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Nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers and alas! not only young ones who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case.
The infinite variety of types of witnesses one meets with in court makes it impossible to lay down any set rules applicable to all cases. One seldom comes in contact with a witness who is in all respects like any one he has ever examined before; it is this that constitutes the fascination of the art. The particular method you use in any given case depends upon the degree of importance you attach to the testimony given by the witness, even if it is false. It may be that you have on your own side so many witnesses who will contradict the testimony, that it is not worth while to hazard the risks you will necessarily run by undertaking an elaborate cross-examination. In such cases by far the better course is to keep your seat and ask no questions at all. Much depends also, as will be readily appreciated, upon the age and sex of the witness. In fact, it may be said that the truly great trial lawyer is he who, while knowing perfectly well the established rules of his art, appreciates when they should be broken. If the witness happens to be a woman, and at the close of her testimony-in-chief it seems that she will be more than a match for the cross-examiner, it often works like a charm with the jury to practise upon her what may be styled the silent cross-examination. Rise suddenly, as if you intended to cross-examine. The witness will turn a determined face toward you, preparatory to demolishing you with her first answer. This is the signal for you to hesitate a moment. Look her over good-naturedly and as if you were in doubt whether it would be worth while to question her and sit down. It can be done by a good actor in such a manner as to be equivalent to saying to the jury, “What’s the use? she is only a woman.”
John Philpot Curran, known as the most popular advocate of his time, and second only to Erskine as a jury lawyer, once indulged himself in this silent mode of cross-examination, but made the mistake of speaking his thoughts aloud before he sat down. “There is no use asking you questions, for I see the villain in your face.” “Do you, sir?” replied the witness with a smile, “I never knew before that my face was a looking-glass.”
Since the sole object of cross-examination is to break the force of the adverse testimony, it must be remembered that a futile attempt only strengthens the witness with the jury. It cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt.
An amusing instance of this occurred in the trial of Alphonse Stephani, indicted for the murder of Clinton G. Reynolds, a prominent lawyer in New York, who had had the management and settlement of his father’s estate. The defence was insanity; but the prisoner, though evidently suffering from the early stages of some serious brain disorder, was still not insane in the legal acceptation of the term. He was convicted of murder in the second degree and sentenced to a life imprisonment.
Stephani was defended by the late William F. Howe, Esq., who was certainly one of the most successful lawyers of his time in criminal cases. Howe was not a great lawyer, but the kind of witnesses ordinarily met with in such cases he usually handled with a skill that was little short of positive genius.
Dr. Allan McLane Hamilton, the eminent alienist, had made a special study of Stephani’s case, had visited him for weeks at the Tombs Prison, and had prepared himself for a most exhaustive exposition of his mental condition. Dr. Hamilton had been retained by Mr. Howe, and was to be put forward by the defence as their chief witness. Upon calling him to the witness-chair, however, he did not question his witness so as to lay before the jury the extent of his experience in mental disorders and his familiarity with all forms of insanity, nor develop before them the doctor’s peculiar opportunities for judging correctly of the prisoner’s present condition. The wily advocate evidently looked upon District Attorney DeLancey Nicoll and his associates, who were opposed to him, as a lot of inexperienced youngsters, who would cross-examine at great length and allow the witness to make every answer tell with double effect when elicited by the state’s attorney. It has always been supposed that it was a preconceived plan of action between the learned doctor and the advocate. In accordance therewith, and upon the examination-in-chief, Mr. Howe contented himself with this single inquiry:
“Dr. Hamilton, you have examined the prisoner at the Bar, have you not?”
“I have, sir,” replied Dr. Hamilton.
“Is he, in your opinion, sane or insane?” continued Mr. Howe.
“Insane,” said Dr. Hamilton.
“You may cross-examine,” thundered Howe, with one of his characteristic gestures. There was a hurried consultation between Mr. Nicoll and his associates.
“We have no questions,” remarked Mr. Nicoll, quietly.
“What!” exclaimed Howe, “not ask the famous Dr. Hamilton a question? Well, I will,” and turning to the witness began to ask him how close a study he had made of the prisoner’s symptoms, etc.; when, upon our objection, Chief Justice Van Brunt directed the witness to leave the witness-box, as his testimony was concluded, and ruled that inasmuch as the direct examination had been finished, and there had been no cross-examination, there was no course open to Mr. Howe but to call his next witness!
