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

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  Speaker 1: Chapter six of the Art of cross Examination by Francis Wellman.
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  Speaker 1: This LibriVox recording is in the public domain. Chapter six.
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  Speaker 1: The sequence of cross examination much depends upon the sequence
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  Speaker 1: in which one conducts the cross examination of a dishonest witness.
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  Speaker 1: You should never hazard the important question until you have
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  Speaker 1: laid the foundation for it in such a way that,
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  Speaker 1: when confronted with the fact, the witness can neither deny
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  Speaker 1: nor explain it. One often sees the most damaging documentary evidence,
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  Speaker 1: in the form of letters or affidavits, fall absolutely flat
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  Speaker 1: as exponents of falsehood, merely because of the unskillful way
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  Speaker 1: in which they are handled. If you have in your
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  Speaker 1: possession a letter written by the witness in which he
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  Speaker 1: takes an opposite position on some part of the case
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  Speaker 1: to the one he has just sworn, to avoid the
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  Speaker 1: common error of showing the witness the letter for identification
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  Speaker 1: and then reading it to him with the inquiry, what
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  Speaker 1: have you to say to that During the reading of
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  Speaker 1: his letter, the witness will be collecting his thoughts and
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  Speaker 1: getting ready his explanations in anticipation of the question that
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  Speaker 1: is to follow, and the effect of the damaging letter
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  Speaker 1: will be lost. The correct method of using such a
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  Speaker 1: letter is to lead the witness quietly into repeating the
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  Speaker 1: statements he has made in his direct testimony, and which
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  Speaker 1: his letter contradicts. I have you down as saying so
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  Speaker 1: and so. Will you please repeat it? I am apt
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  Speaker 1: to read my notes to the jury, and I want
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  Speaker 1: to be accurate. The witness will repeat his statement, then
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  Speaker 1: write it down and read it off to him? Is
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  Speaker 1: that correct? Is there any out about it? For if
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  Speaker 1: you have any explanation or qualification to make, I think
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  Speaker 1: you owe it to us in justice to make it
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  Speaker 1: before I leave the subject. The witness has none. He
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  Speaker 1: has stated the fact there is nothing to qualify the
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  Speaker 1: jury rather like his straightforwardness. Then let your whole manner
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  Speaker 1: toward him suddenly change and spring the letter upon him.
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  Speaker 1: Do you recognize your own handwriting? Sir? Let me read
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  Speaker 1: you from your own letter in which you say, and afterward,
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  Speaker 1: Now what have you to say to that you will
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  Speaker 1: make your point in such fashion that the jury will
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  Speaker 1: not readily forget it. It is usually expedient when you
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  Speaker 1: have once made your point, to drop it and go
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  Speaker 1: to something else, lest the witness wriggle out of it.
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  Speaker 1: But when you have a witness under oath who is
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  Speaker 1: orally contradicting a statement he has previously made when not
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  Speaker 1: under oath, but in his own handwriting. You then have
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  Speaker 1: him fast on the hook, and there is no danger
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  Speaker 1: of his getting away. Now is the time to press
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  Speaker 1: your advantage. Put his self contradictions to him in as
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  Speaker 1: many forms as you can invent. Which statement is true?
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  Speaker 1: Had you forgotten this letter when you gave your testimony
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  Speaker 1: to day? Did you tell your counsel about it? Were
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  Speaker 1: you intending to deceive him? What was your object in
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  Speaker 1: trying to mislead the jury? Some men, said a London
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  Speaker 1: barrister who often saw Sir Charles Russell in action, get
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  Speaker 1: in a bit of the nail and there they leave
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  Speaker 1: it hanging loosely about until the judge or some one
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  Speaker 1: else pulls it out. But when Russell got in a
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  Speaker 1: bit of the nail, he never stopped until he drove
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  Speaker 1: it home. No man ever pulled that nail out again.
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  Speaker 1: Sometimes it is advisable to deal the witness a stinging
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  Speaker 1: blow with your first few questions. This, of course, assumes
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  Speaker 1: that you have the material with which to do it.
