Latest / Art of Cross-Examination / 08 - Art of Cross-Examination by Francis Wellman

Transcript

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

0:00
Speaker 1: Chapter eight of the Art of cross Examination by Francis Wellman.
0:06
Speaker 1: This LibriVox recording is in the public domain. Chapter eight,
0:10
Speaker 1: cross Examination to Credit and its Abuses. The preceding chapters
0:16
Speaker 1: have been devoted to the legitimate uses of cross examination,
0:21
Speaker 1: the development of truth and exposure of fraud. Cross Examination
0:26
Speaker 1: as to credit has also its legitimate use to accomplish
0:31
Speaker 1: the same end. But this powerful weapon for good has
0:35
Speaker 1: almost equal possibilities for evil. It is proposed in the
0:41
Speaker 1: present chapter to demonstrate that cross examination as to credit
0:46
Speaker 1: should be exercised with great care and caution, and also
0:50
Speaker 1: to discuss some of the abuses of cross examination by
0:54
Speaker 1: attorneys under the guise and plea of cross examination as
0:58
Speaker 1: to credit. Questions which throw no light upon the real
1:03
Speaker 1: issues in the case, nor upon the integrity or credit
1:07
Speaker 1: of the witness under examination, but which expose misdeeds perhaps
1:13
Speaker 1: long since repented of and lived down, are often put
1:17
Speaker 1: for the sole purpose of causing humiliation and disgrace. Such
1:23
Speaker 1: inquiries into private life, private affairs, or domestic infelicities, perhaps
1:30
Speaker 1: involving innocent persons who have nothing to do with the
1:33
Speaker 1: particular litigation, and who have no opportunity for explanation nor
1:39
Speaker 1: means of redress, form no legitimate part of the cross
1:43
Speaker 1: examiner's art. The lawyer who allows himself to become the
1:48
Speaker 1: mouthpiece of the spite or revenge of his client may
1:52
Speaker 1: inflict untold suffering and unwarranted torture. Such questions may be
1:59
Speaker 1: within them the legal rights of counsel in certain instances.
2:03
Speaker 1: But the lawyer who allows himself to be led astray
2:06
Speaker 1: by his zeal or by the solicitations of his client
2:11
Speaker 1: at his elbow, ready to make any sacrifice to humiliate
2:16
Speaker 1: his adversary, thereby debauches his profession and surrenders his self
2:22
Speaker 1: respect for which an occasional verdict one from an impressionable
2:27
Speaker 1: jury by such methods is a poor recompense. To warrant
2:33
Speaker 1: an investigation into matters irrelevant to the main issues in
2:37
Speaker 1: the case, and calculated to disgrace the witness or prejudice
2:42
Speaker 1: him in the eyes of the jury, They must at
2:45
Speaker 1: least be such as tend to impeach his general moral
2:49
Speaker 1: character and his credibility as a witness. There can be
2:54
Speaker 1: no sanction for questions that tend simply to degrade the
2:58
Speaker 1: witness personally, and which can have no possible bearing upon
3:03
Speaker 1: his veracity. In all that has proceeded, we have gone
3:08
Speaker 1: upon the presumption that the cross examiner's art would be
3:12
Speaker 1: used to further his client's cause by all fair and
3:16
Speaker 1: legitimate means, not by misrepresentation in sinuation, or by knowingly
3:22
Speaker 1: putting a witness in a false light before a jury.
3:27
Speaker 1: These methods doubtless succeed at times, but he who practices
3:31
Speaker 1: them acquires the reputation with astounding rapidity of being smart,
3:38
Speaker 1: and finds himself discredited not only with the court, but
3:42
Speaker 1: in some almost unaccountable way, with the very juries before
3:47
Speaker 1: whom he appears. Let him once get the reputation of
3:51
Speaker 1: being unfair among the habitues of the court house, and
3:56
Speaker 1: his usefulness to clients as a trial lawyer is gone forever.
4:02
Speaker 1: Honesty is the best policy quite as much with the
4:05
Speaker 1: advocate as in any of the walks of life. Counsel
4:10
Speaker 1: may have in his possession material for injuring the witness,
4:14
Speaker 1: but the propriety of using it often becomes a serious question,
4:20
Speaker 1: even in cases where its use is otherwise perfectly legitimate.
