"Grayson was charged with shooting Lockwood at a camp-meeting, on the evening of August 9, 18—, and with running away from the scene of the killing, which was witnessed by Sovine. The proof was so strong that, even with an excellent previous character, Grayson came very near being lynched on two occasions soon after his indictment for murder.
"The mother of the accused, after failing to secure older counsel, finally engaged young Abraham Lincoln, as he was then called, and the trial came on to an early hearing. No objection was made to the jury, and no cross-examination of witnesses, save the last and only important one, who swore that he knew the parties, saw the shot fired by Grayson, saw him run away, and picked up the deceased, who died instantly.
"The evidence of guilt and identity was morally certain. The attendance was large, the interest intense. Grayson's mother began to wonder why 'Abraham remained silent so long and why he didn't do something!'The people finally rested. The tall lawyer (Lincoln) stood up and eyed the strong witness in silence, without books or notes, and slowly began his defence by these questions:
"Lincoln.'And you were with Lockwood just before and saw the shooting?'
"Witness.'Yes.'
"Lincoln.'And you stood very near to them?'
"Witness.'No, about twenty feet away.'
"Lincoln.'May it not have beentenfeet?'
"Witness.'No, it was twenty feetor more.'
"Lincoln.'In the open field?'
"Witness.'No, in the timber.'
"Lincoln.'What kind of timber?'
"Witness.'Beech timber.'
"Lincoln.'Leaves on it are rather thick in August?'
"Witness.'Rather.'
"Lincoln.'And you thinkthispistol was the one used?'
"Witness.'It looks like it.'
"Lincoln.'You could see defendant shoot—see how the barrel hung, and all about it?'
"Witness.'Yes.'
"Lincoln.'How near was this to the meeting place?'
"Witness.'Three-quarters of a mile away.'
"Lincoln.'Where were the lights?'
"Witness.'Up by the minister's stand.'
"Lincoln.'Three-quarters of a mile away?'
"Witness.'Yes,—I answered yetwiste.'
"Lincoln.'Did you not see a candle there, with Lockwood or Grayson?'
"Witness.'No! what would we want a candle for?'
"Lincoln.'How, then, did you see the shooting?'
"Witness.'By moonlight!' (defiantly).
"Lincoln.'You saw this shooting at ten at night—in beech timber, three-quarters of a mile from the lights—saw the pistol barrel—saw the man fire—saw it twenty feet away—saw it all by moonlight? Saw it nearly a mile from the camp lights?'
"Witness.'Yes, I told you so before.'
"The interest was now so intense that men leaned forward to catch the smallest syllable. Then the lawyer drew out a blue-covered almanac from his side coat pocket—opened it slowly—offered it in evidence—showed it to the jury and the court—read from a page with careful deliberation that the moon on that night was unseen and only arose atonethe next morning.
"Following this climax Mr. Lincoln moved the arrest of the perjured witness as the real murderer, saying: 'Nothing buta motive to clear himselfcould have induced him to swear away so falsely the life of one who never did him harm!' With such determined emphasis did Lincoln present his showing that the court ordered Sovine arrested, and under the strain of excitement he broke down and confessed to being the one who fired the fatal shot himself, but denied it was intentional."
A difficult but extremely effective method of exposinga certain kind of perjurer is to lead him gradually to a point in his story, where—in his answer to the final question "Which?"—he will have to choose either one or the other of the only two explanations left to him, either of which would degrade if not entirely discredit him in the eyes of the jury.
The writer once heard the Hon. Joseph H. Choate make very telling use of this method of examination. A stock-broker was being sued by a married woman for the return of certain bonds and securities in the broker's possession, which she alleged belonged to her. Her husband took the witness-stand and swore that he had deposited the securities with the stock-broker as collateral against his market speculations, but that they did not belong to him, and that he was acting for himself and not as agent for his wife, and had taken her securities unknown to her.
It was the contention of Mr. Choate that, even if the bonds belonged to the wife, she had either consented to her husband's use of the bonds, or else was a partner with him in the transaction. Both of these contentions were denied under oath by the husband.
Mr. Choate."When you ventured into the realm of speculations in Wall Street I presume you contemplated the possibility of the market going against you, did you not?"
Witness."Well, no, Mr. Choate, I went into Wall Street to make money, not to lose it."
Mr. Choate."Quite so, sir; but you will admit, will you not, that sometimes the stock market goes contrary to expectations?"
Witness."Oh, yes, I suppose it does."
Mr. Choate."You say the bonds were not your own property, but your wife's?"
Witness."Yes, sir."
Mr. Choate."And you say that she did not lend them to you for purposes of speculation, or even know you had possession of them?"
Witness."Yes, sir."
Mr. Choate."You even admit that when you deposited the bonds with your broker as collateral against your stock speculations, you did not acquaint him with the fact that they were not your own property?"
Witness."I did not mention whose property they were, sir."
