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I 



THE ART OF CROSS-EXAMINATION 



f^>^' 



THE ART OF 



CROSS-EXAMINATION 



BY 

FRANCIS Lf WELLMAN 

OF THE NEW YORK BAR 



WITH THE CROSS-EXAMINATIONS OF IMPORTANT 
WITNESSES IN SOME CELEBRATED CASES 



NEW AND ENLARGED EDITION 



THE MACMILLAN COMPANY 

LONDON: MACMILLAN & CO., LTD. 
I919 

All rip-'ir, 'eserved 




LGfar 

hf4-SZ,Z 
60011 0^ 

2-4 .15% 



Copyright, 1903, 1904, 
By the MACMILLAN COMPANY. 



Set up, electrotyped, and published December, 1903. Reprinted 
January, twice, February, igo4. Revised edition September, 1904; 
January, 1903; July, 1906 ; March, 1908 ; April, 1910; August, 1911; 
February, 1913; September, 1916. 



Norvfood Prett 

y. S. Cusbing & Co. — Berivick & Smith Co. 

Norwood, Mast.f U.S.A. 



RODERIC AND ALLEN 

WHO HAVE EXPRESSED THEIR INTENTION 
TO ENTER THE LEGAL PROFESSION 

THIS BOOK 

IS AFFECTIONATELY DEDICATED 



"Cross-examination, — the rarest, the most useful, and 
the most difficult to be acquired of all the accomplishments 
of the advocate. ... It has always been deemed the surest 
test of truth and a better security than the oath." — Cox. 



PREFACE TO THE SECOND 
EDITION 

I PRESUME it is the experience of every author, after 
his first book is pubHshed upon an important subject, 
to be almost overwhelmed with a wealth of ideas and 
illustrations which could readily have been included in 
his book, and which to his own mind, at least, seem to 
make a second edition inevitable. Such certainly was 
the case with me ; and when the first edition had 
reached its sixth impression in five months, I rejoiced 
to learn that it seemed to my publishers that the book 
had met with a sufficiently favorable reception to justify 
a second and considerably enlarged edition. 

The book has practically been rewritten, so impor- 
tant are the additions, although the first few chapters 
have been left very much as they were. 

The chapter on the " Cross-examination of Experts " 
has been rearranged, many new examples added, and 
the discussion much extended. 

There is a new chapter on " Cross-examination to the 
Fallacies of Testimony," which is intended to be a brief 
discussion of the philosophy of oral evidence. 

There is also a new chapter on " Cross-examination 

7 



PREFACE 

to Probabilities, — Personality of the Examiner, etc.," 
with many instructive illustrations. 

Perhaps one of the most entertaining additions is the 
chapter devoted to " The Celebrated Breach of Promise 
Case of Martinez v. Del Valle," in which one of Mr. 
Joseph H. Choate's most subtle cross-examinations is 
given at length, with explanatory annotations. This 
case is placed first among the examples of celebrated 
cross-examinations because of these annotations. They 
are intended to guide the student and to indicate to 
him some of the methods that are used by great cross- 
examiners, in order that he may have a clearer under- 
standing of the methods used in the cross-examinations 
in the chapters that follow. 

Extracts from the cross-examination of Guiteau, Presi- 
dent Garfield's assassin, conducted by Mr. John K. 
Porter, comprise another new chapter. 

In the place of Mr. Choate's cross-examination of 
Russell Sage in the third trial (extracts of which were 
given in the first edition), the far more instructive and 
amusing cross-examination that took place in the secofid 
trial has been substituted. 

Whatever in the first edition was merely amusing, or, 
if instructive, was somewhat obscure, has been omitted ; 
so that quite one-half the present edition is entirely new 
matter, and of a more serious character. 

One important feature of the book is the fact that the 
cases and illustrations are all real, and many of them 

8 



PREFACE 

heretofore almost unknown to the profession. They have 
not been intentionally misrepresented or exaggerated. 

This new edition of my book is submitted with the 
hope that my readers may take as much pleasure in its 
perusal as I have done in the researches necessary to its 
preparation. 

Bar Harbor, Maine, 
September i, 1904. 



PREFACE 

In offering this book to the legal profession I do 
not intend to arrogate to myself any superior knowledge 
upon the subject, excepting in so far as it may have 
been gleaned from actual experience. Nor have I 
attempted to treat the subject in any scientific, elabo- 
rate, or exhaustive way; but merely to make some 
suggestions upon the art of cross-examination, which 
have been gathered as a result of twenty-five years' 
court practice, during which time I have examined and 
cross-examined about fifteen thousand witnesses, drawn 
from all classes of the community. 

