but the kind of witnesses ordinarily met with in such
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  Speaker 1: cases he usually handled with a skill that was little
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  Speaker 1: short of positive genius. Doctor Allan mc lean Hamilton, the
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  Speaker 1: eminent alienist, had made a special study of Steffani's case,
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  Speaker 1: had visited him for weeks at the Tomb's prison, and
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  Speaker 1: had prepared himself for a most exhaustive exposition of his
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  Speaker 1: mental condition. Doctor Hamilton had been retained by mister Howe,
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  Speaker 1: and was to be put forward by the defense as
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  Speaker 1: their chief witness. Upon calling him to the witness chair. However,
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  Speaker 1: he did not question his witness so as to lay
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  Speaker 1: before the jury the extent of his experience in mental
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  Speaker 1: disorders and his familiarity with all forms of insanity, nor
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  Speaker 1: developed before them the doctor's peculiar opportunities for judging correctly
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  Speaker 1: of the prisoner's present condition. The wily advocate evidently looked
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  Speaker 1: upon District Attorney de Lancey Nicoll and his associates, who
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  Speaker 1: were opposed to him, as a lot of inexperienced youngsters
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  Speaker 1: who would cross examine at great length and allow the
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  Speaker 1: witness to make every answer tell with double effect when
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  Speaker 1: elicited by the state's attorney. It has always been supposed
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  Speaker 1: that it was a preconceived plan of action between the
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  Speaker 1: learned doctor and the advocate in accordance therewith, and upon
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  Speaker 1: the examination in chief, mister Howe contented himself with this
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  Speaker 1: single inquiry, Doctor Hamilton, you have examined the prisoner at
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  Speaker 1: the bar, have you not? I have? Sir, replied Doctor Hamilton,
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  Speaker 1: Is he, in your opinion sane or insane? Continued mister Howe, insane,
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  Speaker 1: said doctor Hamilton, you may cross examine, thundered Howe with
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  Speaker 1: one of his characteristic gestures. There was a hurried consultation
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  Speaker 1: between mister Nicholl and his associates. We have no questions,
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  Speaker 1: remarked mister Nicholl quietly, What exclaimed Howe not ask the
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  Speaker 1: famous doctor Hamilton a question? Well, I will, and, turning
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  Speaker 1: to the witness, began to ask him how close a
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  Speaker 1: study he had made of the prisoner's symptoms, et cetera. When,
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  Speaker 1: upon our objection, Chief Justice van Brundt directed the witness
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  Speaker 1: to leave the witness box as his testimony was concluded,
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  Speaker 1: and ruled that inasmuch as the direct examination had been
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  Speaker 1: finished and there had been no cross examination, there was
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  Speaker 1: no course open to mister Howe but to call his
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  Speaker 1: next witness, mister Sergeant Ballantine. In his autobiography Some Experiences
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  Speaker 1: of a Barrister's Life gives an account of the trial
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  Speaker 1: for murder of a young woman of somewhat prepossessing appearance,
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  Speaker 1: who was charged with poisoning her husband. They were people
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  Speaker 1: in a humble class of life, and it was suggested
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  Speaker 1: that she had committed the act to obtain possession of
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  Speaker 1: money from a burial fund, and also that she was
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  Speaker 1: on terms of improper intimacy with a young man in
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  Speaker 1: the neighborhood. A minute quantity of arsenic was discovered in
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  Speaker 1: the body of the deceased, which in the defense mounted
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  Speaker 1: for by the suggestion that poison had been used carelessly
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  Speaker 1: for the destruction of rats. Mister Baron Parke charged the
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  Speaker 1: jury not unfavorably to the prisoner Dwelling pointedly upon the
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  Speaker 1: small quantity of arsenic found in the body, and the jury,
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  Speaker 1: without much hesitation, acquitted her. Doctor Taylor, the professor of
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  Speaker 1: chemistry and an experienced witness, had proved the presence of arsenic, and,
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  Speaker 1: as I imagine, to the great disappointment of my solicitor,
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  Speaker 1: who desired a severe cross examination, I did not ask
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  Speaker 1: him a single question. He was sitting on the bench
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  Speaker 1: and near the judge, who, after he had summed up
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  Speaker 1: and before the verdict was pronounced, remarked to him that
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  Speaker 1: he was surprised at the small amount of arsenic found,
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  Speaker 1: upon which Taylor said that if he had been asked
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  Speaker 1: the question, he should have proved that it indicated under
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  Speaker 1: the circumstances detailed in evidence that a very large quantity
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  Speaker 1: had been taken, the Professor had learned never to volunteer evidence,
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  Speaker 1: and the Council for the Prosecution had omitted to put
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  Speaker 1: the necessary question. Mister Baron Park, having learned the circumstance
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  Speaker 1: by accidental means, did not feel warranted in using the information,
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  Speaker 1: and I had my first lesson in the art of
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  Speaker 1: silent cross examination. End of Chapter seven