Mr. Choate(in his inimitable style). "Well, sir, in the event of the market going against you and your collateral being sold to meet your losses,whom did you intend to cheat, your broker or your wife?"
The witness could give no satisfactory answer, and for once a New York jury was found who were willing to give a verdict against the customer and in favor of a Wall Street broker.
In the great majority of cases, however, the most skilful efforts of the cross-examiner will fail to lead the witness into such "traps" as these. If you have accomplishedone suchcoup, be content with the point you have made; do not try to make another with the same witness; sit down and let the witness leave the stand.
But let us suppose you are examining a witness with whom no such climax is possible. Here you will require infinite patience and industry. Try to show that his story is inconsistent with itself, or with other known facts in the case, or with the ordinary experience of mankind. There is a wonderful power in persistence. If you fail in one quarter, abandon it and try something else. There is surely a weak spot somewhere, if the story is perjured. Frame your questions skilfully. Ask them as if you wanted a certain answer, when in reality you desire just the opposite one. "Hold your own temper while you lead the witness to lose his" is a Golden Rule on all such occasions. If you allow the witness a chance to give his reasons or explanations, you may be sure they will be damaging to you, not to him. If you can succeed in tiring out the witness or driving him to the point of sullenness, you have produced the effect of lying.
But it is not intended to advocate the practice of lengthy cross-examinations because the effect of them, unless the witness is broken down, is to lead the jury to exaggerate the importance of evidence given by a witness who requires so much cross-examination in the attempt to upset him. "During the Tichborne trial for perjury, a remarkable man named Luie was called to testify. Hewas a shrewd witness and told his tale with wonderful precision and apparent accuracy. That it was untrue there could hardly be a question, but that it could be proved untrue was extremely doubtful and an almost hopeless task. It was an improbable story, but still was not an absolutely impossible one. If true, however, the claimant was the veritable Roger Tichborne, or at least the probabilities would be so immensely in favor of that supposition that no jury would agree in finding that he was Arthur Orton. His manner of giving his evidence was perfect. After the trial one of the jurors was asked what he thought of Luie's evidence, and if he ever attached any importance to his story. He replied that at the close of the evidence-in-chief he thought it so improbable that no credence could be given to it. But after Mr. Hawkins had been at him for a day and could not shake him, I began to think, if such a cross-examiner as that cannot touch him, there must be something in what he says, and I began to waver. I could not understand how it was that, if it was all lies, it did not break down under such able counsel."[9]
The presiding judge, whose slightest word is weightier than the eloquence of counsel, will often interrupt an aimless and prolonged cross-examination with an abrupt, "Mr. ——, I think we are wasting time," or "I shall not allow you to pursue that subject further," or "I cannot see the object of this examination." This is a setbackfrom which only the most experienced advocate can readily recover. Before the judge spoke, the jury, perhaps, were already a little tired and inattentive and anxious to finish the case; they were just in the mood to agree with the remark of his Honor, and the "ATMOSPHEREof the case," as I have always termed it, was fast becoming unfavorable to the delinquent attorney's client. How important a part in the final outcome of every trial this atmosphere of the case usually plays! Many jurymen lose sight of the parties to the litigation—our clients—in their absorption over the conflict of wits going on between their respective lawyers.
It is in criminal prosecutions where local politics are involved, that the jury system is perhaps put to its severest test. The ordinary juryman is so apt to be blinded by his political prejudices that where the guilt or innocence of the prisoner at the Bar turns upon the question as to whether the prisoner did or did not perform some act, involving a supposed advantage to his political party, the jury is apt to be divided upon political lines.
About ten years ago, when a wave of political reform was sweeping over New York City, the Good Government Clubs caused the arrest of about fifty inspectors of election for violations of the election laws. These men were all brought up for trial in the Supreme Court criminal term, before Mr. Justice Barrett. The prisoners were to be defended by various leading trial lawyers, and everything depended upon the result of the first fewcases tried. If these trials resulted in acquittals, it was anticipated that there would be acquittals all along the line; if the first offenders put on trial were convicted and sentenced to severe terms in prison, the great majority of the others would plead guilty, and few would escape.
At that time the county of New York was divided, for purposes of voting, into 1067 election districts, and on an average perhaps 250 votes were cast in each district. An inspector of one of the election districts was the first man called for trial. The charge against him was the failure to record correctly the vote cast in his district for the Republican candidate for alderman. In this particular election district there had been 167 ballots cast, and it was the duty of the inspectors to count them and return the result of their count to police headquarters.
At the trial twelve respectable citizens took the witness chair, one after another, and affirmed that they lived in the prisoner's election district, and had all cast their ballots on election day for the Republican candidate. The official count for that district, signed by the prisoner, was then put in evidence, which read: Democratic votes, 167; Republican, 0. There were a number of witnesses called by the defence who were Democrats. The case began to take on a political aspect, which was likely to result in a divided jury and no conviction, since it had been shown that the prisoner had a most excellentreputation and had never been suspected of wrong-doing before. Finally the prisoner himself was sworn in his own behalf.