4:26
Speaker 1: An outrage to the feelings of a witness may be
4:29
Speaker 1: quickly resented by a jury and sympathy take the place
4:34
Speaker 1: of disgust. Then too, one has to reckon with the judge,
4:38
Speaker 1: and the indignation of a strong judge is not wisely provoked.
4:44
Speaker 1: Nothing could be more unprofessional than for counsel to ask
4:48
Speaker 1: questions which disgrace not only the witness but a host
4:52
Speaker 1: of innocent persons, for the mere reason that the client
4:57
Speaker 1: wishes them to be asked. There could be no better
5:01
Speaker 1: example of the folly of yielding to a client's hatred
5:05
Speaker 1: or desire for revenge than the outcome of the famous
5:09
Speaker 1: case in which Missus Edwin Forrest was granted a divorce
5:13
Speaker 1: against her husband, the distinguished tragedian Missus Forrest, a lady
5:19
Speaker 1: of culture and refinement, demanded her divorce upon the ground
5:23
Speaker 1: of adultery, and her husband had made counter charges against her.
5:28
Speaker 1: At the trial in eighteen fifty one, Charles O'Connor, council
5:33
Speaker 1: for Missus Forrest, called as his first witness the husband himself,
5:38
Speaker 1: and asked him concerning his infidelities in connection with a
5:42
Speaker 1: certain actress. John van Buren, who appeared for Edwin Forrest,
5:48
Speaker 1: objected to the question on the ground that it required
5:51
Speaker 1: his client to testify to matters that might incriminate him.
5:55
Speaker 1: The question was not allowed, and the husband left the
5:58
Speaker 1: witness stand. After calling a few unimportant witnesses, O'Connor rested
6:04
Speaker 1: the case for plaintiff, without having elicited any tangible proof
6:09
Speaker 1: against the husband. Had a motion to take the case
6:13
Speaker 1: from the jury been made at this time, it would
6:16
Speaker 1: of necessity have been granted and the wife's suit would
6:21
Speaker 1: have failed. It is said that when mister van Buren
6:24
Speaker 1: was about to make such emotion and end the case,
6:28
Speaker 1: mister Forrest directed him to proceed with the testimony for
6:32
Speaker 1: the defense and developed the nauseating evidence he had accumulated
6:38
Speaker 1: against his wife. Van Buren yielded to his client's wishes,
6:43
Speaker 1: and for days and weeks continued to call witness after
6:47
Speaker 1: witness to the disgusting details of missus Forrest's alleged debauchery.
6:53
Speaker 1: The case attracted great public attention and was widely reported
6:57
Speaker 1: in the newspapers. The pup, as so often happens, took
7:02
Speaker 1: the opposite view of the evidence from the one the
7:06
Speaker 1: husband had anticipated. Its very revolting character aroused universal sympathy
7:13
Speaker 1: on the wife's behalf. Mister O'Connor soon found himself flooded
7:18
Speaker 1: with offers of evidence, anonymous and otherwise against the husband,
7:24
Speaker 1: and when Van Buren finally closed his attack upon the wife,
7:29
Speaker 1: O'Connor was enabled in rebuttal to bring such an avalanche
7:34
Speaker 1: of convincing testimony against the defendant that the jury promptly
7:39
Speaker 1: exonerated Missus Forrest and granted her the divorce. At the
7:44
Speaker 1: end of the first day's trial. The case could have
7:47
Speaker 1: been decided in favor of the husband had a simple
7:51
Speaker 1: motion to that effect been made, but yielding to his
7:55
Speaker 1: client's hatred of his wife, and after a hard fought
7:58
Speaker 1: trial of twenty three days, mister van Buren found both
8:03
Speaker 1: himself and his client ignominiously defeated. This eerr of mister
8:10
Speaker 1: van Buren's was widely commented on by the profession at
8:14
Speaker 1: the time. He had but lately resigned his office at
8:18
Speaker 1: Albany as Attorney General, and up to the time of
8:22
Speaker 1: this trial had acquired no little prestige in his practice
8:26
Speaker 1: in the City of New York, which, however, he never
8:30
Speaker 1: seemed to regain after his fatal blunder in the Forest
8:35
Speaker 1: divorce case. The abuse of cross examination has been widely
8:40
Speaker 1: discussed in England in recent years partly in consequence of
8:44
Speaker 1: the cross examination of a Missus Bravo, whose husband had
8:49
Speaker 1: died by poison. He had lived unhappily with her on
8:53
Speaker 1: account of the attentions of a certain physician during the
8:57
Speaker 1: inquiry into the circumstances of her husband's death. The story
9:02
Speaker 1: of the wife's intrigue was made public through her cross examination.
