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The Art of Cross-Examination

by Francis H. Wellman

CHAPTER VIII
CROSS-EXAMINATION TO THE “FALLACIES OF TESTIMONY”

It is intended in this chapter to analyze some of the elements of human nature and human understanding that combine to conceal the truth about any given subject under investigation, where the witnesses are themselves honest and unconscious of any bias, or partisanship, or motive for erroneous statement. 

Rufus Choate once began one of his more abstruse arguments before Chief Justice Shaw in the following manner: “In coming into the presence of your Honor I experience the same feelings as the Hindoo when he bows before his idol.  I realize that you are ugly, but I feel that you are great!’

I am conscious of something of the same feeling as I embark upon the following discussion.  I realize the subject is dry, but I feel that its importance to all serious students of advocacy is great. 

No one can frequent our courts of justice for any length of time without finding himself aghast at the daily spectacle presented by seemingly honest and intelligent men and women who array themselves upon opposite sides of a case and testify under oath to what appear to be absolutely contradictory statements of fact. 

It will be my endeavor in what follows to deal with this subject from its psychological point of view and to trace some of the causes of these unconscious mistakes of witnesses, so far as it is possible.  The inquiry is most germane to what has preceded, for unless the advocate comprehends something of the sources of the fallacies of testimony, it surely would become a hopeless task for him to try to illuminate them by his cross-examinations. 

It has been aptly said that “Knowledge is only the impression of one’s mind and not the fact itself, which may present itself to many minds in many different aspects.”  The unconscious sense impressions sight, sound, or touch would be the same to every human mind; but once you awaken the mind to consciousness, then the original impression takes on all the color of motive, past experience, and character of the individual mind that receives it.  The sensation by itself will be always the same.  The variance arises when the sensation is interpreted by the individual and becomes a perception of his own mind. 

When a man on a hot day looks at a running stream and sees the delicious coolness, he is really adding something of himself, which he acquired by his past experience to the sense impression which his eye gives him. 

A different individual might receive the impression of tepid insipidity instead of “delicious coolness “in accordance with his own past experiences.  The material of sensation is acted on by the mind which clothes the sensation with the experiences of the individual. [1]  Helmholtz distinctly calls the perception of distance, for example, an unconscious inference, a mechanically performed act of judgment. 

The interpretation of a sensation is, therefore, the act of the individual, and different individuals will naturally vary in their interpretations of the same sensation according to their previous experiences and various mental characteristics.  This process is most instantaneous, automatic, and unconscious.  “The artist immediately sees details where to other eyes there is a vague or confused mass; the naturalist sees an animal where the ordinary eye only sees a form.” [2]  An adult sees an infinite variety of things that are meaningless to the child. 

Likewise the same impression may be differently interpreted by the same individual at different times, due in part to variations in his state of attention at the moment, and in the degree of the mind’s readiness to look at the impression in the required way.  A timid man will more readily fall into the illusion of ghost-seeing than a cool-headed man, because he is less attentive to the actual impression of the moment. 

Every mind is attentive to what it sees or hears, more or less, according to circumstances.  It is in the region of hazy impressions that the imagination is wont to get in its most dangerous work.  It often happens that, when the mind is either inactive, or is completely engrossed by some other subject of thought, the sensation may neither be perceived, nor interpreted, nor remembered, notwithstanding there may be evidence, derived from the respondent movements of the body, that it has been felt; as, for example, a person in a state of imperfect sleep may start at a loud sound, or turn away from a bright light, being conscious of the sensation and acting automatically upon it, but forming no kind of appreciation of its source and no memory of its occurrence.[3]  Such is the effect of sensation upon complete inattention.  It thus appears that it is partly owing to this variation in intensity of attention that different individuals get such contradictory ideas of the same occurrence or conversation.  When we add to this variance in the degree of attention, the variance, just explained, in the individual interpretation or coloring of the physical sensation, we have still further explanation of why men so often differ in what they think they have seen and heard. 

Desire often gives rise to still further fallacy.  Desire prompts the will to fix the attention on a certain point, and this causes the emphasis of this particular point or proposition to the exclusion of others.  The will has the power of keeping some considerations out of view, and thereby diminishes their force, while it fixes the attention upon others, and thereby increases their force. 