If what is here written affords anything of instruction 
to the younger members of my profession, or of interest 
or entertainment to the public, it will amply justify the 
time taken from my summer vacation to put in readable 
form some points from my experience upon this most 
difficult subject. 

Bar Harbor, Maine, 
September i, 1903. 



10 



CONTENTS 

PART I: THE PRINCIPLES OF CROSS- 
EXAMINATION 

CHAPTER 'AGB 

I. INTRODUCTORY 13 

II. THE MANNER OF CROSS-EXAMINATION ... 21 

III. THE MATTER OF CROSS-EXAMINATION ... 34 

IV. CROSS-EXAMINATION OF THE PERJURED WITNESS 50 
V. CROSS-EXAMINATION OF EXPERTS .... 72 

VI. THE SEQUENCE OF CROSS-EXAMINATION . .118 

VII. SILENT CROSS-EXAMINATION 126 

VIII. CROSS-EXAMINATION TO THE "FALLACIES OF TES- 
TIMONY" 139 

IX. CROSS-EXAMINATION TO PROBABILITIES — PER- 
SONALITY OF THE EXAMINER, ETC. . . .154 

X. CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES 171 
XI. SOME FAMOUS CROSS-EXAMINERS AND THEIR 

METHODS 182 

PART II: SOME FAMOUS EXAMPLES OF CROSS- 
EXAMINATION 

XII. THE CROSS-EXAMINATION OF MISS MARTINEZ BY 
HON. JOSEPH H. CHOATE, IN THE CELEBRATED 
BREACH OF PROMISE CASE, MARTINEZ V. DEL 

VALLE 209 

II 



CONTENTS 

CHAPTER PAGE 

XIII. THE CROSS-EXAMINATION OF RICHARD PIGOTT 

BEFORE THE PARNELL COMMISSION, BY SIR 
CHARLES RUSSELL 290 

XIV. THE CROSS-EXAMINATION OF DR. IN THE 

CARLYLE W. HARRIS CASE 309 

XV. THE CROSS-EXAMINATION OF THOMAS J. MIN- 

NOCK IN THE BELLEVUE HOSPITAL CASE . 325 

XVI. THE CROSS-EXAMINATION OF GUITEAU, THE 
ASSASSIN OF PRESIDENT GARFIELD, BY MR. 
JOHN K. PORTER 357 

XVII. THE CROSS-EXAMINATION OF RUSSELL SAGE IN 
LAIDLAW V. SAGE (SECOND TRIAL), BY MR. 
JOSEPH H. CHOATE 378 

XVIII. GOLDEN RULES FOR THE EXAMINATION OF 

WITNESSES 397 



12 



CHAPTER I 

INTRODUCTORY 

" The issue of a cause rarely depends upon a speech 
and is but seldom even affected by it. But there is never 
a cause contested, the result of which is not mainly de- 
pendent upon the skill with which the advocate conducts 
his cross-examination." 

This is the conclusion arrived at by one of England's 
greatest advocates at the close of a long and eventful 
career at the Bar. It was written some fifty years ago 
and at a time when oratory in public trials was at its 
height. It is even more true at the present time, when 
what was once commonly reputed a " great speech " is 
seldom heard in our courts, — because the modern meth- 
ods of practising our profession have had a tendency 
to discourage court oratory and the development of 
orators. The old-fashioned orators who were wont 
to " grasp the thunderbolt " are now less in favor 
than formerly. With our modern jurymen the arts of 
oratory, — "law-papers on fire," as Lord Brougham's 
speeches used to be called, — though still enjoyed as im- 
passioned literary efforts, have become almost useless as 
persuasive arguments or as a " summing up " as they are 
now called. 

13 



THE ART OF CROSS-EXAMINATION 

Modern juries, especially in large cities, are composed 
of practical business men accustomed to think for them- 
selves, experienced in the ways of life, capable of forming 
estimates and making nice distinctions, unmoved by the 
passions and prejudices to which court oratory is nearly 
always directed. Nowadays, jurymen, as a rule, are wont 
to bestow upon testimony the most intelligent and pains- 
taking attention, and have a keen scent for truth. It is 
not intended to maintain that juries are no longer human, 
or that in certain cases they do not still go widely astray, 
led on by their prejudices if not by their passions. Nev- 
ertheless, in the vast majority of trials, the modern jury- 
man, and especially the modern city juryman, — it is 
in our large cities that the greatest number of litigated 
cases is tried, — comes as near being the model arbiter of 
fact as the most optimistic champion of the institution of 
trial by jury could desire. 