It was the attempt of the cross-examiner to leave the witness in such a position before the jury that no matter what their politics might be, they could not avoid convicting him. There were but five questions asked.
Counsel."You have told us, sir, that you have a wife and seven children depending upon you for support. I presume your desire is not to be obliged to leave them; is it not?"
Prisoner."Most assuredly, sir."
Counsel."Apart from that consideration I presume you have no particular desire to spend a term of years in Sing Sing prison?"
Prisoner."Certainly not, sir."
Counsel."Well, you have heard twelve respectable citizens take the witness-stand and swear they voted the Republican ticket in your district, have you not?"
Prisoner."Yes, sir."
Counsel(pointing to the jury). "And you see these twelve respectable gentlemen sitting here ready to pass judgment upon the question of your liberty, do you not?"
Prisoner."I do, sir."
Counsel(impressively, but quietly). "Well, now, Mr. ----, you will please explain to these twelve gentlemen (pointing to jury) how it was that the ballots cast by theother twelve gentlemen were not counted by you, and then you can take your hat and walk right out of the court room a free man."
The witness hesitated, cast down his eyes, but made no answer—and counsel sat down.
Of course a conviction followed. The prisoner was sentenced to five years in state prison. During the following few days nearly thirty defendants, indicted for similar offences, pleaded guilty, and the entire work of the court was completed within a few weeks. There was not a single acquittal or disagreement.
Occasionally, when sufficient knowledge of facts about the witness or about the details of his direct testimony can be correctly anticipated, a trap may be set into which even a clever witness, as in the illustration that follows, will be likely to fall.
During the lifetime of Dr. J. W. Ranney there were few physicians in this country who were so frequently seen on the witness-stand, especially in damage suits. So expert a witness had he become that Chief Justice Van Brunt many years ago is said to have remarked, "Any lawyer who attempts to cross-examine Dr. Ranney is a fool." A case occurred a few years before Dr. Ranney died, however, where a failure to cross-examine would have been tantamount to a confession of judgment, and the trial lawyer having the case in charge, though fully aware of the dangers, was left no alternative, and as so often happens where "fools rush in,"made one of those lucky "bull's eyes" that is perhaps worth recording.
It was a damage case brought against the city by a lady who, on her way from church one spring morning, had tripped over an obscure encumbrance in the street, and had, in consequence, been practically bedridden for the three years leading up to the day of trial. She was brought into the court room in a chair and was placed in front of the jury, a pallid, pitiable object, surrounded by her women friends, who acted upon this occasion as nurses, constantly bathing her hands and face with ill-smelling ointments, and administering restoratives, with marked effect upon the jury.
Her counsel, Ex-chief Justice Noah Davis, claimed that her spine had been permanently injured, and asked the jury for $50,000 damages.
It appeared that Dr. Ranney had been in constant attendance upon the patient ever since the day of her accident. He testified that he had visited her some three hundred times and had examined her minutely at least two hundred times in order to make up his mind as to the absolutely correct diagnosis of her case, which he was now thoroughly satisfied was one of genuine disease of the spinal marrow itself. Judge Davis asked him a few preliminary questions, and then gave the doctor his head and let him "turn to the jury and tell them all about it." Dr. Ranney spoke uninterruptedly for nearly three-quarters of an hour. He described indetail the sufferings of his patient since she had been under his care; his efforts to relieve her pain; the hopeless nature of her malady. He then proceeded in a most impressive way to picture to the jury the gradual and relentless progress of the disease as it assumed the form of creeping paralysis, involving the destruction of one organ after another until death became a blessed relief. At the close of this recital, without a question more, Judge Davis said in a calm but triumphant tone, "Do you wish to cross-examine?"
Now the point in dispute—there was no defence on the merits—was the nature of the patient's malady. The city's medical witnesses were unanimous that the lady had not, and could not have, contracted spinal disease from the slight injury she had received. They styled her complaint as "hysterical," existing in the patient's mind alone, and not indicating nor involving a single diseased organ; but the jury evidently all believed Dr. Ranney, and were anxious to render a verdict on his testimony. He must be cross-examined. Absolute failure could be no worse than silence, though it was evident that, along expected lines, questions relating to his direct evidence would be worse than useless. Counsel was well aware of the doctor's reputed fertility of resource, and quickly decided upon his tactics.
The cross-examiner first directed his questions toward developing before the jury the fact that the witness had been the medical expert for the New York, New Haven,and Hartford R. R. thirty-five years, for the New York Central R. R. forty years, for the New York and Harlem River R. R. twenty years, for the Erie R. R. fifteen years, and so on until the doctor was forced to admit that he was so much in court as a witness in defence of these various railroads, and was so occupied with their affairs that he had but comparatively little time to devote to his reading and private practice.
Counsel(perfectly quietly). "Are you able to give us, doctor, the name of any medical authority that agrees with you when you say that the particular group of symptoms existing in this case points to one disease and one only?"