Sir John Romilly, in an opinion reported in 16 Beavan, 105, says: “It must always be borne in mind how extremely prone persons are to believe what they wish.  It is a matter of frequent observation that persons dwelling for a long time on facts which they believed must have occurred, and trying to remember whether they did so or not, come at last to persuade themselves that they do actually recollect the occurrences of circumstances which at first they only begin by believing must have happened.  What was originally the result of imagination becomes in time the result of recollection.  Without imputing anything like wilful and corrupt perjury to witnesses of this description, they often in truth bona fide believe that they have heard and remembered conversations and observations which in truth never existed, but are the mere offspring of their imaginations.” 

Still another most important factor and itself the source of an enormous number of “fallacies of testimony “is memory.  We are accustomed to speak of memory as if it consisted in an exact reproduction of past states of consciousness, yet experience is continually showing us that this reproduction is very often inexact.  through the modifications which the “trace “has undergone in the interval.  Sometimes the trace has been partially obliterated; and what remains may serve to give a very erroneous (because imperfect) view of the occurrence.  When it is one in which our own feelings are interested, we are extremely apt to lose sight of what goes against them, so that the representation given by memory is altogether one-sided.  This is continually demonstrated by the entire dissimilarity of the accounts of the same occurrence or conversation which is often given by two or more parties concerned in it, even when the matter is fresh in their minds, and they are honestly desirous of telling the truth.  This diversity will usually become still more pronounced with the lapse of time, the trace becoming gradually but unconsciously modified by the habitual course of thought and feeling, so that when it is so acted upon after a lengthened interval as to bring up a reminiscence of the original occurrence, that reminiscence really represents, not the original occurrence, but the modified trace of it. [4]

Mr. Sully says: “Just as when distant objects are seen mistily our imaginations come into play, leading us to fancy that we see something completely and distinctly, so when the images of memory become dim, our present imagination helps to restore them, putting a new patch into the old garment.  If only there is some relic even of the past preserved, a bare suggestion of the way in which it may have happened will often suffice to produce the conviction that it actually did happen in this way.  The suggestions that naturally rise in our minds at such times will bear the stamp of our present modes of experience and habits of thought.  Hence, in trying to reconstruct the remote past we are constantly in danger of importing our present selves into our past selves.” 

Senator George F.  Hoar, in his recently published “Autobiography of Seventy Years,” says:

“The recollections of the actors in important political transactions are doubtless of great historic value.  But I ought to say frankly that my experience has taught mf that the memory of men, even of good and true men, as to matters in which they have been personal actors, is frequently most dangerous and misleading.  I could recount many curious stories which have been told me by friends who have been writers of history and biography, of the contradictory statements they have received from the best men in regard to scenes in which they have been present.” 

It is obviously the province of the cross-examiner to detect the nature of any foreign element which may have been imported into a witness’s memory of an event or transaction to which he testifies, and if possible to discover the source of the error; whether the memory has been warped by desire or imagination, or whether the error was one of original perception, and if so, whence it arose, whether from lack of attention or from wrong association of previous personal experience. 

Not only does our idea of the past become inexact by the mere decay and disappearance of essential features; it becomes positively incorrect through the gradual incorporation of elements that do not properly belong to it.  Sometimes it is easy to see how these extraneous ideas become imported into our mental representation of a past event.  Suppose, for example, that a man has lost a valuable scarf-pin.  His wife suggests that a particular servant, whose reputation does not stand too high, has stolen it.  When he afterwards recalls the loss, the chances are that he will confuse the fact with the conjecture attached to it, and say he remembers that this particular servant did steal the pin.  Thus the past activity of imagination serves to corrupt and partially falsify recollections that have a genuine basis of fact. [5]