9:07
Speaker 1: Sir Charles Russell, who was then regarded as standing at
9:11
Speaker 1: the head of the bar, both in the extent of
9:14
Speaker 1: his business and in his success in court, and Sir
9:18
Speaker 1: Edward Clarke, one of Her Majesty's law officers with a
9:22
Speaker 1: high reputation for ability and jury trials, were severely criticized
9:27
Speaker 1: as forensic bullies and complained of as quote lending the
9:33
Speaker 1: authority of their example to the abuse of cross examination
9:37
Speaker 1: to credit, which was quickly followed by barristers of inferior positions,
9:43
Speaker 1: among whom the practice was spreading of assailing witnesses with
9:47
Speaker 1: what was not unfairly called a system of innuendos, suggestions
9:52
Speaker 1: and bullying from which sensitive persons recoil. And Mister Charles Gill,
10:00
Speaker 1: one of the many imitators of Russell's domineering style, was
10:04
Speaker 1: criticized as quote, bettering the instructions of his elders. The
10:10
Speaker 1: complaint against Russell was that, by his practices as displayed
10:15
Speaker 1: in the Osborne case robbery of jewels, not only may
10:19
Speaker 1: a man's or a woman's whole past be laid bare
10:23
Speaker 1: to malignant comment and public curiosity. But there is no
10:28
Speaker 1: means afforded by the courts of showing how the facts
10:32
Speaker 1: really stood, or of producing evidence to repel the damaging charges.
10:38
Speaker 1: Lord Bramwell, in an article published originally in nineteenth century
10:43
Speaker 1: for February eighteen ninety two and republished in legal periodicals
10:48
Speaker 1: all over the world, strongly defends the methods of Sir
10:52
Speaker 1: Charles Russell and his imitators. Lord Bramwell claimed to speak
10:57
Speaker 1: after an experience of forty seven years practice at the
11:01
Speaker 1: bar and on the bench, and long acquaintance with the
11:05
Speaker 1: legal profession. Quote. A judge's sentence for a crime, however
11:11
Speaker 1: much repented of, is not the only punishment. There is
11:16
Speaker 1: the consequent loss of character, in addition, which should confront
11:20
Speaker 1: such a person whenever called to the witness stand. Women
11:24
Speaker 1: who carry on illicit intercourse and whose husbands die of
11:28
Speaker 1: poison must not complain at having the veil that ordinarily
11:33
Speaker 1: screens a woman's life from public inquiry rudely torn aside.
11:39
Speaker 1: It is well for the sake of truth that there
11:41
Speaker 1: should be a wholesome dread of cross examination. It should
11:46
Speaker 1: not be understood to be a trivial matter, but rather
11:49
Speaker 1: looked upon as a trying ordeal. None but the sore
11:55
Speaker 1: feel the probe unquote. Such were some of the many
11:59
Speaker 1: arguing of the various upholders of broad license and examinations
12:04
Speaker 1: to credit. Lord Chief Justice Cockburn took the opposite view
12:09
Speaker 1: of the question. Quote. I deeply deplore that members of
12:14
Speaker 1: the bar so frequently unnecessarily put questions affecting the private
12:19
Speaker 1: life of witnesses, which are only justifiable when they challenge
12:24
Speaker 1: the credibility of a witness. I have watched closely the
12:28
Speaker 1: administration of justice in France, Germany, Holland, Belgium, Italy, and
12:34
Speaker 1: a little in Spain, as well as in the United States,
12:37
Speaker 1: in Canada and in Ireland, and in no place have
12:41
Speaker 1: I seen witnesses so badgered, browbeaten, and in every way
12:46
Speaker 1: so brutally maltreated as in England. The way in which
12:51
Speaker 1: we treat our witnesses is a national disgrace and a
12:55
Speaker 1: serious obstacle instead of aiding the ends of justice. In England,
13:01
Speaker 1: the most honorable and conscientious men loathe the witness box.