Doctor."Oh, yes, Dr. Ericson agrees with me."
Counsel."Who is Dr. Ericson, if you please?"
Doctor(with a patronizing smile). "Well, Mr. ——, Ericson was probably one of the most famous surgeons that England has ever produced." (There was a titter in the audience at the expense of counsel.)
Counsel."What book has he written?"
Doctor(still smiling). "He has written a book called 'Ericson on the Spine,' which is altogether the best known work on the subject." (The titter among the audience grew louder.)
Counsel."When was this book published?"
Doctor."About ten years ago."
Counsel."Well, how is it that a man whose time is so much occupied as you have told us yours is, hasleisure enough to look up medical authorities to see if they agree with him?"
Doctor(fairly beaming on counsel). "Well, Mr. ——, to tell you the truth, I have often heard of you, and I half suspected you would ask me some such foolish question; so this morning after my breakfast, and before starting for court, I took down from my library my copy of Ericson's book, and found that he agreed entirely with my diagnosis in this case." (Loud laughter at expense of counsel, in which the jury joined.)
Counsel(reaching under the counsel table and taking up his own copy of "Ericson on the Spine," and walking deliberately up to the witness). "Won't you be good enough to point out to me where Ericson adopts your view of this case?"
Doctor(embarrassed). "Oh, I can't do it now; it is a very thick book."
Counsel(still holding out the book to the witness). "But you forget, doctor, that thinking I might ask you some such foolish question, you examined your volume of Ericson this very morning after breakfast and before coming to court."
Doctor(becoming more embarrassed and still refusing to take the book). "I have not time to do it now."
Counsel."Time!why there is all the time in the world."
Doctor.(no answer).
Counsel and witness eye each other closely.
Counsel(sitting down, still eying witness). "I am sure the court will allow me to suspend my examination until you shall have had time to turn to the place you read this morning in that book, and can reread it now aloud to the jury."
Doctor(no answer).
The court room was in deathly silence for fully three minutes. The witnesswouldn'tsay anything, counsel for plaintiffdidn't dareto say anything, and counsel for the citydidn't wantto say anything; he saw that he had caught the witness in a manifest falsehood, and that the doctor's whole testimony was discredited with the jury unless he could open to the paragraph referred to which counsel well knew did not exist in the whole work of Ericson.
At the expiration of a few minutes, Mr. Justice Barrett, who was presiding at the trial, turned quietly to the witness and asked him if he desired to answer the question, and upon his replying that he did not intend to answer it any further than he had already done, he was excused from the witness-stand amid almost breathless silence in the court room. As he passed from the witness chair to his seat, he stooped and whispered into the ear of counsel, "You are the ——est most impertinent man I have ever met."
After a ten days' trial the jury were unable to forget the collapse of the plaintiff's principal witness, and failed to agree upon a verdict.
In these days when it is impossible to know everything, but it becomes necessary for success in any avocation to know something of everything and everything of something, the expert is more and more called upon as a witness both in civil and criminal cases. In these times of specialists, their services are often needed to aid the jury in their investigations of questions of fact relating to subjects with which the ordinary man is not acquainted.
The cross-examination of various experts, whether medical, handwriting, real estate, or other specialists, is a subject of growing importance, but it is intended in this chapter merely to make some suggestions, and to give a few illustrations of certain methods that may be adopted with more or less success in the examination of this class of witnesses.
It has become a matter of common observation that not only can the honest opinions of different experts be obtained upon opposite sides of the same question, but also that dishonest opinions may be obtained upon different sides of the same question.
Attention is also called to the distinction between mere matters of scientific fact and mere matters of opinion. For example: certain medical experts may be called to establish certain medical facts which are not mere matters of opinion. On such facts the experts could not disagree; but in the province of mere opinion it is well known that the experts differ so much among themselves that but little credit is given to mere expert opinion as such.
As a general thing, it is unwise for the cross-examiner to attempt to cope with a specialist in his own field of inquiry. Lengthy cross-examinations along the lines of the expert's theory are usually disastrous and should rarely be attempted.
Many lawyers, for example, undertake to cope with a medical or handwriting expert on his own ground,—surgery, correct diagnosis, or the intricacies of penmanship. In some rare instances (more especially with poorly educated physicians) this method of cross-questioning is productive of results. More frequently, however, it only affords an opportunity for the doctor to enlarge upon the testimony he has already given, and to explain what might otherwise have been misunderstood or even entirely overlooked by the jury. Experience has led me to believe that a physician should rarely be cross-examined on his own specialty, unless the importance of the case has warranted so close a study by the counsel of the particular subject under discussion as to justify theexperiment; and then only when the lawyer's research of the medical authorities, which he should have with him in court, convinces him that he can expose the doctor's erroneous conclusions, not only to himself, but to a jury who will not readily comprehend the abstract theories of physiology upon which even the medical profession itself is divided.
