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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER VI
THE SEQUENCE OF CROSS-EXAMINATION

Much depends upon the sequence in which one conducts the cross-examination of a dishonest witness.  You should never hazard the important question until you have laid the foundation for it in such a way that, when confronted with the fact, the witness can neither deny nor explain it.  One often sees the most damaging documentary evidence, in the form of letters or affidavits, fall absolutely flat as exponents of falsehood, merely because of the unskilful way in which they are handled.  If you have in your possession a letter written by the witness, in which he takes an opposite position on some part of the case to the one he has just sworn to, avoid the common error of showing the witness the letter for identification, and then reading it to him with the inquiry, “What have you to say to that?”  During the reading of his letter the witness will be collecting his thoughts and getting ready his explanations in anticipation of the question that is to follow, and the effect of the damaging letter will be lost. 

The correct method of using such a letter is to lead the witness quietly into repeating the statements he has made in his direct testimony, and which his letter contradicts.  “I have you down as saying so and so; will you please repeat it?  I am apt to read my notes to the jury, and I want to be accurate.”  The witness will repeat his statement.  Then write it down and read it off to him.  “Is that correct?  Is there any doubt about it?  For if you have any explanation or qualification to make, I think you owe it to us, in justice, to make it before I leave the subject.”  The witness has none.  He has stated the fact; there is nothing to qualify; the jury rather like his straightforwardness.  Then let your whole manner toward him suddenly change, and spring the letter upon him.  “Do you recognize your own handwriting, sir?  Let me read you from your own letter, in which you say,” and afterward “Now, what have you to say to that?”  You will make your point in such fashion that the jury will not readily forget it.  It is usually expedient, when you have once made your point, to drop it and go to something else, lest the witness wriggle out of it.  But when you have a witness under oath, who is orally contradicting a statement he has previously made, when not under oath, but in his own handwriting, you then have him fast on the hook, and there is no danger of his getting away; now is the time to press your advantage.  Put his self-contradictions to him in as many forms as you can invent:

“Which statement is true?”  “Had you forgotten this letter when you gave your testimony today?”  “Did you tell your counsel about it?”  “Were you intending to deceive him?”  “What was your object in trying to mislead the jury?” [1]

“Some men,” said a London barrister who often saw Sir Charles Russell in action, “get in a bit of the nail, and there they leave it hanging loosely about until the judge or some one else pulls it out.  But when Russell got in a bit of the nail, he never stopped until he drove it home.  No man ever pulled that nail out again.” 

Sometimes it is advisable to deal the witness a stinging blow with your first few questions; this, of course, assumes that you have the material with which to do it.  The advantage of putting your best point forward at the very start is twofold.  First, the jury have been listening to his direct testimony and have been forming their own impressions of him, and when you rise to cross-examine, they are keen for your first questions.  If you “land one “in the first bout, it makes far more impression on the jury than if it came later on when their attention has begun to lag, and when it might only appear as a chance shot.  The second, and perhaps more important, effect of scoring on the witness with the first group of questions is that it makes him afraid of you and less hostile in his subsequent answers, not knowing when you will trip him again and give him another fall.  This will often enable you to obtain from him truthful answers on subjects about which you are not prepared to contradict him. 

I have seen the most determined witness completely lose his presence of mind after two or three well-directed blows given at the very start of his cross-examination, and become as docile in the examiner’s hands as if he were his own witness.  This is the time to lead the witness back to his original story and give him the opportunity to tone it down or retint it, as it were; possibly even to switch him over until he finds himself supporting your side of the controversy.  This taming of a hostile witness, and forcing him to tell the truth against his will, is one of the triumphs of the cross-examiner’s art.  In a speech to the jury, Choate once said of such a witness, “I brand him a vagabond and a villain; they brought him to curse, and, behold, he hath blessed us altogether.” 

Some witnesses, under this style of examination, lose their tempers completely, and if the examiner only keeps his own and puts his questions rapidly enough, he will be sure to lead the witness into such a web of contradictions as entirely to discredit him with any fair-minded jury.  A witness, in anger, often forgets himself and speaks the truth.  His passion benumbs his power to deceive.  Still another sort of witness displays his temper on such occasions by becoming sullen; he begins by giving evasive answers, and ends by refusing to answer at all.  He might as well go a little farther and admit his perjury at once, so far as the effect on the jury is concerned. 