13:07
Speaker 1: Men and women of all ranks shrink with terror from
13:11
Speaker 1: subjecting themselves to the wanton, insult and bullying misnamed cross
13:17
Speaker 1: examination in our English courts. Watch the tremor that passes
13:22
Speaker 1: the frames of many persons as they enter the witness box.
13:26
Speaker 1: I remember to have seen so distinguished a man as
13:30
Speaker 1: the late Sir Benjamin Brodie shiver as he entered the
13:33
Speaker 1: witness box. I dare say his apprehension amounted to exquisite torture.
13:40
Speaker 1: Witnesses are just as necessary for the administration of justice
13:45
Speaker 1: as judges or jurymen, and are entitled to be treated
13:49
Speaker 1: with the same consideration, and their affairs and private lives
13:54
Speaker 1: ought to be held as sacred from the gaze of
13:57
Speaker 1: the public as those of the judges or the jurymen.
14:02
Speaker 1: I venture to think that it is the duty of
14:04
Speaker 1: a judge to allow no questions to be put to
14:08
Speaker 1: a witness unless such as are clearly pertinent to the
14:13
Speaker 1: issue before the court, except where the credibility of the
14:17
Speaker 1: witness is deliberately challenged by counsel, and that the credibility
14:22
Speaker 1: of a witness should not be wantonly challenged on slight grounds.
14:29
Speaker 1: The propriety or impropriety of questions to credit is of course,
14:35
Speaker 1: largely addressed to the discretion of the court. Such questions
14:39
Speaker 1: are generally held to be fair when, if the imputation
14:43
Speaker 1: they convey be true, the opinion of the court would
14:47
Speaker 1: be seriously affected as to the credibility of the witness
14:51
Speaker 1: on the matter to which he testifies. They are unfair
14:56
Speaker 1: when the imputation refers to matters so remote in time
15:00
Speaker 1: or of such character that its truth would not affect
15:04
Speaker 1: the opinion of the court, or if there be a
15:07
Speaker 1: great disproportion between the importance of the imputation and the
15:12
Speaker 1: importance of the witness's evidence. A judge, however, to whose
15:17
Speaker 1: discretion such questions are addressed in the first instance, can
15:21
Speaker 1: have but an imperfect knowledge of either side of the
15:25
Speaker 1: case before him. He cannot always be sure, without hearing
15:29
Speaker 1: all the facts, whether the questions asked would or would
15:34
Speaker 1: not tend to develop the truth rather than simply degrade
15:38
Speaker 1: the witness. Then again, the mischief is often done by
15:42
Speaker 1: the mere asking of the question, even if the judge
15:45
Speaker 1: directs the witness not to answer. The insinuation has been
15:50
Speaker 1: made publicly, the dirt has been thrown. The discretion must therefore,
15:55
Speaker 1: after all, be largely left to the lawyer himself. He
16:00
Speaker 1: is bound in honor and out of respect to his profession,
16:04
Speaker 1: to consider whether the question ought in conscience to be asked, whether,
16:09
Speaker 1: in his own honest judgment it renders the witness unworthy
16:13
Speaker 1: of belief under oath before he allows himself to ask it.
16:19
Speaker 1: It is much safer, for example, to proceed upon the
16:22
Speaker 1: principle that the relations between the sexes has no bearing
16:27
Speaker 1: whatever upon the probability of the witness telling the truth,
16:32
Speaker 1: unless in the extreme case of an abandoned woman. In
16:37
Speaker 1: criminal prosecutions, the district attorney is usually regarded by the
16:42
Speaker 1: jury much in the light of a judicial officer, and
16:46
Speaker 1: as such unprejudiced and impartial. Any slur or suggestion adverse
16:52
Speaker 1: to a prisoner's witness coming from this source therefore has
16:57
Speaker 1: an added power for evil, and is calculated to do
17:01
Speaker 1: injustice to the defendant. There have been many flagrant abuses
17:07
Speaker 1: of this character in the criminal courts of our own city.