On the other hand, some careful and judicious questions, seeking to bring out separate facts and separate points from the knowledge and experience of the expert, which will tend to support the theory of the attorney's own side of the case, are usually productive of good results. In other words, the art of the cross-examiner should be directed to bring out such scientific facts from the knowledge of the expert as will help his own case, and thus tend to destroy the weight of the opinion of the expert given against him.
Another suggestion which should always be borne in mind is that no question should be put to an expert which is in any way so broad as to give the expert an opportunity to expatiate upon his own views, and thus afford him an opportunity in his answer to give his reasons, in his own way, for his opinions, which counsel calling him as an expert might not otherwise have fully brought out in his examination.
It was in the trial of Dr. Buchanan on the charge of murdering his wife, that a single, ill-advised question put upon cross-examination to the physician who had attendedMrs. Buchanan upon her death-bed, and who had given it as his opinion that her death was due to natural causes, which enabled the jury, after twenty-four hours of dispute among themselves, finally to agree against the prisoner on a verdict of murder in the first degree, resulting in Buchanan's execution.
The charge against Dr. Buchanan was that he had poisoned his wife—a woman considerably older than himself, and who had made a will in his favor—with morphine and atropine, each drug being used in such proportion as to effectually obliterate the group of symptoms attending death when resulting from the use of either drug alone.
At Buchanan's trial the district attorney found himself in the extremely awkward position of trying to persuade a jury to decide that Mrs. Buchanan's death was, beyond all reasonable doubt, the result of an overdose of morphine mixed with atropine administered by her husband, although a respectable physician, who had attended her at her death-bed, had given it as his opinion that she died from natural causes, and had himself made out a death certificate in which he attributed her death to apoplexy.
It was only fair to the prisoner that he should be given the benefit of the testimony of this physician. The District Attorney, therefore, called the doctor to the witness-stand and questioned him concerning the symptoms he had observed during his treatment of Mrs. Buchanan justprior to her death, and developed the fact that the doctor had made out a death certificate in which he had certified that in his opinion apoplexy was the sole cause of death. The doctor was then turned over to the lawyers for the defence for cross-examination.
One of the prisoner's counsel, who had far more knowledge of medicine than of the art of cross-examination, was assigned the important duty of cross-examining this witness. After badgering the doctor for an hour or so with technical medical questions more or less remote from the subject under discussion, and tending to show the erudition of the lawyer who was conducting the examination rather than to throw light upon the inquiry uppermost in the minds of the jury, the cross-examiner finally reproduced the death certificate and put it in evidence, and calling the doctor's attention to the statement therein made—that death was the result of apoplexy—exclaimed, while flourishing the paper in the air:—
"Now, doctor, you have told us what this lady's symptoms were, you have told us what you then believed was the cause of her death; I now ask you, has anything transpired since Mrs. Buchanan's death which would lead you to change your opinion as it is expressed in this paper?"
The doctor settled back in his chair and slowly repeated the question asked: "Has—anything—transpired—since—Mrs. Buchanan's—death—which—would—lead—me—to—change—my— opinion—as—it—is—expressed—in—this—paper?" The witness turned to the judge and inquired if in answer to such a question he would be allowed to speak of matters that had come to his knowledge since he wrote the certificate. The judge replied: "The question is a broad one. Counsel asks you if you know ofany reasonwhy you should change your former opinion?"
The witness leaned forward to the stenographer and requested him to read the question over again. This was done. The attention of everybody in court was by this time focussed upon the witness, intent upon his answer. It seemed to appear to the jury as if this must be the turning point of the case.
The doctor having heard the question read a second time, paused for a moment, and then straightening himself in his chair, turned to the cross-examiner and said, "I wish to askyoua question, Has the report of the chemist telling of his discovery of atropine and morphine in the contents of this woman's stomach been offered in evidence yet?" The court answered, "It has not."
"One more question," said the doctor, "Has the report of the pathologistyetbeen received in evidence?" The court replied, "No."
"Then" said the doctor, rising in his chair, "I can answer your question truthfully, thatas yetin the absence of the pathological report and in the absence of the chemical report I know of no legal evidence whichwould cause me to alter the opinion expressed in my death certificate."
It is impossible to exaggerate the impression made upon the court and jury by these answers. All the advantage that the prisoner might have derived from the original death certificate was entirely swept away.
The trial lasted for fully two weeks after this episode. When the jury retired to their consultation room at the end of the trial, they found they were utterly unable to agree upon a verdict. They argued among themselves for twenty-four hours without coming to any conclusion. At the expiration of this time the jury returned to the court room and asked to have the testimony of this doctor reread to them by the stenographer. The stenographer, as he read from his notes, reproduced the entire scene which had been enacted two weeks before. The jury retired a second time and immediately agreed upon their verdict of death.
The cross-examinations of the medical witnesses in the Buchanan case conducted by this same "Medico-legal Wonder" were the subject of very extended newspaper praise at the time, one daily paper devoting the entire front page of its Sunday edition to his portrait.
