The Art of Cross-Examination/Chapter 7
CHAPTER VII
SILENT CROSS-EXAMINATION
nothing could be more absurd or a greater waste of time than to cross-examine a witness who has testified to no material fact against you. And yet, strange as it may seem, the courts are full of young lawyers—and alas! not only young ones—who seem to feel it their duty to cross-examine every witness who is sworn. They seem afraid that their clients or the jury will suspect them of ignorance or inability to conduct a trial. It not infrequently happens that such unnecessary examinations result in the development of new theories of the case for the other side; and a witness who might have been disposed of as harmless by mere silence, develops into a formidable obstacle in the case.
The infinite variety of types of witnesses one meets with in court makes it impossible to lay down any set rules applicable to all cases. 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. In such cases by far the better course is to keep your seat and ask no questions at all. Much depends also, as will be readily appreciated, upon the age and sex of the witness. 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. Rise suddenly, as if you intended to cross-examine. The witness will turn a determined face toward you, preparatory to demolishing you with her first answer. This is the signal for you to hesitate a moment. Look her over good-naturedly and as if you were in doubt whether it would be worth while to question her—and sit down. It can be done by a good actor in such a manner as to be equivalent to saying to the jury, "What's the use? she is only a woman."
John Philpot Curran, known as the most popular advocate of his time, and second only to Erskine as a jury lawyer, once indulged himself in this silent mode of cross-examination, but made the mistake of speaking his thoughts aloud before he sat down. "There is no use asking you questions, for I see the villain in your face." "Do you, sir?" replied the witness with a smile. "I never knew before that my face was a looking-glass."
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.
An amusing instance of this occurred in the trial of Alphonse Stephani, indicted for the murder of Clinton G. Reynolds, a prominent lawyer in New York, who had had the management and settlement of his father's estate. The defence was insanity; but the prisoner, though evidently suffering from the early stages of some serious brain disorder, was still not insane in the legal acceptation of the term. He was convicted of murder in the second degree and sentenced to a life imprisonment.
Stephani was defended by the late William F. Howe, Esq., who was certainly one of the most successful lawyers of his time in criminal cases. Howe was not a great lawyer, but the kind of witnesses ordinarily met with in such cases he usually handled with a skill that was little short of positive genius.
Dr. Alan McLean Hamilton, the eminent alienist, had made a special study of Stephani's case, had visited him for weeks at the Tombs Prison, and had prepared himself for a most exhaustive exposition of his mental condition. Dr. Hamilton had been retained by Mr. Howe, and was to be put forward by the defence as their chief witness. Upon calling him to the witness-chair, however, he did not question his witness so as to lay before the jury the extent of his experience in mental disorders and his familiarity with all forms of insanity, nor develop before them the doctor's peculiar opportunities for judging correctly of the prisoner's present condition. The wily advocate evidently looked upon District Attorney DeLancey Nicoll and his associates, who were opposed to him, as a lot of inexperienced youngsters, who would cross-examine at great length and allow the witness to make every answer tell with double effect when elicited by the state's attorney. It has always been supposed that it was a preconceived plan of action between the learned doctor and the advocate. In accordance therewith, and upon the examination-in-chief, Mr. Howe contented himself with this single inquiry:—
"Dr. Hamilton, you have examined the prisoner at the Bar, have you not?"
"I have, sir," replied Dr. Hamilton.
"Is he, in your opinion, sane or insane?" continued Mr. Howe.
"Insane," said Dr. Hamilton.
"You may cross-examine," thundered Howe, with one of his characteristic gestures. There was a hurried consultation between Mr. Nicoll and his associates.
"We have no questions," remarked Mr. Nicoll, quietly.
"What!" exclaimed Howe, "not ask the famous Dr. Hamilton a question? Well, I will," and turning to the witness began to ask him how close a study he had made of the prisoner's symptoms, etc.; when, upon our objection, Chief Justice Van Brunt directed the witness to leave the witness-box, as his testimony was concluded, and ruled that inasmuch as the direct examination had been finished, and there had been no cross-examination, there was no course open to Mr. Howe but to call his next witness!
Mr. Sergeant Ballantine in his autobiography, "Some Experiences of a Barrister's Life," gives an account of the trial for murder of a young woman of somewhat prepossessing appearance, who was charged with poisoning her husband. "They were people in a humble class of life, and it was suggested that she had committed the act to obtain possession of money from a burial fund, and also that she was on terms of improper intimacy with a young man in the neighborhood. A minute quantity of arsenic was discovered in the body of the deceased, which in the defence I accounted for by the suggestion that poison had been used carelessly for the destruction of rats. Mr. Baron Parke charged the jury not unfavorably to the prisoner, dwelling pointedly upon the small quantity of arsenic found in the body, and the jury without much hesitation acquitted her. Dr. Taylor, the professor of chemistry and an experienced witness, had proved the presence of arsenic, and, as I imagine, to the great disappointment of my solicitor, who desired a severe cross-examination, I did not ask him a single question. He was sitting on the bench and near the judge, who, after he had summed up and before the verdict was pronounced, remarked to him that he was surprised at the small amount of arsenic found; upon which Taylor said that if he had been asked the question, he should have proved that it indicated, under the circumstances detailed in evidence, that a very large quantity had been taken. The professor had learned never to volunteer evidence, and the counsel for the prosecution had omitted to put the necessary question. Mr. Baron Parke, having learned the circumstance by accidental means, did not feel warranted in using the information, and I had my first lesson in the art of 'silent cross-examination.'"