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  Speaker 1: The advantage of putting your best point forward at the
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  Speaker 1: very start is twofold. First, the jury have been listening
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  Speaker 1: to his direct testimony and have been forming their own
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  Speaker 1: impressions of him, and when you rise to cross examine,
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  Speaker 1: they are keen for your first questions. If you land
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  Speaker 1: one in the first bout, it makes far more impression
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  Speaker 1: on the jury than if it came later on, when
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  Speaker 1: their attention has begun to lag, and when it might
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  Speaker 1: only appear as a chance shot. The second, and perhaps
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  Speaker 1: more important effect of scoring on the witness with the
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  Speaker 1: first group of questions is that it makes him afraid
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  Speaker 1: of you and less hostile in his subsequent answers. Not
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  Speaker 1: no when you will trip him again and give him
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  Speaker 1: another fall. This will often enable you to obtain from
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  Speaker 1: him truthful answers on subjects about which you are not
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  Speaker 1: prepared to contradict him. I have seen the most determined
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  Speaker 1: witness completely lose his presence of mind after two or
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  Speaker 1: three well directed blows given at the very start of
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  Speaker 1: his cross examination, and become as docile in the examiner's
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  Speaker 1: hands as if he were his own witness. This is
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  Speaker 1: the time to lead the witness back to his original
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  Speaker 1: story and give him the opportunity to tone it down
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  Speaker 1: or retent it, as it were, possibly even to switch
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  Speaker 1: him over until he finds himself supporting your side of
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  Speaker 1: the controversy. This taming of a hostile witness and forcing
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  Speaker 1: him to tell the truth against his will is one
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  Speaker 1: of the triumphs of the cross examiner's art. In a
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  Speaker 1: speech to the jury, Chot once said, of such a witness,
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  Speaker 1: I brand him a vagabond and a villain. They brought
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  Speaker 1: him to curse, and behold he hath blessed us altogether.
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  Speaker 1: Some witnesses under this style of examination lose their tempers completely,
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  Speaker 1: And if the examiner only keeps his own and puts
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  Speaker 1: his questions rapidly enough, he will be sure to lead
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  Speaker 1: the witness into such a web of contradictions as entirely
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  Speaker 1: to discredit him with any fair minded jury. A witness
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  Speaker 1: in anger often forgets himself and speaks the truth. His
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  Speaker 1: passion benumbs his power to deceive. Still another sort of
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  Speaker 1: witness displays his temper on such occasions by becoming sullen.
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  Speaker 1: He begins by giving evasive answers, and nan by refusing
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  Speaker 1: to answer at all. He might as well go a
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  Speaker 1: little farther and admit his perjury at once. So far
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  Speaker 1: as the effect on the jury is concerned, When, however,
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  Speaker 1: you have not the material at hand with which to
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  Speaker 1: frighten the witness into correcting his perjured narrative, and yet
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  Speaker 1: you have concluded that a cross examination is necessary. Never
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  Speaker 1: waste time by putting questions which will enable him to
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  Speaker 1: repeat his original testimony in the sequence in which he
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  Speaker 1: first gave it. You can accomplish nothing with him unless
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  Speaker 1: you abandon the train of ideas he followed in giving
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  Speaker 1: his main story. Select the weakest points of his testimony
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  Speaker 1: and the attendant circumstances he would be least likely to
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  Speaker 1: prepare for. Do not ask your questions in logical order,
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  Speaker 1: lest he invent conveniently as he goes along, But dodge
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  Speaker 1: him about in his story, and pin him down to
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  Speaker 1: precise answers on all the accidental circumstances indirectly associated with
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  Speaker 1: his main narrative. As he begins to invent his answers,
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  Speaker 1: put your questions more rapidly, asking many unimportant ones to
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  Speaker 1: one important one, and all in the same voice. If
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  Speaker 1: he is not telling the truth and answering from memory
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  Speaker 1: and associated ideas rather than from imagination, he will never
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  Speaker 1: be able to invent his answers as quickly as you
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  Speaker 1: can frame your questions and at the same time correctly
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  Speaker 1: estimate the bearing his present answer may have upon those
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  Speaker 1: that have preceded it. If you have the requisite skill
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  Speaker 1: to pursue this method of questioning, you will be sure
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  Speaker 1: to land him in a maze of self contradictions from
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  Speaker 1: which he will never be able to act extricate himself.
