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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER II:
THE MANNER OF CROSS-EXAMINATION

It needs but the simple statement of the nature of cross-examination to demonstrate its indispensable character in all trials of questions of fact.  No cause reaches the stage of litigation unless there are two sides to it.  If the witnesses on one side deny or qualify the statements made by those on the other, which side is telling the truth?  Not necessarily which side is offering perjured testimony, there is far less intentional perjury in the courts than the inexperienced would believe, but which side is honestly mistaken?  for, on the other hand, evidence itself is far less trustworthy than the public usually realizes.  The opinions of which side are warped by prejudice or blinded by ignorance?  Which side has had the power or opportunity of correct observation?  How shall we tell, how make it apparent to a jury of disinterested men who are to decide between the litigants?  Obviously, by the means of cross-examination.

If all 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 whole truth, and nothing but the truth,” and if all advocates on either side 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 cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions. 

The system is as old as the history of nations.  Indeed, 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 is generally considered to be the most difficult branch of the multifarious duties of the advocate.  Success in the art, as some one has said, comes more often to the happy possessor of a genius for it.  Great lawyers have often failed lamentably in it, while marvellous success has crowned the efforts of those who might otherwise have been regarded as of a mediocre grade in the profession.  Yet personal experience and the emulation of others trained in the art, are the surest means of obtaining proficiency in this all-important prerequisite of a competent trial lawyer. 

It requires the greatest ingenuity; a habit of logical thought; clearness of perception in general; infinite patience and self-control; power to read men’s minds intuitively, to judge of their characters by their faces, to appreciate their motives; ability to act with force and precision; a masterful knowledge of the subject-matter itself; an extreme caution; and, above all, the instinct to discover the weak point in the witness under examination. 

One has to deal with a prodigious variety of witnesses testifying under an infinite number of differing circumstances.  It involves all shades and complexions of human morals, human passions, and human intelligence.  It is a mental duel between counsel and witness. 

In discussing the methods to employ when cross-examining a witness, let us imagine ourselves at work in the trial of a cause, and at the close of the direct examination of a witness called by our adversary.  The first inquiry would naturally be, Has the witness testified to anything that is material against us?  Has his testimony injured our side of the case?  Has he made an impression with the jury against us?  Is it necessary for us to cross-examine him at all? 

Before dismissing a witness, however, the possibility of being able to elicit some new facts in our own favor should be taken into consideration.  If the witness is apparently truthful and candid, this can be readily done by asking plain, straightforward questions.  If, however, there is any reason to doubt the willingness of the witness to help develop the truth, it may be necessary to proceed with more caution, and possibly to put the witness in a position where it will appear to the jury that he could tell a good deal if he wanted to, and then leave him.  The jury will thus draw the inference that, had he spoken, it would have been in our favor. 

But suppose the witness has testified to material facts against us, and it becomes our duty to break the force of his testimony, or abandon all hope of a jury verdict.  How shall 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 two instances would naturally be very different.  There is a marked distinction between discrediting the testimony and discrediting the witness.  It is largely a matter of instinct on the part of the examiner.  Some people call it the language of the eye, or the tone of the voice, or the countenance of the witness, or his manner of testifying, or all combined, that betrays the wilful perjurer.  It is difficult to say exactly what it is, excepting that constant practice seems to enable a trial lawyer to form a fairly accurate judgment on this point.  A skilful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary.  Every expression of his face, especially his mouth, even every movement of his hands, his manner of expressing himself, his whole bearing all help the examiner to arrive at an accurate estimate of his integrity. 

Let us assume, then, that we have been correct in our judgment of this particular witness, and that he is 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 of the jury.  How shall we go about it?  This brings us at once to the first important factor in our discussion, the manner of the cross-examiner. 