How expert witnesses have been discredited with juries in the past, should serve as practical guides for the future. The whole effect of the testimony of an expert witness may sometimes effectually be destroyed by putting the witness to some unexpected and offhand test at the trial,as to his experience, his ability and discrimination as an expert, so that in case of his failure to meet the test he can be held up to ridicule before the jury, and thus the laughter at his expense will cause the jury to forget anything of weight that he has said against you.
I have always found this to be the most effective method to cross-examine a certain type of professional medical witnesses now so frequently seen in our courts. A striking instance of the efficacy of this style of cross-examination was experienced by the writer in a damage suit against the city of New York, tried in the Supreme Court sometime in 1887.
A very prominent physician, president of one of our leading clubs at the time, but now dead, had advised a woman who had been his housekeeper for thirty years, and who had broken her ankle in consequence of stepping into an unprotected hole in the street pavement, to bring suit against the city to recover $40,000 damages. There was very little defence to the principal cause of action: the hole in the streetwasthere, and the plaintiffhadstepped into it; but her right to recover substantial damages was vigorously contested.
Her principal, in fact her only medical witness was her employer, the famous physician. The doctor testified to the plaintiff's sufferings, described the fracture of her ankle, explained how he had himself set the broken bones and attended the patient, but affirmed that all his efforts were of no avail as he could bring about nothingbut a most imperfect union of the bones, and that his housekeeper, a most respectable and estimable lady, would be lame for life. His manner on the witness-stand was exceedingly dignified and frank, and evidently impressed the jury. A large verdict of fully $15,000 was certain to be the result unless this witness's hold upon the jury could be broken on his cross-examination. There was no reason known to counsel why this ankle should not have healed promptly, as such fractures usually do; but how to make the juryrealizethe fact was the question. The intimate personal acquaintance between the cross-examiner and the witness was another embarrassment.
The cross-examination began by showing that the witness, although a graduate of Harvard, had not immediately entered a medical school, but on the contrary had started in business in Wall Street, had later been manager of several business enterprises, and had not begun the study of medicine until he was forty years old. The examination then continued in the most amiable manner possible, each question being asked in a tone almost of apology.
Counsel."We all know, doctor, that you have a large and lucrative family practice as a general practitioner; but is it not a fact that in this great city, where accidents are of such common occurrence, surgical cases are usually taken to the hospitals and cared for by experienced surgeons?"
Doctor."Yes, sir, that is so."
Counsel."You do not even claim to be an experienced surgeon?"
Doctor."Oh, no, sir. I have the experience of any general practitioner."
Counsel."What would be the surgical name for the particular form of fracture that this lady suffered?"
Doctor."What is known as a 'Potts fracture of the ankle.'"
Counsel."That is a well-recognized form of fracture, is it not?"
Doctor."Oh, yes."
Counsel(chancing it). "Would you mind telling the jury about when you had a fracture of this nature in your regular practice, the last before this one?"
Doctor(dodging). "I should not feel at liberty to disclose the names of my patients."
Counsel(encouraged). "I am not asking for names and secrets of patients—far from it. I am only asking for the date, doctor; but on your oath."
Doctor."I couldn't possibly give you the date, sir."
Counsel(still feeling his way). "Was it within the year preceding this one?"
Doctor(hesitating). "I would not like to say, sir."
Counsel(still more encouraged). "I am sorry to press you, sir; but I am obliged to demand a positive answer from you whether or not you had had a similar case of 'Potts fracture of the ankle' the year preceding this one?"
Doctor."Well, no, I cannot remember that I had."
Counsel."Did you have one two years before?"
Doctor."I cannot say."
Counsel(forcing the issue). "Did you have one within five years preceding the plaintiff's case?"
Doctor."I am unable to say positively."
Counsel, (appreciating the danger of pressing the inquiry further, but as a last resort). "Will you swear that youeverhad a case of 'Potts fracture' within your own practice before this one? I tell you frankly, if you say you have, I shall ask you day and date, time, place, and circumstance."
Doctor(much embarrassed). "Your question is an embarrassing one. I should want time to search my memory."
Counsel."I am only asking you for your best memory as a gentleman, and under oath."
Doctor."If you put it that way, I will say I cannot now remember of any case previous to the one in question, excepting as a student in the hospitals."
Counsel."But does it not require a great deal of practice and experience to attend successfully so serious a fracture as that involving the ankle joint?"
Doctor."Oh, yes."
Counsel."Well, doctor, speaking frankly, won't you admit that 'Potts fractures' are daily being attended to in our hospitals by experienced men, and the use of the ankle fully restored in a few months' time?"
Doctor."That may be, but much depends upon the age of the patient; and again, in some cases, nothing seems to make the bones unite."
Counsel(stooping under the table and taking up the two lower bones of the leg attached and approaching the witness). "Will you please take these, doctor, and tell the jury whether in life they constituted the bones of a woman's leg or a man's leg?"
Doctor."It is difficult to tell, sir."
Counsel."What, can't you tell the skeleton of a woman's leg from a man's, doctor?"
