Cross-examination

“ David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, "A lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place he didn't care." This is something on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greatest blunders in cross-examination. Certainly no lawyer should ask a critical question unless he is sure of the answer. ”

“ 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. ”

“ Cross-examination is not merely the art of making the witness cross. If your opponent’s witness proves nothing against your client, cross-examine vigorously. By this means the truth is often brought out and justice is done. ”

“ In fact, it may be said that the truly great trial lawyer is he who, while knowing perfectly well the established rules of his art, appreciates when they should be broken. If the witness happens to be a woman, and at the close of her testimony-in-chief it seems that she will be more than a match for the cross-examiner, it often works like a charm with the jury to practise upon her what may be styled the silent cross-examination. ”

“ 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. ”

“ But in cross-examination he is the more open to insult, because the court does not see clearly how he arrives at his conclusions, and suspects whatever it does not understand. Hence, not a few of the most eminent men in every department of science distinctly and peremptorily refuse to be mixed up in any affair which may expose them to cross-examination. ”

“ We are not trying to make a reputation for ourselves with the audience as "smart" cross-examiners. We are thinking rather of our client and our employment by him to win the jury upon his side of the case. Let us also avoid asking questions recklessly, without any definite purpose. Unskilful questions are worse than none at all, and only tend to uphold rather than to destroy the witness.
All through the direct testimony of our imaginary witness, it will remembered, we were watching his every movement and expression. Did we find an opening for our cross-examination? ”

“ A witness ought not to be pressed in cross-examination as to any facts which, if admitted, would not affect the question at issue or the credibility of the witness. If the cross-examiner intends to adduce evidence contrary to the evidence given by the witness, he ought to put to the witness in cross-examination the substance of the evidence which he proposes to adduce, in order to give the witness an opportunity of retracting or explaining. ”

“ Russell's maxim for cross-examination was, "Go straight at the witness and at the point; throw your cards on the table, mere finesse English juries do not appreciate."
Speaking of Russell's success as a cross-examiner, his biographer, Barry O'Brien says: "It was a fine sight to see him rise to cross-examine. His very. appearance must have been a shock to the witness,—the manly, defiant bearing, the noble brow, the haughty look, the remorseless mouth, those deep-set eyes, widely opened, and that searching glance which pierced the very soul. ”

“ Since the sole object of cross-examination is to break the force of the adverse testimony, it must be remembered that a futile attempt only strengthens the witness with the jury. It cannot be too often repeated, therefore, that saying nothing will frequently accomplish more than hours of questioning. It is experience alone that can teach us which method to adopt. ”

“ Whatever benefit younger attorneys and law-students may derive from Mr. Wellman's advice and counsel depends upon the application of it. The author makes it very clear that what is good, cross-examination in one case is dangerous tactics in another. The cross-examiner must not fuss with his notes, but must watch every move of his witness as a prizefighter watches his opponent, sparring guardedly for an opening, landing a telling blow at the first opportunity and making every hit tell. ”

“ In addressing a jury you may sometimes talk without having anything to say, and no harm will come of it. But in cross-examination every question that does not advance your cause injures it. If you have not a definite object to attain, dismiss the witness without a word. There are no harmless questions here; the most apparently unimportant may bring destruction or victory. If the summit of the orator's art has been rightly defined to consist in knowing when to sit down, that of an advocate may be described as knowing when to keep his seat. ”

“ One seldom comes in contact with a witness who is in all respects like any one he has ever examined before; it is this that constitutes the fascination of the art. The particular method you use in any given case depends upon the degree of importance you attach to the testimony given by the witness, even if it is false. It may be that you have on your own side so many witnesses who will contradict the testimony, that it is not worth while to hazard the risks you will necessarily run by undertaking an elaborate cross-examination. ”

“ If by experience we have learned the first lesson of our art,—to control our manner toward the witness even under the most trying circumstances,—it then becomes important that we should turn our attention to the matter of our cross-examination. ”

“ 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. ”

“ Cross-examination is the right of the party against whom the witness is called, and the right is a valuable one as a means of separating hearsay from knowledge, error from truth, opinion from fact, and inference from recollection, and as a means of ascertaining the order of the events as narrated by the witness in his examination in chief, and the time and place when and where they occurred, and the attending circumstances, and of testing the intelligence, memory, impartiality, truthfulness, and integrity of the witness ”

