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The Art of Cross-Examination

by Francis H. Wellman


The preceding chapters have been devoted to the legitimate uses of cross-examination the development of truth and exposure of fraud. 

Cross-examination as to credit has also its legitimate use to accomplish the same end; but this powerful weapon for good has almost equal possibilities for evil.  It is proposed in the present chapter to demonstrate that cross-examination as to credit should be exercised with great care and caution, and also to discuss some of the abuses of cross-examination by attorneys, under the guise and plea of cross-examination as to credit. 

Questions which throw no light upon the real issues in the case, nor upon the integrity or credit of the witness under examination, but which expose misdeeds, perhaps long since repented of and lived down, are often put for the sole purpose of causing humiliation and disgrace.  Such inquiries into private life, private affairs, or domestic infelicities, perhaps involving innocent persons who have nothing to do with the particular litigation and who have no opportunity for explanation nor means of redress, form no legitimate part of the cross-examiner’s art.  The lawyer who allows himself to become the mouthpiece of the spite or revenge of his client may inflict untold suffering and unwarranted torture.  Such questions may be within the legal rights of counsel in certain instances, but the lawyer who allows himself to be led astray by his zeal or by the solicitations of his client, at his elbow, ready to make any sacrifice to humiliate his adversary, thereby debauches his profession and surrenders his self-respect, for which an occasional verdict, won from an impressionable jury by such methods, is a poor recompense. 

To warrant an investigation into matters irrelevant to the main issues in the case, and calculated to disgrace the witness or prejudice him in the eyes of the jury, they must at least be such as tend to impeach his general moral character and his credibility as a witness.  There can be no sanction for questions that tend simply to degrade the witness personally, and which can have no possible bearing upon his veracity. 

In all that has preceded we have gone upon the presumption that the cross-examiner’s art would be used to further his client’s cause by all fair and legitimate means, not by misrepresentation, insinuation, or by knowingly putting a witness in a false light before a jury.  These methods doubtless succeed at times, but he who practises them acquires the reputation, with astounding rapidity, of being “smart,” and finds himself discredited not only with the court, but in some almost unaccountable way, with the very juries before whom he appears.  Let him once get the reputation of being “unfair” among the habitués of the court-house, and his usefulness to clients as a trial lawyer is gone forever.  Honesty is the best policy quite as much with the advocate as in any of the walks of life. 

Counsel may have in his possession material for injuring the witness, but the propriety of using it often becomes a serious question even in cases where its use is otherwise perfectly legitimate.  An outrage to the feelings of a witness may be quickly resented by a jury, and sympathy take the place of disgust.  Then, too, one has to reckon with the judge, and the indignation of a strong judge is not wisely provoked.  Nothing could be more unprofessional than for counsel to ask questions which disgrace not only the witness, but a host of innocent persons, for the mere reason that the client wishes them to be asked. 

There could be no better example of the folly of yielding to a client’s hatred or desire for revenge than the outcome of the famous case in which Mrs.  Edwin Forrest was granted a divorce against her husband, the distinguished tragedian.  Mrs.  Forrest, a lady of culture and refinement, demanded her divorce upon the ground of adultery, and her husband had made counter-charges against her.  At the trial (1851) Charles O’Connor, counsel for Mrs.  Forrest, called as his first witness the husband himself, and asked him concerning his infidelities in connection with a certain actress.  John Van Buren, who appeared for Edwin Forrest, objected to the question on the ground that it required his client to testify to matters that might incriminate him.  The question was not allowed, and the husband left the witness-stand.  After calling a few unimportant witnesses, O’Connor rested the case for plaintiff without having elicited any tangible proof against the husband.  Had a motion to take the case from the jury been made at this time, it would of necessity have been granted, and the wife’s suit would have failed.  It is said that when Mr. Van Buren was about to make such a motion and end the case, Mr. Forrest directed him to proceed with the testimony for the defence, and develop the nauseating evidence he had accumulated against his wife.  Van Buren yielded to his client’s wishes, and for days and weeks continued to call witness after witness to the disgusting details of Mrs.  Forrest’s alleged debauchery.  The case attracted great public attention and was widely reported by the newspapers.  The public, as so often happens, took the opposite view of the evidence from the one the husband had anticipated.  Its very revolting character aroused universal sympathy on the wife’s behalf.  Mr. O’Connor soon found himself flooded with offers of evidence, anonymous and otherwise, against the husband, and when Van Buren finally closed his attack upon the wife, O’Connor was enabled, in rebuttal, to bring such an avalanche of convincing testimony against the defendant that the jury promptly exonerated Mrs.  Forrest and granted her the divorce.  At the end of the first day’s trial the case could have been decided in favor of the husband, had a simple motion to that effect been made; but, yielding to his client’s hatred of his wife, and after a hard-fought trial of thirty-three days, Mr. Van Buren found both himself and his client ignominiously defeated.  This error of Mr. Van Buren’s was widely commented on by the profession at the time.  He had but lately resigned his office at Albany as attorney general, and up to the time of this trial had acquired no little prestige in his practice in the city of New York, which, however, he never seemed to regain after his fatal blunder in the Forrest divorce case. [1]

