Portal de Periódicos da CAPES

The Art of Cross-Examination; With the Cross-Examinations of Important Witnesses in Some Celebrated Cases

1904; Volume: 52; Issue: 3 Linguagem: Inglês

10.2307/3306743

1942-9150

R. B. E., Francis L. Wellman,

Jury Decision Making Processes

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 crossexamination 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 expe- rience 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 THE ART OF CROSS-EXAMINATION 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."^[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 con- tinents," 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 an- swer.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 1 " Memories of Rufus Choate," Neilson.THE MANNER OF CROSS-EXAMINATION 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 fiat.He will proceed with the next question as if noth- ing 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 op- posing 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 w^as 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 THE ART OF CROSS-EXAMINATION 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."Ŝpeak distinctly yourself, and compel your witness to THE MAFTER OE CROSS-EXAMINATION straight into Mr. Beecher's eyes and said, " Do you still consider that sound doctrine?"Mr. lieecher replied, " I do."The inference a juryman might draw from this question and answer would constitute a subtle argument upon that branch of the case.The entire effect of the testimony of an adverse wit- ness can sometimes be destroyed by a pleasant little passage-at-arms in which he is finally held up to ridicule before the jury, and all that he has previously said against you disappears in the laugh that accompanies him from the witness box.In a recent Metropolitan Street Railway case a witness who had been badgered rather per- sistently on cross-examination, finally straightened himself up in the witness chair and said pertly, " I have not come here asking you to play with me.Do you take me for Anna Held ?" ^"I was not thinking of Anna Held," re- plied the counsel quietly ; " supposing you try Ananias !"The witness was enraged, the jury laughed, and the lawyer, who had really made nothing out of the witness up to this time, sat down.These little triumphs are, however, by no means always one-sided.Often, if the council gives him an opening, a clever witness will counter on him in a most humiliating fashion, certain to meet with the hearty approval of jury and audience.At the Worster Assizes, in England, a case was being tried which involved the soundness of a * This occurrence was at the time when the actress Anna Held was singing her popular stage song, " Won't you come and play with me."' Well,' ' ' " Witness.' Up by the minister's stand.'" Lincoln.' Three-quarters of a mile away.?' " Witness.' Yes, -I answered ye twiste' " I am the Christ "which soon ended the case."Curiosities of Law and Lawyers.