A very striking instance of the effect of habit on the memory, especially in relation to events happening in moments of intense excitement, was afforded by the trial of a man by the name of Twichell, who was justly convicted in Philadelphia some years ago, although by erroneous testimony.  In order to obtain possession of some of his wife’s property which she always wore concealed in her clothing, Twichell, in great need of funds, murdered his wife by hitting her on the head with a slug shot.  He then took her body to the yard of the house in which they were living, bent a poker, and covered it with his wife’s blood, so that it would be accepted as the instrument that inflicted the blow, and having unbolted the gate leading to the street, left it ajar, and went to bed.  In the morning, when the servant arose, she stumbled over the dead body of her mistress, and in great terror she rushed through the gate, into the street, and summoned the police.  The servant had always been in the habit of unbolting this gate the first thing each morning, and she swore on the trial that she had done the same thing upon the morning of the murder.  There was no other way the house could have been entered from without excepting through this gate.  The servant’s testimony was, therefore, conclusive that the murder had been committed by some one from within the house, and Twichell was the only other person in the house. 

After the conviction Twichell confessed his guilt to his lawyer and explained to him how careful he had been to pull back the bolt and leave the gate ajar for the very purpose of diverting suspicion from himself.  The servant in her excitement had failed either to notice that the bolt was drawn or that the gate was open, and in recalling the circumstance later she had allowed her usual daily experience and habit of pulling back the bolt to become incorporated into her recollection of this particular morning.  It was this piece of fallacious testimony that really convicted the prisoner. 

As the day of the execution drew near, Twichell complained to the prison authorities that the print in the prison Bible was too fine for him to read, and requested that his friend a druggist be allowed to supply him with a Bible in larger type.  This friend saturated some of the pages of the Bible with corrosive sublimate.  Twichell rolled these pages up into balls, and, with the aid of water, swallowed them.  Death was almost instantaneous. 

Boswell in his “Life of Dr. Johnson,” [6] has related the particulars of his first meeting with Dr. Johnson, whom he had been long very desirous of seeing and conversing with.  At last they accidentally met at the house of a Mr. Davies.  

Mr. Arthur Murphy, in his “Essay on the Life and Genius of Dr. Johnson,” likewise gives a description of Boswell’s first meeting with Johnson.  Concerning Mr. Murphy’s account of the matter, Mr. Boswell says: “Mr. Murphy has given an account of my first meeting with Dr.  Johnson considerably different from my own, and I am persuaded, without any consciousness of error, his memory at the end of near thirty years has undoubtedly deceived him, and he supposes himself to have been present at a scene which he has probably heard inaccurately described by others.  In my own notes, taken on the very day in which I am confident I marked everything material that passed, no mention is made of this gentleman; and I am sure that I should not have omitted one so well-known in the literary world.  It may easily be imagined that this, my first interview with Dr.  Johnson, with all its circumstances, made a strong impression on my mind and would be registered with peculiar attention.” 

A writer in the Quarterly Review [7] speaking of this same occurrence, says: “An erroneous account of Boswell’s first introduction to Dr.  Johnson was published by Arthur Murphy, who asserted that he witnessed it.  Boswell’s appeal to his own strong recollection of so memorable an occasion and to the narrative he entered in his Journal at the time show that Murphy’s account was quite inaccurate, and that he was not present at the scene.  This, Murphy did not later venture to contradict.  As Boswell suggested, he had doubtless heard the circumstances repeated till at the end of thirty years he had come to fancy that he was an actor in them.  His good faith was unquestionable, and that he should have been so deluded is a memorable example of the fallibility of testimony and of the extreme difficulty of arriving at the truth.” 

Perhaps the most subtle and prolific of all of the “fallacies of testimony” arises out of unconscious partisanship.  It is rare that one comes across a witness in court who is so candid and fair that he will testify as fully and favorably for the one side as the other. 

It is extraordinary to mark this tendency we all have when once we are identified with a “side “or cause, to accept all its demands as our own.  To put on the uniform makes the policeman or soldier, even when in himself corrupt, a guardian of law and order. 