The abuse of cross-examination has been widely discussed in England in recent years, partly in consequence of the cross-examination of a Mrs.  Bravo, whose husband had died by poison.  He had lived unhappily with her on account of the attentions of a certain physician.  During the inquiry into the circumstances of her husband’s death, the story of the wife’s intrigue was made public through her cross-examination.  Sir Charles Russell, who was then regarded as standing at the head of the Bar, both in the extent of his business and in his success in court, and Sir Edward Clark, one of her Majesty’s law officers, with a high reputation for ability in jury trials, were severely criticised as “forensic bullies,” and complained of as “lending the authority of their example to the abuse of cross-examination to credit which was quickly followed by barristers of inferior positions, among whom the practice was spreading of assailing witnesses with what was not unfairly called a system of innuendoes, suggestions, and bullying from which sensitive persons recoil.”  And Mr. Charles Gill, one of the many imitators of Russell’s domineering style, was criticised as “bettering the instructions of his elders.” 

The complaint’ against Russell was that by his practices as displayed in the Osborne case robbery of jewels not only may a man’s, or a woman’s, whole past be laid bare to malignant comment and public curiosity, but there is no means afforded by the courts of showing how the facts really stood or of producing evidence to repel the damaging charges. 

Lord Bramwell, in an article published originally in Nineteenth Century for February, 1892, and republished in legal periodicals all over the world, strongly defends the methods of Sir Charles Russell and his imitators.  Lord Bramwell claimed to speak after an experience of forty-seven years’ practice at the Bar and on the bench, and long acquaintance with the legal profession. 

“A judge’s sentence for a crime, however much repented of, is not the only punishment; there is the consequent loss of character in addition, which should confront such a person whenever called to the witness stand.”  “Women who carry on illicit intercourse, and whose husbands die of poison, must not complain at having the veil that ordinarily screens a woman’s life from public inquiry rudely torn aside.”  “It is well for the sake of truth that there should be a wholesome dread of cross-examination.”  “It should not be understood to be a trivial matter, but rather looked upon as a trying ordeal.”  “None but the sore feel the probe.”  Such were some of the many arguments of the various upholders of broad license in examinations to credit. 

Lord Chief Justice Cockburn took the opposite view of the question.  “I deeply deplore that members of the Bar so frequently unnecessarily put questions affecting the private life of witnesses, which are only justifiable when they challenge the credibility of a witness.  I have watched closely the administration of justice in France, Germany, Holland, Belgium, Italy, and a little in Spain, as well as in the United States, in Canada, and in Ireland, and in no place have I seen witnesses so badgered, browbeaten, and in every way so brutally maltreated as in England.  The way in which we treat our witnesses is a national disgrace and a serious obstacle, instead of aiding the ends of justice.  In England the most honorable and conscientious men loathe the witness-box.  Men and women of all ranks shrink with terror from subjecting themselves to the wanton insult and bullying misnamed cross-examination in our English courts.  Watch the tremor that passes the frames of many persons as they enter the witness-box. 

