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Wellman: The Art of Cross-Examination

In the preceding chapters it was attempted to offer a few suggestions, gathered from experience, for the proper handling of an honest witness who, through ignorance or partisanship, and more or less unintentionally, had testified to a mistaken state of facts injurious to our side of the litigation. In the present chapter it is proposed to discuss the far more difficult task of exposing, by the arts of cross-examination, the intentional fraud, the perjured witness. Here it is that the greatest ingenuity of the trial lawyer is called into play; here rules help but little as compared with years of actual experience. What can be conceived more difficult in advocacy than the task of proving a witness, whom you may neither have seen nor heard of before he gives his testimony against you, to be a wilful perjurer, as it were out of his own mouth?

It seldom happens that a witness’s entire testimony is false from beginning to end. Perhaps the greater part of it is true, and only the crucial part (the point, however, on which the whole case may turn) is wilfully false. If, at the end of his direct testimony, we conclude that the witness we have to cross-examine (to continue the imaginary trial we were conducting in the previous chapter) comes under this class, what means are we to employ to expose him to the jury?

Let us first be certain we are right in our estimate of him – that he intends perjury. Embarrassment is one of the emblems of perjury, but by no means always so. The novelty and difficulty of the situation of being called upon to testify before a room full of people, with lawyers on all sides ready to ridicule or abuse, often occasions embarrassment in witnesses of the highest integrity. Then again some people are constitutionally nervous and could be nothing else when testifying in open court. Let us be sure our witness is not of this type before we subject him to the particular form of torture we have in store for the perjurer.

Witnesses of a low grade of intelligence, when they testify falsely, usually display it in various ways: in the voice, in a certain vacant expression of the eyes, in a nervous twisting about in the witness chair, in an apparent effort to recall to mind the exact wording of their story, and especially in the use of language not suited to their station in life. On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language. If, however, the manner of the witness and the wording of his testimony bear all the earmarks of fabrication, it is often useful, as your first question, to ask him to repeat his story. Usually he will repeat it in almost identically the same words as before, showing he has learned it by heart. Of course it is possible, though not probable, that he has done this and still is telling the truth. Try him by taking him to the middle of his story, and from there jump him quickly to the beginning and then to the end of it. If he is speaking by rote rather than from recollection, he will be sure to succumb to this method. He has no facts with which to associate the wording of his story; he can only call it to mind as a whole, and not in detachments. Draw his attention to other facts entirely disassociated with the main story as told by himself. He will be entirely unprepared for these new inquiries, and will draw upon his imagination for answers. Distract his thoughts again to some new part of his main story and then suddenly, when his mind is upon another subject, return to those considerations to which you had first called his attention, and ask him the same questions a second time. He will again fall back upon his imagination and very likely will give a different answer from the first and you have him in the net. He cannot invent answers as fast as you can invent questions, and at the same time remember his previous inventions correctly; he will not keep his answers all consistent with one another. He will soon become confused and, from that time on, will be at your mercy. Let him go as soon as you have made it apparent that he is not mistaken, but lying.

An amusing account is given in the Green Bag for November, 1891, of one of Jeremiah Mason’s cross-examinations of such a witness. “The witness had previously testified to having heard Mason’s client make a certain statement, and it was upon the evidence of that statement that the adversary’s case was based. Mr. Mason led the witness round to his statement, and again it was repeated verbatim. Then, without warning, he walked to the stand, and pointing straight at the witness said, in his high, impassioned voice, ‘Let’s see that paper you’ve got in your waistcoat pocket! ‘Taken completely by surprise, the witness mechanically drew a paper from the pocket indicated, and handed it to Mr. Mason. The lawyer slowly read the exact words of the witness in regard to the statement, and called attention to the fact that they were in the handwriting of the lawyer on the other side.

“‘Mr. Mason, how under the sun did you know that paper was there?’ asked a brother lawyer. ‘Well,’ replied Mr. Mason, ‘I thought he gave that part of his testimony just as if he’d heard it, and I noticed every time he repeated it he put his hand to his waistcoat pocket, and then let it fall again when he got through.’”

Daniel Webster considered Mason the greatest lawyer that ever practised at the New England Bar. He said of him, “I would rather, after my own experience, meet all the lawyers I have ever known combined in a case, than to meet him alone and single-handed.” Mason was always reputed to have possessed to a marked degree “the instinct for the weak point” in the witness he was cross-examining.

If perjured testimony in our courts were confined to the ignorant classes, the work of cross-examining them would be a comparatively simple matter, but unfortunately for the cause of truth and justice this is far from the case. Perjury is decidedly on the increase, and at the present time scarcely a trial is conducted in which it does not appear in a more or less flagrant form. Nothing in the trial of a cause is so difficult as to expose the perjury of a witness whose intelligence enables him to hide his lack of scruple. There are various methods of attempting it, but no uniform rule can be laid down as to the proper manner to be displayed toward such a witness. It all depends upon the individual character you have to unmask. In a large majority of cases the chance of success will be greatly increased by not allowing the witness to see that you suspect him, before you have led him to commit himself as to various matters with which you have reason to believe you can confront him later on.

Two famous cross-examiners at the Irish Bar were Sergeant Sullivan, afterwards Master of the Rolls in Ireland, and Sergeant Armstrong. Barry O’Brien, in his “Life of Lord Russell,” describes their methods. “Sullivan,” he says, “approached the witness quite in a friendly way, seemed to be an impartial inquirer seeking information, looked surprised at what the witness said, appeared even grateful for the additional light thrown on the case. ‘Ah, indeed! Well, as you have said so much, perhaps you can help us a little further. Well, really, my Lord, this is a very intelligent man.’ So playing the witness with caution and skill, drawing him stealthily on, keeping him completely in the dark about the real point of attack, the ‘little sergeant’ waited until the man was in the meshes, and then flew at him and shook him as a terrier would a rat.

“The ‘big Sergeant’ (Armstrong) had more humor and more power, but less dexterity and resource. His great weapon was ridicule. He laughed at the witness and made everybody else laugh. The witness got confused and lost his temper, and then Armstrong pounded him like a champion in the ring.”

In some cases it is wise to confine yourself to one or two salient points on which you feel confident you can get the witness to contradict himself out of his own mouth. It is seldom useful to press him on matters with which he is familiar. It is the safer course to question him on circumstances connected with his story, but to which he has not already testified and for which he would not be likely to prepare himself.

A simple but instructive example of cross-examination, conducted along these lines, is quoted from Judge J. W. Donovan’s “Tact in Court.” It is doubly interesting in that it occurred in Abraham Lincoln’s first defence at a murder trial.

“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 been ten feet?

Witness. No, it was twenty feet or 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 think this pistol was the one used?

Witness. It looks like it.

Lincoln. You could see the 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 ye twiste.

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, and read from a page with careful deliberation that the moon on that night was unseen and only arose at one the next morning.

“Following this climax Mr. Lincoln moved the arrest of the perjured witness as the real murderer, saying: ‘Nothing but a motive to clear himself could 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 exposing a 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 accomplished one such coup, 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. He was 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.”1

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 setback from 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 “ATMOSPHERE of 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 few cases 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 excellent reputation 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 the other 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 in detail 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, has leisure 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 witness wouldn’t say anything, counsel for plaintiff didn’t dare to say anything, and counsel for the city didn’t want to 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.


  1. “Hints on Advocacy,” Harris. ↩︎