When, however, you have not the material at hand with which to frighten the witness into correcting his perjured narrative, and yet you have concluded that a cross-examination is necessary, never waste time by putting questions which will enable him to repeat his original testimony in the sequence in which he first gave it.  You can accomplish nothing with him unless you abandon the train of ideas he followed in giving his main story.  Select the weakest points of his testimony and the attendant circumstances he would be least likely to prepare for.  Do not ask your questions in logical order, lest he invent conveniently as he goes along; but dodge him about in his story and pin him down to precise answers on all the accidental circumstances indirectly associated with his main narrative.  As he begins to invent his answers, put your questions more rapidly, asking many unimportant ones to one important one, and all in the same voice.  If he is not telling the truth, and answering from memory and associated ideas rather than from imagination, he will never be able to invent his answers as quickly as you can frame your questions, and at the same time correctly estimate the bearing his present answer may have upon those that have preceded it.  If you have the requisite skill to pursue this method of questioning, you will be sure to land him in a maze of self-contradictions from which he will never be able to extricate himself. 

Some witnesses, though unwilling to perjure themselves, are yet determined not to tell the whole truth if they can help it, owing to some personal interest in, or relationship to, the party on whose behalf they are called to testify.  If you are instructed that such a witness (generally a woman) is in possession of the fact you want and can help you if she chooses, it is your duty to draw it out of her.  This requires much patience and ingenuity.  If you put the direct question to her at once, you will probably receive a “don’t remember “answer, or she may even indulge her conscience in a mental reservation and pretend a willingness but inability to answer.  You must approach the subject by slow stages.  Begin with matters remotely connected with the important fact you are aiming at.  She will relate these, not perhaps realizing on the spur of the moment exactly where they will lead her.  Having admitted that much, you can lead her nearer and nearer by successive approaches to the gist of the matter, until you have her in such a dilemma that she must either tell you what she had intended to conceal or else openly commit perjury.  When she leaves the witness-chair, you can almost hear her whisper to her friends, “I never intended to tell it, but that man put me in such a position I simply had to tell or admit that I was lying.” 

In all your cross-examinations never lose control of the witness; confine his answers to the exact questions you ask.  He will try to dodge direct answers, or if forced to answer directly, will attempt to add a qualification or an explanation which will rob his answer of the benefit it might otherwise be to you.  And lastly, most important of all, let me repeat the injunction to be ever on the alert for a good place to stop.  Nothing can be more important than to close your examination with a triumph.  So many lawyers succeed in catching a witness in a serious contradiction; but, not satisfied with this, go on asking questions, and taper off their examination until the effect upon the jury of their former advantage is lost altogether.  “Stop with a victory “is one of the maxims of cross-examination.  If you have done nothing more than to expose an attempt to deceive on the part of the witness, you have gone a long way toward discrediting him with your jury.  Jurymen are apt to regard a witness as a whole either they believe him or they don’t.  If they distrust him, they are likely to disregard his testimony altogether, though much of it may have been true.  The fact that remains uppermost in their minds is that he attempted to deceive them, or that he left the witness-stand with a lie upon his lips, or after he had displayed his ignorance to such an extent that the entire audience laughed at him.  Thereafter his evidence is dismissed from the case so far as they are concerned. 

Erskine once wasted a whole day in trying to expose to a jury the lack of mental balance of a witness, until a physician who was assisting him suggested that Erskine ask the witness whether he did not believe himself to be Jesus Christ.  This question was put by Erskine very cautiously and with studied humility, accompanied by a request for forgiveness for the indecency of the question.  The witness, who was at once taken unawares, amid breathless silence and with great solemnity exclaimed, “I am the Christ,” which soon ended the case. [2]

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[1] In Chapter XI (infra) is given in detail the cross-examination of the witness Pigott by Sir Charles Russell, which affords a most striking example of the most effective use that can be made of an incriminating letter.

[2] “Curiosities of Law and Lawyers.”

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