Witnesses in court are almost always favorable to the party who calls them, and this feeling induces them to conceal some facts and to color others which might, in their opinion, be injurious to the side for which they give their testimony.  This partisanship in the witness box is most fatal to fair evidence; and when we add to the partisanship of the witness the similar leaning of the lawyer who is conducting the examination, it is easy to produce evidence that varies very widely from the exact truth.  This is often done by overzealous practitioners by putting leading questions or by incorporating two questions into one, the second a simple one, misleading the witness into a “yes “for both, and thus creating an entirely false impression. 

What is it in the human make-up which invariably leads men to take sides when they come into court?  In the first place, witnesses usually feel more or less complimented by the confidence that is placed in them by the party calling them to prove a certain state of facts, and it is human nature to try to prove worthy of this confidence.  This feeling is unconscious on the part of the witness and usually is not a strong enough motive to lead to actual perjury in its full extent, but it serves as a sufficient reason why the witness will almost unconsciously dilute or color the evidence to suit a particular purpose and perhaps add only a bit here, or suppress one there, but this bit will make all the difference in the meaning. 

Many men in the witness-box feel and enjoy a sense of power to direct the verdict toward the one side or the other, and cannot resist the temptation to indulge it and to be thought a “fine witness “for their side.  I say their side; the side for which they testify always becomes their side the moment they take the witness chair, and they instinctively desire to see that side win, although they may be entirely devoid of any other interest in the case whatsoever. 

It is a characteristic of the human race to be intensely interested in the success of some one party to a contest, whether it be a war, a boat race, a ball game, or a lawsuit.  This desire to win seldom fails to color the testimony of a witness and to create fallacies and inferences dictated by the witness’s feelings, rather than by his intellect or the dispassionate powers of observation. 

Many witnesses take the stand with no well-defined motive of what they are going to testify to, but upon discovering that they are being led into statements unfavorable to the side on which they are called, experience a sudden dread of being considered disloyal, or “going back on “the party who selected them, and immediately become unconscious partisans and allow this feeling to color or warp their testimony.  There is still another class of persons who would not become witnesses for either side unless they felt that some wrong or injustice had been done to one of the parties, and thus to become a witness for the injured party seems to them to be a vindication of the right.  Such witnesses allow their feelings to become enlisted in what they believe to be a cause of righteousness, and this in turn enlists their sympathy and feelings and prompts them to color their testimony as in the case of those influenced by the other motives already spoken of. 

One sees, perhaps, the most marked instances of partisanship in admiralty cases which arise out of a collision between two ships.  Almost invariably all the crew on one ship will testify in unison against the opposing crew, and, what is more significant, such passengers as happen to be on either ship will almost invariably be found corroborating the stories of their respective crews. 

It is the same, in a lesser degree, in an ordinary personal injury case against a surface railway.  Upon the happening of an accident the casual passengers on board a street car are very apt to side with the employees in charge of the car, whereas the injured plaintiff and whatever friends or relatives happen to be with him at the time, will invariably be found upon the witness-stand testifying against the railway company. 

It is difficult to point out the methods that should be employed by the cross-examiner in order to expose to a jury the particular source of the fallacy that has warped the judgment, choked the conscience, or blinded the intelligence, of any particular witness.  It must necessarily all depend upon the circumstances arising in each particular case.  All I have attempted to do is to draw attention to the usual sources of these fallacies, and I must perforce leave it to the ingenuity of the trial lawyer to work out his own solution when the emergency arises.  This he certainly would never be able to do successfully, unless he had given careful thought and study to this branch of his professional equipment. 

The subject is a great one, and rarely, if ever, discussed by law writers, who usually pass it by with the bare suggestion that it is a topic worthy of deep investigation upon the proper occasion.  I trust that my few suggestions may serve as a stimulus to some philosophic legal mind to elaborate and elucidate the reasons for the existence of this flaw in the human mechanism, which appears to be the chief stumbling block in our efforts to arrive at truth in courts of justice.

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


[1] “Illusions,” Sully (in part).

[2] “Problems of Life and Mind,” C. H. Lewes, p.  107.

[3] “Mental Philosophy,” Carpenter (in part).

[4] “Campbell’s Mental Physiology” (in great part).

[5] “Illusions,” p.264 (in part).

[6] Vol. II, p. 165.

[7] Quarterly Review, vol.  ciii., p.  292.

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