I remember to have seen so distinguished a man as the late Sir Benjamin Brodie shiver as he entered the witness-box.  I daresay his apprehension amounted to exquisite torture.  Witnesses are just as necessary for the administration of justice as judges or jurymen, and are entitled to be treated with the same consideration, and their affairs and private lives ought to be held as sacred from the gaze of the public as those of the judges or the jurymen.  I venture to think that it is the duty of a judge to allow no questions to be put to a witness, unless such as are clearly pertinent to the issue before the court, except where the credibility of the witness is deliberately challenged by counsel and that the credibility of a witness should not be wantonly challenged on slight grounds.” [2]

The propriety or impropriety of questions to credit is of course largely addressed to the discretion of the court.  Such questions are generally held to be fair when, if the imputation they convey be true, the opinion of the court would be seriously affected as to the credibility of the witness on the matter to which he testifies; they are unfair when the imputation refers to matters so remote in time, or of such character that its truth would not affect the opinion of the court; or if there be a great disproportion between the importance of the imputation and the importance of the witness’s evidence. [3]

A judge, however, to whose discretion such questions are addressed in the first instance, can have but an imperfect knowledge of either side of the case before him.  He cannot always be sure, without hearing all the facts, whether the questions asked would or would not tend to develop the truth rather than simply degrade the Witness.  Then, again, the mischief is often done by the mere asking of the question, even if the judge directs the witness not to answer.  The insinuation has been made publicly the dirt has been thrown.  The discretion must therefore after all be largely left to the lawyer himself.  He is bound in honor, and out of respect to his profession, to consider whether the question ought in conscience to be asked whether in his own honest judgment it renders the witness unworthy of belief under oath before he allows himself to ask it.  It is much safer, for example, to proceed upon the principle that the relations between the sexes has no bearing whatever upon the probability of the witness telling the truth, unless in the extreme case of an abandoned woman. 

In criminal prosecutions the district attorney is usually regarded by the jury much in the light of a judicial officer and, as such, unprejudiced and impartial.  Any slur or suggestion adverse to a prisoner’s witness coming from this source, therefore, has an added power for evil, and is calculated to do injustice to the defendant.  There have been many flagrant abuses of this character in the criminal courts of our own city.  “Is it not a fact that you were not there at all?”  “Has all this been written out for you?”  “Is it not a fact that you and your husband have concocted this whole story?”  “You have been a witness for your husband in every lawsuit he has had, have you not?” were all questions that were recently criticised by the court, on appeal, as “innuendo,” and calculated to prejudice the defendant by the Michigan Supreme Court in the People vs. Cahoon and held sufficient, in connection with other similar errors, to set the conviction aside. 

Assuming that the material with which you propose to assail the credibility of a witness fully justifies the attack, the question then arises, How to use this material to the best advantage?  The sympathies of juries are keen toward those obliged to confess their crimes on the witness-stand.  The same matters may be handled to the advantage or positive disadvantage of the cross-examiner.  If you hold in your possession the evidence of the witness’s conviction, for example, but allow him to understand that you know his history, he will surely get the better of you.  Conceal it from him, and he will likely try to conceal it from you, or lie about it if necessary.  “I don’t suppose you have ever been in trouble, have you?”  will bring a quick reply, “What trouble?”  “Oh, I can’t refer to any particular trouble.  I mean generally, have you ever been in jail?  “The witness will believe you know nothing about him and deny it, or if he has been many times convicted, will admit some small offence and attempt to conceal everything but what he suspects you know already about him. 

This very attempt to deceive, if exposed, will destroy him with the jury far more effectually than the knowledge of the offences he has committed.  On the other hand, suppose you taunt him with his crime in the first instance; ten to one he will admit his wrong-doing in such a way as to arouse toward himself the sympathy of the jury and their resentment toward the lawyer who was unchristian enough to uncover to public view offences long since forgotten. 

Chief Baron Pollock once presided at a case where a witness was asked about a conviction years gone by, though his (the witness’s) honesty was not doubted.  The baron burst into tears at the answer of the witness. 

In the Bellevue Hospital case (the details of which are fully described in a subsequent chapter), and during the cross-examination of the witness Chambers, who was confined in the Pavilion for the Insane at the time, the writer was imprudent enough to ask the witness to explain to the jury how he came to be confined on Ward’s Island, only to receive the pathetic reply: “I was sent there because I was insane.  You see my wife was very ill with locomotor ataxia.  She had been ill a year; I was her only nurse.  I tended her day and night.  We loved each other dearly.  I was greatly worried over her long illness and frightful suffering.  The result was, I worried too deeply; she had been very good to me.  I overstrained myself, my mind gave way; but I am better now, thank you.”

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

[1] “Extraordinary Cases,” H. L. Clinton.

[2] “Irish Law Times,” 1874

[3] Sir James Stephen’s Evidence Act

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