Doctor."Oh, yes, I should say it was a woman's leg."
Counsel(smiling and looking pleased). "So in your opinion, doctor, this was awoman'sleg?" [Itwasa woman's leg.]
Doctor(observing counsel's face and thinking he had made a mistake). "Oh, I beg your pardon, it is a man's leg, of course. I had not examined it carefully."
By this time the jury were all sitting upright in their seats and evinced much amusement at the doctor's increasing embarrassment.
Counsel(still smiling). "Would you be good enough to tell the jury if it is the right leg or the left leg?"
Doctor(quietly, but hesitatingly). [It is very difficult for the inexperienced to distinguish right from left.] "This is therightleg."
Counsel(astonished). "Whatdo you say, doctor?"
Doctor(much confused). "Pardon me, it is theleftleg."
Counsel."Were you not right the first time, doctor. Is it not in fact therightleg?"
Doctor."I don't think so; no, it is theleftleg."
Counsel(again stooping and bringing from under the table the bones of the foot attached together, and handing it to the doctor). "Please put the skeleton of the foot into the ankle joint of the bones you already have in your hand, and then tell me whether it is the right or left leg."
Doctor(confidently). "Yes, it is the left leg, as I said before."
Counsel(uproariously). "But, doctor, don't you see you have inserted thefootinto theknee joint? Is that the way it is in life?"
The doctor, amid roars of laughter from the jury, in which the entire court room joined, hastily readjusted the bones and sat blushing to the roots of his hair. Counsel waited until the laughter had subsided, and then said quietly, "I think I will not trouble you further, doctor."
This incident is not the least bit exaggerated; on the contrary, the impression made by the occurrence is difficult to present adequately on paper. Counsel on both sides proceeded to sum up the case, and upon the part of the defence no allusion whatsoever was made to the incident just described. The jury appreciated the fact,and returned a verdict for the plaintiff for $240. Next day the learned doctor wrote a four-page letter of thanks and appreciation that the results of his "stage fright" had not been spread before the jury in the closing speech.
An estimate of the susceptibility of occasional juries drawn from some country panels to have their attention diverted from the facts in a case by their fondness for entertainment has at times induced attorneys to try the experiment of framing their questions on cross-examination of medical experts so that the jury will be amused by the questions themselves and will overlook the damaging testimony given by a serious-minded and learned opposing medical witness.
An illustration of this was afforded not long ago by a case brought by a woman against the Trustees of the New York and Brooklyn Bridge. The plaintiff, while alighting from a bridge car, stepped into the space between the car and the bridge platform and fell up to her armpits. She claimed that she had sustained injuries to her ribs, lungs, and chest, and that she was suffering from resultant pleurisy and intercostal neuritis. A specialist on nerve injuries, called by the defence, had testified that there was nothing the matter with the plaintiff, as he had tested her with the stethoscope and had made a thorough examination, had listened at her chest to detect such "rales" as are generally left after pleurisy, and had failed to find any lesions or injuries to the pleural nerves whatsoever.
The attorney for the plaintiff, Mirabeau L. Towns of Brooklyn, had evidently correctly "sized up" the particular jury who were to decide his case, and proceeded to cross-examine the doctor inrhyme, which the learned physician, absorbed in his task of defending himself, did not notice until the laughter of the jury advised him that he was being made ridiculous.
Mr. Towns arose and said:—
Q."Now, doctor, please listen to me. You say for the sake of a modest fee you examined the plaintiff most carefully?"
A."I tried to do my duty, sir."
Q."But you saw no more than you wanted to see?"
A."What do you mean, sir?"
Q."Well, you laid your head upon her chest?"
A."I did."
Q."That was a most delightful test?"
A."Well, it is the common way of ascertaining if there is anything abnormal in the lungs."
Q."And you mean to say, doctor, that if your ears are as good as mine, and with your knowledge of medicine, a mangled pleura's rale and rattle you'd hear as plain as guns in battle?"
A."I mean to say this, and no more,—that it would be impossible, if a person was suffering from a lacerated pleura, for me not to detect it by the test I made."
Q."Now, you did this most carefully?"
A."I did."
Q."For you had to earn your expert's fee?"
A."Of course I was paid for my examination, but that had nothing to do with it. I want you to understand that I made my examination most conscientiously."
Q."Can you swear that you saw no more than you wanted to see?"
A."I saw nothing."
Q."And each of her ribs, on your oath as a scholar, was as good and sound as a daddy's dollar?"
(Outburst of laughter, and the judge used his gavel. Dr. —— appealed to the court for protection, but Mr. Towns continued.)
Q."You say you think she was malingering?"
A."I do."
Q."So when the poor creature ventured to cope with you and your science and your stethoscope, for her you'll acknowledge there was little hope?"
A."I have come here to tell the truth, and I maintain that it would be very hard for a young woman of her type to deceive me."
(Renewed laughter and the judge's gavel fell with greater force. Counsel was admonished, but he continued.)