Mr. Sergeant Ballantine in his autobiography, “Some Experiences of a Barrister’s Life,” gives an account of the trial for murder of a young woman of somewhat prepossessing appearance, who was charged with poisoning her husband. “They were people in a humble class of life, and it was suggested that she had committed the act to obtain possession of money from a burial fund, and also that she was on terms of improper intimacy with a young man in the neighborhood. A minute quantity of arsenic was discovered in the body of the deceased, which in the defence I accounted for by the suggestion that poison had been used carelessly for the destruction of rats. Mr. Baron Parke charged the jury not unfavorably to the prisoner, dwelling pointedly upon the small quantity of arsenic found in the body, and the jury without much hesitation acquitted her. Dr. Taylor, the professor of chemistry and an experienced witness, had proved the presence of arsenic, and, as I imagine, to the great disappointment of my solicitor, who desired a severe cross-examination, I did not ask him a single question. He was sitting on the bench and near the judge, who, after he had summed up and before the verdict was pronounced, remarked to him that he was surprised at the small amount of arsenic found; upon which Taylor said that if he had been asked the question, he should have proved that it indicated, under the circumstances detailed in evidence, that a very large quantity had been taken. The professor had learned never to volunteer evidence, and the counsel for the prosecution had omitted to put the necessary question. Mr. Baron Parke, having learned the circumstance by accidental means, did not feel warranted in using the information, and I had my first lesson in the art of ‘silent cross-examination.’
Another exceedingly interesting and useful lesson in the art of silent cross-examination will be found in the following story as told by Richard Harris, K.C., in the London Law Journal for 1902.
“A long time ago, in the East End of London, lived a manufacturer of the name of Waring. He was in a large way of business, had his country house, where his family lived, and his town establishment. He was a man of great parochial eminence and respect ability.
“Among the many hands he employed was a girl of the name of Harriet Smith. She came from the country and had not quite lost the bloom of rusticity when the respectable Mr. Waring fell in love with her. Had Harriet known he was married, in all probability she would have rejected his respectable attentions. He induced her to marry him, but it was to be kept secret; her father was not to know of it until such time as suited Mr. Waring’s circumstances.
“In the course of time there were two children; and then unfortunately came a crisis in Mr. Waring’s affairs. He was bankrupt. The factory and warehouse were empty, and Harriet was deprived of her weekly allowance.
“One day when Waring was in his warehouse, wondering, probably, what would be his next step, old Mr. Smith, the father of Harriet, called to know what had become of his daughter. ‘That,’ said Mr. Waring, ‘is exactly what I should like to know.’ She had left him, it seemed, for over a year, and, as he understood, was last seen in Paris. The old man was puzzled, and informed Waring that he would find her out, dead or alive; and so went away. It was a strange thing, said the woman in whose house Mrs. Waring had apartments, that she should have gone away and never inquired about her children, especially as she was so fond of them.
“She had gone nearly a year, and in a few days Mr. Waring was to surrender the premises to his landlord. There never was a man who took things more easily than Mr. Waring; leaving his premises did not disturb him in the least, except that he had a couple of rather large parcels which he wanted to get away without anybody seeing him. It might be thought that he had been concealing some of his property if he were to be seen taking them away.
“It happened that there had been a youth in his employ of the name of Davis James Davis a plain simple lad enough, and of kind obliging disposition. He had always liked his old master, and was himself a favorite. Since the bankruptcy he had been apprenticed to another firm in Whitechapel, and one Saturday night as he was strolling along toward the Minories to get a little fresh air, suddenly met his old master, who greeted him with his usual cordiality and asked him if he had an hour to spare, and, if so, would he oblige him by helping him to a cab with a couple of parcels which belonged to a commercial traveller and contained valuable samples? James consented willingly, and lighting each a cigar which Mr. Waring produced, they walked along, chatting about old times and old friends. When they got to the warehouse there were the two parcels, tied up in American cloth.
“‘Here they are,’ said Mr. Waring, striking a light. ‘You take one, and I’ll take the other; they’re pretty heavy and you must be careful how you handle them, or some of the things might break.’
“When they got to the curb of the pavement, Mr. Waring said, ‘Stop here, and I’ll fetch a four-wheeler.’
“While James was waiting, a strange curiosity to look into the parcels came over him; so strange that it was irresistible, and accordingly he undid the end of one of them. Imagine the youth’s horror when he was confronted with a human head that had been chopped off at the shoulders!
“‘My hair stood on end,’ said the witness, ‘and my hat fell off.’ But his presence of mind never forsook him. He covered the ghastly ‘relic of mortality ‘up and stood like a statue, waiting Mr. Waring’s return with his cab.