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  Speaker 1: Some witnesses, though unwilling to perjure themselves, are yet determined
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  Speaker 1: not to tell the whole truth if they can help it,
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  Speaker 1: owing to some personal interest in or relationship to the
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  Speaker 1: party on whose behalf they are called to testify. If
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  Speaker 1: you are instructed that such a witness, generally a woman
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  Speaker 1: is in possession of the fact you want, and can
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  Speaker 1: help you. If she chooses it is your duty to
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  Speaker 1: draw it out of her. This requires much patience and ingenuity.
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  Speaker 1: If you put the direct question to her at once,
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  Speaker 1: you will probably receive a don't remember answer, or she
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  Speaker 1: may even indulge her conscience in a mental reservation and
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  Speaker 1: pretend a willingness but inability to answer. You must approach
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  Speaker 1: the subject by slow stages. Begin with matters remotely connected
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  Speaker 1: with the important fact you are aiming at she will
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  Speaker 1: relate these, not perhaps realizing on the spur of the
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  Speaker 1: moment exactly where they will lead her. Having admitted that much,
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  Speaker 1: you can lead her nearer and nearer by successive approaches
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  Speaker 1: to the gist of the matter, until you have her
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  Speaker 1: in such a dilemma that she must either tell you
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  Speaker 1: what she had intended to conceal, or else openly commit perjury.
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  Speaker 1: When she leaves the witness chair, you can almost hear
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  Speaker 1: her whisper to her friends. I never intended to tell it,
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  Speaker 1: but that man put me in such a position. I
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  Speaker 1: simply had to tell or admit that I was lying.
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  Speaker 1: In all your cross examinations, never lose control of the witness.
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  Speaker 1: Confine his answers to the exact questions you ask. He
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  Speaker 1: will try to dodge direct answers, or, if forced to
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  Speaker 1: answer directly, will attempt to add a qualification or an explanation,
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  Speaker 1: which will rob his answer of the benefit it might
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  Speaker 1: otherwise be to you. And lastly, most important of all,
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  Speaker 1: let me repeat the injunction to be ever on the
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  Speaker 1: alert for a good place to stop. Nothing can be
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  Speaker 1: more important than to close your examination with a triumph.
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  Speaker 1: So many lawyers succeed in catching a witness in a
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  Speaker 1: serious contradiction, but not satisfied with this, go on asking
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  Speaker 1: questions and taper off their examination until the effect upon
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  Speaker 1: the jury of their former advantage is lost altogether. Stop
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  Speaker 1: with a victory is one of the maxims of cross examination.
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  Speaker 1: If you have done nothing more than to expose an
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  Speaker 1: attempt to deceive on the part of the witness, you
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  Speaker 1: have gone a long way toward discrediting him with your jury.
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  Speaker 1: Jurymen are apt to regard a witness as a whole.
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  Speaker 1: Either they believe him or they don't. If they distrust him,
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  Speaker 1: they are likely to disregard his testimony altogether. Though much
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  Speaker 1: of it may have been true, the fact that remains
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  Speaker 1: uppermost in their minds is that he attempted to deceive them,
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  Speaker 1: or that he left the witness stand with a lie
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  Speaker 1: upon his lips, or after he had displayed his ignorance
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  Speaker 1: to such an extent that the entire audience laughed at him. Thereafter,
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  Speaker 1: his evidence is dismissed from the case, so far as
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  Speaker 1: they are concerned. Erskine once wasted a whole day in
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  Speaker 1: trying to expose to a jury the lack of mental
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  Speaker 1: balance of a witness until a physician who was assisting
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  Speaker 1: him suggested that Erskine ask the witness whether he did
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  Speaker 1: not believe himself to be Jesus Christ. This question was
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  Speaker 1: put by Erskine very cautiously and with studied humility, accompanied
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  Speaker 1: by a request for forgiveness for the indecency of the question.
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  Speaker 1: The witness, who was at once taken unawares amid breathless silence,
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  Speaker 1: and with great solemnity, exclaimed I am the Christ, which
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  Speaker 1: soon ended the case. End of chapter six