It is absurd to suppose that any witness who has sworn positively to a certain set of facts, even if he has inadvertently stretched the truth, is going to be readily induced by a lawyer to alter them and acknowledge his mistake.  People as a rule do not reflect upon their meagre opportunities for observing facts, and rarely suspect the frailty of their 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 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 at the start, that he distrusts his integrity, he will straighten himself in the witness chair and mentally defy him at once.  If, on the other hand, the counsel’s manner is 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 his testimony in a fairminded spirit, which, if the cross-examiner is clever, will soon disclose the weak points in the testimony.  The sympathies of the jury are invariably on the side of the witness, and they are quick to resent any discourtesy toward him.  They are willing to admit his mistakes, if you can make them apparent, but are slow to believe him guilty of perjury.  Alas, how often this is lost sight of in our daily court experiences! One is constantly brought face to face with lawyers who act as if they thought that every one who testifies against their side of the case is committing willful perjury.  No wonder they accomplish so little with their CROSS-examination! By their shouting, brow-beating style they often confuse the wits of the witness, it is true; but they fail to discredit him with the jury.  On the contrary, they elicit sympathy for the witness they are attacking, and little realize that their “vigorous cross-examination,” at the end of which they sit down with evident self-satisfaction, has only served to close effectually the mind of at least one fairminded juryman against their side of the case, and as likely as not it has brought to light some important fact favorable to the other side which had been overlooked in the examination-in-chief. 

There is a story told of Reverdy Johnson, who once, in the trial of a case, twitted a brother lawyer with feebleness of memory, and received the prompt retort, “Yes, Mr. Johnson; but you will please remember that, unlike the lion in the play, I have something more to do than roar”

The only lawyer I ever heard employ this roaring method successfully was Benjamin F.  Butler.  With him politeness, or even humanity, was out of the question.  And it has been said of him that “concealment and equivocation were scarcely possible to a witness under the operation of his methods.”  But Butler had a wonderful personality.  He was aggressive and even pugnacious, but picturesque withal witnesses were afraid of him.  Butler was popular with the masses; he usually had the numerous “hangers-on “in the court room on his side of the case from the start, and each little point he would make with a witness met with their ready and audible approval.  This greatly increased the embarrassment of the witness and gave Butler a decided advantage.  It must be remembered also that Butler had a contempt for scruple which would hardly stand him in good stead at the present time.  Once he was cross questioning a witness in his characteristic manner.  The judge interrupted to remind him that the witness was a Harvard professor.  “I know it, your Honor,” replied Butler; “we hanged one of them the other day.”  [1]

On the other hand, it has been said of Rufus Choate, whose art and graceful qualities of mind certainly entitle him to the foremost rank among American advocates, that in the cross-examination of witnesses, “He never aroused opposition on the part of the witness by attacking him, but disarmed him by the quiet and courteous manner in which he pursued his examination.  He was quite sure, before giving him up, to expose the weak parts of his testimony or the bias, if any, which detracted from the confidence to be given it.”  [2]  [One of Choate’s bon mots was that “a lawyer’s vacation consisted of the space between the question put to a witness and his answer.”  ]

Judah P.  Benjamin, “the eminent lawyer of two continents,” used to cross-examine with his eyes.  “No witness could look into Benjamin’s black, piercing eyes and maintain a lie.” 

Among the English barristers, Sir James Scarlett, Lord Abinger, had the reputation, as a cross-examiner, of having outstripped all advocates who, up to that time, had appeared at the British Bar.  “The gentlemanly ease, the polished courtesy, and the Christian urbanity and affection, with which he proceeded to the task, did infinite mischief to the testimony of witnesses who were striving to deceive, or upon whom he found it expedient to fasten a suspicion.” 

A good advocate should be a good actor.  The most cautious cross-examiner will often elicit a damaging answer.  Now is the time for the greatest self-control.  If you show by your face how the answer hurt, you may lose your case by that one point alone.  How often one sees the cross-examiner fairly staggered by such an answer.  He pauses, perhaps blushes, and after he has 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 as a matter of course, and will fall perfectly flat.  He will proceed with the next question as if nothing had happened, or even perhaps give the witness an incredulous smile, as if to say, “Who do you suppose would believe that for a minute?” 