I am aware that many members of my profession still 
sneer at trial by jury. Such men, however, — when not 
among the unsuccessful and disgruntled, — will, with but 
few exceptions, be found to have had but little practice 
themselves in court, or else to belong to that ever grow- 
ing class in our profession who have relinquished their 
court practice and are building up fortunes such as were 
never dreamed of in the legal profession a decade ago, 
by becoming what may be styled business lawyers — 
men who are learned in the law as a profession, but who 
through opportunity, combined with rare commercial abil- 

14 



INTRODUCTORY 

ity, have come to apply their learning — especially their 
knowledge of corporate law — to great commercial enter- 
prises, combinations, organizations, and reorganizations, 
and have thus come to practise law as a business. 

To such as these a book of this nature can have but 
little interest. It is to those who by choice or chance 
are, or intend to become, engaged in that most laborious 
of all forms of legal business, the trial of cases in court, 
that the suggestions and experiences which follow are 
especially addressed. 

It is often truly said that many of our best lawyers 
— I am speaking now especially of New York City — 
are withdrawing from court practice because the nature 
of the litigation is changing. To such an extent is this 
change taking place in some localities that the more im- 
portant commercial cases rarely reach a court decision. 
Our merchants prefer to compromise their difficulties, 
or to write off their losses, rather than enter into litiga- 
tions that must remain dormant in the courts for upward 
of three years awaiting their turn for a hearing on the 
overcrowded court calendars. And yet fully six thou- 
sand cases of one kind or another are tried or disposed 
of yearly in the Borough of Manhattan alone. 

This congestion is not wholly due to lack of judges, 
or that they are not capable and industrious men ; but is 
largely, it seems to me, the fault of the system in vogue 
in all our American courts of allowing any lawyer, duly 
enrolled as a member of the Bar, to practise in the 

15 



THE ART OF CROSS-EXAMINATION 

highest courts. In the United States we recognize no 
distinction between barrister and solicitor; we are all 
barristers and solicitors by turn. One has but to fre- 
quent the courts to become convinced that, so long as 
the ten thousand members at the New York County 
Bar all avail themselves of their privilege to appear in 
court and try their own clients' cases, the great majority 
of the trials will be poorly conducted, and much valuable 
time wasted. 

The conduct of a case in court is a peculiar art for 
which many men, however learned in the law, are not 
fitted ; and where a lawyer has but one or even a dozen 
experiences in court in each year, he can never become 
a competent trial lawyer. I am not addressing myself 
to clients, who often assume that, because we are duly 
qualified as lawyers, we are therefore competent to try 
their cases ; I am speaking in behalf of our courts, 
against the congestion of the calendars, and the conse- 
quent crowding out of weighty commercial litigations. 

One experie7iced in the trial of causes will not require, 
at the utmost, more than a quarter of the time taken by 
the most learned inexperienced lawyer in developing his 
facts. His case will be thoroughly prepared and under- 
stood before the trial begins. His points of law and 
issues of fact will be clearly defined and presented to the 
court and jury in the fewest possible words. He will in 
this way avoid many of the erroneous rulings on ques- 
tions of law and evidence which are now upsetting so 

i6 



INTRODUCTORY 

many verdicts on appeal. He will not only complete 
his trial in shorter time, but he will be likely to bring 
about an equitable verdict in the case which may not be 
appealed from at all, or, if appealed, will be sustained by 
a higher court, instead of being sent back for a retrial 
and the consequent consumption of the time of another 
judge and jury in doing the work all over again.^ 

These facts are being more and more appreciated each 
year, and in our local courts there is already an ever 
increasing coterie of trial lawyers, who are devoting the 
principal part of their time to court practice. 

A few lawyers have gone so far as to refuse direct 
communication with clients excepting as they come rep- 
resented by their own attorneys. It is pleasing to note 
that some of our leading advocates who, having been 
called away from large and active law practice to enter 
the government service, have expressed their intention, 
when they resume the practice of the law, to refuse all 
cases where clients are not already represented by com- 
petent attorneys, recognizing, at least in their own prac- 
tice, the English distinction between the barrister and 
solicitor. We are thus beginning to appreciate in this 
country what the English courts have so long recog- 
nized: that the only way to insure speedy and intelli- 
gently conducted litigations is to inaugtirate a custom 

^ In the Borough of Manhattan at the present time thirty-three per cent of 
the cases tried are appealed, and forty-two per cent of the cases appealed are 
reversed and sent back for re-trial as shown by the court statistics. 