“‘Jump in, James,’ said he, after they had put the ‘samples’ on the top of the cab. But James was not in the humor to get into the cab. He preferred running behind. So he ran behind all along Whitechapel road, over London bridge, and away down Old Kent road, shouting to every policeman he saw to stop the cab, but no policeman took any notice of him except to laugh at him for a lunatic. The ‘force ‘does not disturb its serenity of mind for trifles.
“By and by the cab drew up in a back street in front of an empty house, which turned out to be in the possession of Mr. Waring’s brother; a house built in a part of Old London with labyrinths of arches, vaults, and cellars in the occupation of rats and other vermin.
“James came up, panting, just as his old master had taken his first packet of samples into the house. He had managed somehow or other to get a policeman to listen to him.
“The policeman, when Mr. Waring was taking in the second parcel, boldly asked him what he’d got there.
“‘Nothing for you,’ said Mr. Waring.
“‘I don’t know about that,’ replied the policeman, ‘let’s have a look.’
“Here Mr. Waring lost his presence of mind, and offered the policeman, and another member of the force who had strolled up, a hundred pounds not to look at the parcels.
“But the force was not to be tampered with. They pushed Mr. Waring inside the house, and there discovered the ghastly contents of the huge bundles. The policemen’s suspicions were now aroused, and they proceeded to the police station, where the divisional surgeon pronounced the remains to be those of a young woman who had been dead for a considerable time and buried in chloride of lime.
“Of course this was no proof of murder, and the charge of murder against Waring was not made until a considerable time after not until the old father had declared time after time that the remains were those of his daughter Harriet.
“At length the treasury became so impressed with the old man’s statement that the officials began to think it might be a case of murder after all, especially as there were two bullet-wounds at the back of the woman’s head, and her throat had been cut. There was also some proof that she had been buried under the floor of Mr. Waring’s warehouse, some hair being found in the grave, and a button or two from the young woman’s jacket.
“All these things tended to awaken the suspicion of the treasury officials. Of course there was a suggestion that it was a case of suicide, but the Lord Chief Justice disposed of that later on at the trial by asking how a woman could shoot herself twice in the back of the head, cut her throat, bury herself under the floor, and nail the boards down over her grave.
“Notwithstanding it was clear that no charge of murder could be proved without identification, the treasury boldly made a dash for the capital charge, in the hope that something might turn up. And now, driven to their wits’ end, old Mr. Smith was examined by one of the best advocates of the day, and this is what he made of him:
“‘You have seen the remains?’
“‘Whose do you believe them to be?’
“‘My daughter’s, to the best of my belief.’
“‘Why do you believe them to be your daughter’s?’
“‘By the height, the color of the hair, and the smallness of the foot and leg.’
“That was all; and it was nothing.
“But there must needs be cross-examination if you are to satisfy your client. So the defendant’s advocate asks:
“‘Is there anything else upon which your belief is founded?’
“‘No,’ hesitatingly answers the old man, turning his hat about as if there was some mystery about it.
“There is breathless anxiety in the crowded court, for the witness seemed to be revolving something in his mind that he did not like to bring out.
“‘Yes,’ he said, after a dead silence of two or three minutes. ‘My daughter had a scar on her leg.’
“There was sensation enough for the drop scene. More cross-examination was necessary now to get rid of the business of the scar, and some reexamination, too.
“The mark, it appeared, was caused by Harriet’s having fallen into the fireplace when she was a girl.
“‘Did you see the mark on the remains?’ asked the prisoner’s Counsel.
“‘No; I did not examine for it. I hadn’t seen it for ten years.’
“There was much penmanship on the part of the treasury, and as many interchanges of smiles between the officials as if the discovery had been due to their sagacity; and they went about saying, ‘How about the scar? How will he get over the scar? What do you think of the scar?’ Strange to say, the defendant’s advisers thought it prudent to ask the magistrate to allow the doctors on both sides to examine the remains in order to ascertain whether there was a scar or not, and, stranger still, while giving his consent, the magistrate thought it was very immaterial.
“It proved to be so material that when it was found on the leg, exactly as the old man and a sister had described it, the doctors cut it out and preserved it for production at the trial.
“After the discovery, of course the result of the trial was a foregone conclusion.“It will be obvious to the sagacious reader that the blunder indicated was not the only one in the case. On the other side was one of equal gravity and more unpardonable, which needs no pointing out. Justice, baffled by want of tact on one side, was righted by an accident on the other.”