“ Very little experience in our courts will teach you this lesson, for every day will show to your observant eye instances of self-destruction brought about by imprudent cross-examination. Fear not that your discreet reserve may be mistaken for carelessness or want of self-reliance. The true motive will soon be seen and approved. Your critics are lawyers, who know well the value of discretion in an advocate; and how indiscretion in cross-examination cannot be compensated by any amount of ability in other duties. The attorneys are sure to discover the prudence that governs your tongue. ”

“ One is constantly brought face to face with lawyers who act as if they thought that every one who testifies against their side of the case is committing wilful perjury. No wonder they accomplish so little with their cross-examination! By their shouting, brow-beating style they often confuse the wits of the witness, it is true; but they fail to discredit him with the jury. ”

“ V. Never call a witness whom your adversary will be compelled to call. This will afford you the privilege of cross-examination,—take from your opponent the same privilege it thus gives to you,—and, in addition thereto, not only render everything unfavorable said by the witness doubly operative against the party calling him, but also deprive that party of the power of counteracting the effect of the testimony. ”

“ The inexperienced examiner in all probability will repeat the question with the idea of impressing the admission upon his hearers, instead of reserving it for the summing up, and will attribute it to bad luck that his witness corrects his answer or modifies it in some way, so that the point is lost. He is indeed a poor judge of human nature who supposes that if he exults over his success during the cross-examination, he will not quickly put the witness on his guard to avoid all future favorable disclosures. ”

“ CROSS-EXAMINATION OF EXPERTS
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 average mind is much wiser than many suppose. Questions can be put to a witness under cross-examination, in argumentative form, often with far greater effect upon the minds of the jury than if the same line of reasoning were reserved for the summing up. ”

“ It is capable of abuse. It is in the stream of inculpation. Cross-examination can play only a limited role in offsetting false inference or misleading coincidence from a 'stacked' handwriting exemplar. The Court's reference to the efficacy of cross-examination in this situation is much more of a comfort to an appellate court than a source of solace to the defendant and his counsel. ”

“ On the contrary, they elicit sympathy for the witness they are attacking, and little realize that their "vigorous cross-examination," at the end of which they sit down with evident self-satisfaction, has only served to close effectually the mind of at least one fair-minded juryman against their side of the case, and as likely as not it has brought to light some important fact favorable to the other side which had been overlooked in the examination-in-chief. ”

“ It is difficult to say exactly what it is, excepting that constant practice seems to enable a trial lawyer to form a fairly accurate judgment on this point. A skilful cross-examiner seldom takes his eye from an important witness while he is being examined by his adversary. Every expression of his face, especially his mouth, even every movement of his hands, his manner of expressing himself, his whole bearing—all help the examiner to arrive at an accurate estimate of his integrity. ”

“ West, moreover, perforce stands for the proposition that confrontation is indifferent to any limitations on the nature of cross-examination at a preliminary hearing that underlie the dissent in this case.↑ While the importance of the right to cross-examine is not to be minimized, see 5 Wigmore, supra, § 1367, the desirability of excluding otherwise relevant evidence simply because it has not been tested by cross-examination has been frequently questioned. ”

“ If all witnesses had the honesty and intelligence to come forward and scrupulously follow the letter as well as the spirit of the oath, "to tell the truth, the whole 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. ”

“ First Cross-examination K. was informed by telephone that there would be a small hearing concerning his case the following Sunday. He was made aware that these cross examinations would follow one another regularly, perhaps not every week but quite frequently. On the one hand it was in everyone's interest to bring proceedings quickly to their conclusion, but on the other hand every aspect of the examinations had to be carried out thoroughly without lasting too long because of the associated stress. ”

“ As to the exception to the ruling of the court on the admission of evidence in the case. The cross-examination of Hayes was very long, and took a wide range: much wider than is allowed in United States courts in the case of an ordinary witness, where the cross-examination is usually confined within the scope of the direct examination. [5] But a greater latitude is undoubtedly allowable in the cross-examination of a party who places himself on the stand than in that of other witnesses. ”

“ One of the chief disadvantages of our present system will be suddenly swept away; the court calendars will be cleared by speedily conducted trials; issues will be tried within a reasonable time after they are framed; the commercial cases, now disadvantageously settled out of court or abandoned altogether, will return to our courts to the satisfaction both of the legal profession and of the business community at large; causes will be more skilfully tried—the art of cross-examination more thoroughly understood. ”

“ 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." ”