B 17 



THE ART OF CROSS-EXAMINATION 

of confining court practice to a comparatively limited 
number of trained trial lawyers. 

The distinction between general practitioners and 
specialists is already established in the medical profes- 
sion and largely accepted by the public. Who would 
think nowadays of submitting himself to a serious opera- 
tion at the hands of his family physician, instead of 
calling in an experienced surgeon to handle the knife? 
And yet the family physician may have once been com- 
petent to play the part of surgeon, and doubtless has 
had, years ago, his quota of hospital experience. But 
he so infrequently enters the domain of surgeiy that he 
shrinks from undertaking it, except under circumstances 
where there is no alternative. There should be a simi- 
lar distinction in the legal profession. The family law- 
yer may have once been competent to conduct the 
litigation ; but he is out of practice — he is not " in 
training " for the competition. 

There is no short cut, no royal road to proficiency, in 
the art of advocacy. It is experience, and one might 
almost say experience alone, that brings success. I am 
not speaking of that small minority of men in all walks 
of life who have been touched by the magic wand of 
genius, but of men of average endowments and even 
special aptitude for the calling of advocacy ; with them 
it is a race of experience. The experienced advocate 
can look back upon those less advanced in years or expe- 
rience, and rest content in the thought that they are just 

i8 



INTRODUCTORY 

so many cases behind him; that if he keeps on, with 
equal opportunities in court, they can never overtake 
him. Some day the public will recognize this fact. 
But at present, what does the ordinary litigant know of 
the advantages of having counsel to conduct his case 
who is " at home " in the court room, and perhaps even 
acquainted with the very panel of jurors before whom 
his case is to be heard, through having already tried one 
or more cases for other clients before the same men ? 
How little can the ordinary business man realize the 
value to himself of having a lawyer who understands the 
habits of thought and of looking at evidence — the bent 
of mind — of the very judge who is to preside at the 
trial of his case. Not that our judges are not eminently 
fair-minded in the conduct of trials ; but they are men 
for all that, oftentimes very human men ; and the trial 
lawyer who knows his judge, starts with an advantage 
that the inexperienced practitioner little appreciates. 
How much, too, does experience count in the selection 
of the jury itself — one of the " fine arts" of the advocate ! 
These are but a few of the many similar advantages one 
might enumerate, were they not apart from the subject 
we are now concerned with — the skill of the advocate 
in conducting the trial itself, once the jury has been 
chosen. 

When the public realizes that a good trial lawyer is 
the outcome, one might say of generations of witnesses, 
when clients fully appreciate the dangers they run in 

19 



THE ART OF CROSS-EXAMINATION 

intrusting their litigations to so-called " office lawyers " 
with little or no experience in court, they will insist upon 
their briefs being intrusted to those who make a spe- 
cialty of court practice, advised and assisted, if you will, 
by their own private attorneys. One of the chief dis- 
advantages 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 commu- 
nity at large; causes will be more skilfully tried — the 
art of cross-examination more thoroughly understood. 



90 



CHAPTER II 

THE MANNER OF CROSS-EXAMINATION 

It needs but the simple statement of the nature of 
cross-examination to demonstrate its indispensable char- 
acter in all trials of questions of fact. No cause reaches 
the stage of litigation unless there are two sides to it. 
If the witnesses on one side deny or qualify the state- 
ments made by those on the other, which side is telling 
the truth ? Not necessarily which side is offering per- 
jured testimony, — there is far less intentional perjury in 
the courts than the inexperienced would believe, — but 
which side is honestly mistaken ? — for, on the other 
hand, evidence itself is far less trustworthy than the 
public usually realizes. The opinions of which side are 
warped by prejudice or blinded by ignorance ? Which 
side has had the power or opportunity of correct observa- 
tion ? How shall we tell, how make it apparent to a jury 
of disinterested men who are to decide between the liti- 
gants ? Obviously, by the means of cross-examination. 

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 

21 



THE ART OF CROSS-EXAMINATION 

truth, and nothing but the truth," and if all advocates on 
either side had the necessary experience, combined with 
honesty and intelligence, and were similarly sworn to 
develop the whole truth and nothing but the truth, of 
course there would be no occasion for cross-examination, 
and the occupation of the cross-examiner would be gone. 
But as yet no substitute has ever been found for cross- 
examination as a means of separating truth from false- 
hood, and of reducing exaggerated statements to their 
true dimensions. 