An anecdote apropos of this point is told of Rufus Choate.  “A witness for his antagonist let fall, with no particular emphasis, a statement of a most important fact from which he saw that inferences greatly damaging to his client’s case might be drawn if skilfully used.  He suffered the witness to go through his statement and then, as if he saw in it something of great value to himself, requested him to repeat it carefully that he might take it down correctly.  He as carefully avoided cross-examining the witness, and in his argument made not the least allusion to his testimony.  When the opposing counsel, in his close, came to that part of his case in his argument, he was so impressed with the idea that Mr. Choate had discovered that there was something in that testimony which made in his favor, although he could not see how, that he contented himself with merely remarking that though Mr. Choate had seemed to think that the testimony bore in favor of his client, it seemed to him that it went to sustain the opposite side, and then went on with the other parts of his case.”  [3]

It is the love of combat which every man possesses that fastens the attention of the jury upon the progress of the trial.  The counsel who has a pleasant personality; who speaks with apparent frankness; who appears to be an earnest searcher after truth; who is courteous to those who testify against him; who avoids delaying constantly the progress of the trial by innumerable objections and exceptions to perhaps incompetent but harmless evidence; who seems to know what he is about and sits down when he has accomplished it, exhibiting a spirit of fair play on all occasions he it is who creates an atmosphere in favor of the side which he represents, a powerful though unconscious influence with the jury in arriving at their verdict.  Even if, owing to the weight of testimony, the verdict is against him, yet the amount will be far less 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 expression; who possesses a monotonous, rasping, penetrating voice; who presents a slovenly, unkempt personal appearance; who is prone to take unfair advantage of witness or counsel, and seems determined to win at all hazards soon prejudices a jury against himself and 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; he can often create an atmosphere which will obscure much evidence that would otherwise tell against him.  This is part of the “generalship of a case “in its progress to the argument, which is of such vast consequence.  There is eloquence displayed in the examination of witnesses as well as on the argument.  “There is matter in manner?  I do not mean 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 make and centres it upon your own idiosyncrasies of manner and speech.  As the man who was somewhat deaf and could not get near enough to Henry Clay in one of his finest efforts, exclaimed, “I didn’t hear a word he said, but, great Jehovah, didn’t he make the motions!”

The very intonations of voice and the expression of face of the cross-examiner can be made to produce a marked effect upon the jury and enable them to appreciate fully a point they might otherwise lose altogether. 

“Once, when cross-examining a witness by the name of Sampson, who was sued for libel as editor of the Referee, Russell asked the witness a question which he did not answer.  ‘Did you hear my question?’ said Russell in a low voice.  ‘I did,’ said Sampson.  ‘Did you understand it?’ asked Russell, in a still lower voice.  ‘I did,’ said Sampson.  ‘Then,’ said Russell, raising his voice to its highest pitch, and looking as if he would spring from his place and seize the witness by the throat, ‘why have you not answered it?  Tell the jury why you have not answered it.’ A thrill of excitement ran through the court room.  Sampson was overwhelmed, and he never pulled himself together again.” [4]

Speak distinctly yourself, and compel your witness to do so.  Bring out your points so clearly that men of the most ordinary intelligence can understand them.  Keep your audience the jury ^always interested and on the alert.  Remember it is the minds of the jury you are addressing, even though your question is put to the witness.  Suit the modulations of your voice to the subject under discussion.  Rufus Choate’s voice would seem to 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 of its variety and all of its resonance.  The contrast between his tone in examining and that of the counsel who followed him was very marked. 

“Mr. Choate’s appeal to the jury began long before his final argument; it began when he first took his seat before them and looked 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 their seats, and separated from them only by a narrow space for passage.  There he sat, calm, contemplative; in the midst of occasional noise and confusion solemnly unruffled; always making some little headway either with the jury, the court, or the witness; never doing a single thing which could by possibility lose him favor, ever doing some little thing to win it; smiling benignantly upon the counsel when a good thing was said; smiling sympathizingly upon the jury when any juryman laughed or made an inquiry; wooing them all the time with his magnetic glances as a lover might woo 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 them through their tedious investigation; never that of an expert combatant, intent on victory, and looking upon them as only instruments for its attainment.”  [5]

Continue to the next chapter in "The Art of Cross-Examination"


[1] “Life Sketches of Eminent Lawyers,”  G.  J.  Clark, Esq.

[2] “Memories of Rufus Choate,” Neilson.

[3] “Memories of Rufus Choate,” Neilson.

[4] “Life of Lord Russell,” O’Brien.

[5] “Reminiscences of Rufus Choate,” Parker.

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