Q."She might scream in anguish till the end of her breath, your opinion once formed you'd hold until death?"
Not answered.
Q."Though she fell through a hole clear up to her arm, and that's quite a fall, it did her no harm; infact, if she'd fallen from Mount Chimborazo, you'd say she's unhurt and continue to say so. Such a fall from such a height, one might observe, might break all her ribs, but ne'er injure a nerve?"
The Doctor."Your honor, I don't wish to be made ridiculous by this gentleman, and I protest against his questions, they are unfair."
Before the court could rule, Mr. Towns continued:—
Q."And you hope to be seized with the dance of St. Vitus if you found on the plaintiff intercostal neuritis?"
The Doctor."Your Honor, I refuse to answer."
Here the judge interfered and admonished counsel that he had pursued this line of inquiry long enough.
That Mr. Towns was correct in his estimate of this absurd panel of jurors was shown by a very large verdict in favor of his client, and by a request signed by each one of the jurors personally that counsel would send them a copy of his cross-examination of the defendant's doctor.
As distinguished from the lengthy, though doubtless scientific, cross-examination of experts in handwriting with which the profession has become familiar in many recent famous trials that have occurred in this city, the following incident cannot fail to serve as a forcible illustration of the suggestions laid down as to the cross-examination of specialists. It would almost be thought improbable in a romance, yet every word of it is true.
In the trial of Ellison for felonious assault upon William Henriques, who had brought Mr. Ellison's attentions to his daughter, Mrs. Lila Noeme, to a sudden close by forbidding him his house, the authenticity of some letters, alleged to have been written by Mrs. Noeme to Mr. Ellison, was brought in question. The lady herself had strenuously denied that the alleged compromising documents had ever been written by her. Counsel for Ellison, the late Charles Brooke, Esq., had evidently framed his whole cross-examination of Mrs. Noeme upon these letters, and made a final effort to introduce them in evidence by calling Professor Ames, the well-known expert in handwriting. He deposed to having closely studied the letter in question, in conjunction with an admittedly genuine specimen of the lady's handwriting, and gave it as his opinion that they were all written by the same hand. Mr. Brooke then offered the letters in evidence, and was about to read them to the jury when the assistant district attorney asked permission to put a few questions.
District Attorney."Mr. Ames, as I understood you, you were given only one sample of the lady's genuine handwriting, and you base your opinion upon that single exhibit, is that correct?"
Witness."Yes, sir, there was only one letter given me, but that was quite a long one, and afforded me great opportunity for comparison."
District Attorney."Would it not assist you if youwere given a number of her letters with which to make a comparison?"
Witness."Oh, yes, the more samples I had of genuine handwriting, the more valuable my conclusion would become."
District Attorney(taking from among a bundle of papers a letter, folding down the signature and handing it to the witness). "Would you mind taking this one and comparing it with the others, and then tell us if that is in the same handwriting?"
Witness(examining paper closely for a few minutes). "Yes, sir, I should say that was the same handwriting."
District Attorney."Is it not a fact, sir, that the same individual may write a variety of hands upon different occasions and with different pens?"
Witness."Oh, yes, sir; they might vary somewhat."
District Attorney(taking a second letter from his files, also folding over the signature and handing to the witness). "Won't you kindly take this letter, also, and compare it with the others you have?"
Witness(examining the letter). "Yes, sir, that is a variety of the same penmanship."
District Attorney."Would you be willing to give it as your opinion that it was written by the same person?"
Witness."I certainly would, sir."
District Attorney(taking a third letter from his files, again folding over the signature, and handing to the witness). "Be good enough to take just one more sample—Idon't want to weary you—and say if this last one is also in the lady's handwriting."
Witness(appearing to examine it closely, leaving the witness-chair and going to the window to complete his inspection). "Yes, sir, you understand I am not swearing to a fact, only an opinion."
District Attorney(good-naturedly). "Of course I understand; but is it your honest opinion as an expert, that these three letters are all in the same handwriting?"
Witness."I say yes, it is my honest opinion."
District Attorney."Now sir, won't you please turn down the edge where I folded over the signature to the first letter I handed you, and read aloud to the jury the signature?"
Witness(unfolding the letter and reading triumphantly). "Lila Noeme."
District Attorney."Please unfold the second letter and read the signature."
Witness(reading). "William Henriques."
District Attorney."Now the third, please."
Witness(hesitating and reading with much embarrassment). "Frank Ellison!"[10]
The alleged compromising letters were never read to the jury.
Much depends upon thesequencein 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 hasmade 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 to-day?" "Didyou tell your counsel about it?" "Were you intending to deceive him?" "What was your object in trying to mislead the jury?"[11]
"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 pulledthatnail 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 oftenenable 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 answerat 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 ofself-contradictions from which he will never be able to extricate himself.
Some witnesses, though unwilling to perjure themselves, are yet determined not to tell thewholetruth 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 ofthe 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 fora 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 exposeto 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.[12]