The system is as old as the history of nations. In- 
deed, to this day, the account given by Plato of Socrates's 
cross-examination of his accuser, Miletus, while defending 
himself against the capital charge of corrupting the youth 
of Athens, may be quoted as a masterpiece in the art of 
cross-questioning. 

Cross-examination is generally considered to be the 
most difficult branch of the multifarious duties of the 
advocate. Success in the art, as some one has said, 
comes more often to the happy possessor of a genius 
for it. Great lawyers have often failed lamentably in 
it, while marvellous success has crowned the efforts of 
those who might otherwise have been regarded as of a 
mediocre grade in the profession. Yet personal expe- 
rience and the emulation of others trained in the art, 
are the surest means of obtaining proficiency in this 
all-important prerequisite of a competent trial lawyer. 

It requires the greatest ingenuity; a habit of logical 

22 



THE MANNER OF CROSS-EXAMINATION 

thought ; clearness of perception in general ; infinite 
patience and self-control ; power to read men's minds 
intuitively, to judge of their characters by their faces, to 
appreciate their motives ; ability to act with force and 
precision; a masterful knowledge of the subject-matter 
itself ; an extreme caution ; and, above all, the instmct to 
discover the weak point in the witness under examina- 
tion. 

One has to deal with a prodigious variety of witnesses 
testifying under an infinite number of differing circum- 
stances. It involves all shades and complexions of 
human morals, human passions, and human intelligence. 
It is a mental duel between counsel and witness. 

In discussing the methods to employ when cross- 
examining a witness, let us imagine ourselves at work in 
the trial of a cause, and at the close of the direct exami- 
nation of a witness called by our adversary. The first 
inquiry would naturally be, Has the witness testified to 
anything that is material against us ? Has his testimony 
injured our side of the case } Has he made an impres- 
sion with the jury against us ? Is it necessary for us to 
cross-examine him at all } 

Before dismissing a witness, however, the possibility 
of being able to elicit some new facts in our own favor 
should be taken into consideration. If the witness is 
apparently truthful and candid, this can be readily done 
by asking plain, straightforward questions. If, however, 
there is any reason to doubt the willingness of the wit- 

23 



THE ART OF CROSS-EXAMINATION 

ness to help develop the truth, it may be necessary to 
proceed with more caution, and possibly to put the wit- 
ness in a position where it will appear to the jury that he 
could tell a good deal if he wanted to, and then leave 
him. The jury will thus draw the inference that, had he 
spoken, it would have been in our favor. 

But suppose the witness has testified to material facts 
against us, and it becomes our duty to break the force 
of his testimony, or abandon all hope of a jury verdict. 
How shall we begin ? How shall we tell whether the 
witness has made an honest mistake, or has committed 
perjury? The methods in his cross-examination in the 
two instances would naturally be very different. There 
is a marked distinction between discrediting the testi- 
Tfioiiy and discrediting the witness. It is largely a matter 
of instinct on the part of the examiner. Some people 
call it the language of the eye, or the tone of the voice, 
or the countenance of the witness, or his manner of tes- 
tifying, or all combined, that betrays the wilful perjurer. 
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. 

24 



THE MANNER OF CROSS-EXAMINATION 

Let us assume, then, that we have been correct in our 
judgment of this particular witness, and that he is trying to 
describe honestly the occurrences to which he has testified, 
but has fallen into a serious mistake, through ignorance, 
blunder, or what not, which must be exposed to the minds 
of the jury. How shall we go about it ? This brings 
us at once to the first important factor in our discus- 
sion, the mangier of the cross-examiner. 

It is absurd to suppose that any witness who has sworn 
positively to a certain set of facts, even if he has inadver- 
tently stretched the truth, is going to be readily induced 
by a lawyer to alter them and acknowledge his mistake. 
People as a rule do not reflect upon their meagre oppor- 
tunities for observing facts, and rarely suspect the frailty 
of their own powers of observation. They come to 
court, when summoned as witnesses, prepared to tell 
what they think they know ; and in the beginning they 
resent an attack upon their story as they would one upon 
their integrity. 