17:11
Speaker 1: Is it not a fact that you were not there
17:13
Speaker 1: at all? Has all this been written out for you?
17:17
Speaker 1: Is it not a fact that you and your husband
17:19
Speaker 1: have concocted this whole story? You have been a witness
17:24
Speaker 1: for your husband in every lawsuit he has had, Have
17:27
Speaker 1: you not? Were all questions that were recently criticized by
17:32
Speaker 1: the Court on appeal as innuendo and calculated to prejudice
17:37
Speaker 1: the defendant by the Michigan Supreme Court in the People
17:42
Speaker 1: versus Cahoun, and held sufficient in connection with other similar
17:47
Speaker 1: errors to set the conviction aside. Assuming that the material
17:52
Speaker 1: with which you propose to assail the credibility of a
17:55
Speaker 1: witness fully justifies the attack, the question then arises how
18:01
Speaker 1: to use this material to the best advantage. The sympathies
18:06
Speaker 1: of juries are keen toward those obliged to confess their crimes.
18:10
Speaker 1: On the witness stand, the same matters may be handled
18:14
Speaker 1: to the advantage or positive disadvantage of the cross examiner.
18:19
Speaker 1: If you hold in your possession the evidence of the
18:22
Speaker 1: witness's conviction, for example, but allow him to understand that
18:27
Speaker 1: you know his history, he will surely get the better
18:31
Speaker 1: of you, conceal it from him, and he will likely
18:35
Speaker 1: try to conceal it from you, or lie about it
18:39
Speaker 1: if necessary. I don't suppose you've ever been in trouble?
18:43
Speaker 1: Have you will bring a quick reply. What trouble? Oh,
18:48
Speaker 1: I can't refer to any particular trouble. I mean generally,
18:52
Speaker 1: have you ever been in jail? The witness will believe
18:56
Speaker 1: you know nothing about him and deny it, or, if
19:00
Speaker 1: he has been many times convicted, will admit some small
19:04
Speaker 1: offense and attempt to conceal everything but what he suspects
19:09
Speaker 1: you know already about him. This very attempt to deceive,
19:14
Speaker 1: if exposed, will destroy him with the jury far more
19:18
Speaker 1: effectually than the knowledge of the offenses he has committed.
19:24
Speaker 1: On the other hand, suppose you taunt him with his
19:27
Speaker 1: crime in the first instance ten to one, he will
19:31
Speaker 1: admit his wrongdoing in such a way as to arouse
19:35
Speaker 1: toward himself the sympathy of the jury and their resentment
19:40
Speaker 1: toward the lawyer who was unchristian enough to uncover to
19:44
Speaker 1: public view offenses long since forgotten. Chief Baron Pollock once
19:50
Speaker 1: presided at a case where the witness was asked about
19:53
Speaker 1: a conviction years gone by. Though his the witness's honesty
19:59
Speaker 1: was not, the Baron burst into tears at the answer
20:04
Speaker 1: of the witness in the Bellevue Hospital case, the details
20:09
Speaker 1: of which are fully described in a subsequent chapter, and
20:13
Speaker 1: during the cross examination of the witness Chambers, who was
20:16
Speaker 1: confined in the Pavilion for the Insane at the time,
20:20
Speaker 1: the writer was imprudent enough to ask the witness to
20:24
Speaker 1: explain to the jury how he came to be confined
20:27
Speaker 1: on Ward's Island, only to receive the pathetic reply, I
20:33
Speaker 1: was sent there because I was insane. You see, my
20:35
Speaker 1: wife was very ill with locomotive ataxia. She had been
20:40
Speaker 1: ill a year. I was her only nurse. I tended
20:45
Speaker 1: her day and night. We loved each other dearly. I
20:49
Speaker 1: was greatly worried over her long illness and frightful suffering.
20:54
Speaker 1: The result was I worried too deeply. She had been
20:59
Speaker 1: very good to me. I overstrained myself. My mind gave way.
21:05
Speaker 1: But I am better now. Thank you. End of chapter
21:09
Speaker 1: eight