If the cross-examiner allows the witness to see, by his 
manner toward him at the start, that he distrusts his 
integrity, he will straighten himself in the witness chair 
and mentally defy him at once. If, on the other hand, 
the counsel's manner is courteous and conciliatory, the 
witness will soon lose the fear all witnesses have of the 
cross-examiner, and can almost imperceptibly be induced 
to enter into a discussion of his testimony in a fair- 
minded spirit, which, if the cross-examiner is clever, will 

25 



THE ART OF CROSS-EXAMINATION 

soon disclose the weak points in the testimony. The 
sympathies of the jury are invariably on the side of the 
witness, and they are quick to resent any discourtesy 
toward him. They are willing to admit his mistakes^ 
if you can make them apparent, but are slow to believe 
\i\vci guilty of perjury. Alas, how often this is lost sight 
of in our daily court experiences ! 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. 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. 

There is a story told of Reverdy Johnson, who once, 
in the trial of a case, twitted a brother lawyer with 
feebleness of memory, and received the prompt retort, 
" Yes, Mr. Johnson ; but you will please remember that, 
unlike the lion in the play, I have something more to do 
than roarr 

26 



THE MANNER OF CROSS-EXAMINATION 

The only lawyer I ever heard employ this roaring 
method successfully was Benjamin F. Butler. With him 
politeness, or even humanity, was out of the question. 
And it has been said of him that "concealment and 
equivocation were scarcely possible to a witness under 
the operation of his methods." But Butler had a won- 
derful personality. He was aggressive and even pugna- 
cious, but picturesque withal — witnesses were afraid of 
him. Butler was popular with the masses ; he usually 
had the numerous " hangers-on " in the court room on 
his side of the case from the start, and each little point 
he would make with a witness met with their ready and 
audible approval. This greatly increased the embarrass- 
ment of the witness and gave Butler a decided advan- 
tage. It must be remembered also that Butler had a 
contempt for scruple which would hardly stand him in 
good stead at the present time. Once he was cross- 
questioning a witness in his characteristic manner. 
The judge interrupted to remind him that the witness 
was a Harvard professor. " I know it, your Honor," 
replied Butler ; " we hanged one of them the other day." ^ 

On the other hand, it has been said of Rufus Choate, 
whose art and graceful qualities of mind certainly entitle 
him to the foremost rank among American advocates, 
that in the cross-examination of witnesses, "He never 
aroused opposition on the part of the witness by attack- 
ing him, but disarmed him by the quiet and courteous 

1 " Life Sketches of Eminent Lawyers," G. J. Clark, Esq. 
27 



THE ART OF CROSS-EXAMINATION 

manner in which he pursued his examination. He was 
quite sure, before giving him up, to expose the weak 
parts of his testimony or the bias, if any, which detracted 
from the confidence to be given it." ^ [One of Choate's 
bon mots was that " a lawyer's vacation consisted of the 
space between the question put to a witness and his 
answer."] 

Judah P. Benjamin, " the eminent lawyer of two con- 
tinents," used to cross-examine with his eyes. " No 
witness could look into Benjamin's black, piercing eyes 
and maintain a lie." 

Among the English barristers. Sir James Scarlett, 
:^ Lord Abinger, had the reputation, as a cross-examiner, 
of having outstripped all advocates who, up to that 
time, had appeared at the British Bar. " The gentle- 
manly ease, the polished courtesy, and the Christian 
urbanity and ajffection, with which he proceeded to the 
task, did infinite mischief to the testimony of witnesses 
who were striving to deceive, or upon whom he found 
it expedient to fasten a suspicion." 

A good advocate should be a good actor. The most 
cautious cross-examiner will often elicit a damaging an- 
swer. Now is the time for the greatest self-control. If 
you show by your face how the answer hurt, you may 
lose your case by that one point alone. How often 
one sees the cross-examiner fairly staggered by such an 
answer. He pauses, perhaps blushes, and after he has 

1 " Memories of Rufus Choate," Neilson. 
28 



THE MANNER OF CROSS-EXAMINATION 

allowed the answer to have its full effect, finally regains 
his self-possession, but seldom his control of the witness. 
With the really experienced trial lawyer, such answers, 
instead of appearing to surprise or disconcert him, will 
seem to come as a matter of course, and will fall perfectly 
flat. He will proceed with the next question as if noth- 
ing had happened, or even perhaps give the witness an 
incredulous smile, as if to say, " Who do you suppose 
would believe that for a minute ? " 

An anecdote apropos of this point is told of Rufus 
Choate. " A witness for his antagonist let fall, with no 
particular emphasis, a statement of a most important fact 
from which he saw that inferences greatly damaging to 
his client's case might be drawn if skilfully used. He 
suffered the witness to go through his statement and 
then, as if he saw in it something of great value to 
himself, requested him to repeat it carefully that he 
might take it down correctly. He as carefully avoided 
cross-examining the witness, and in his argument made 
not the least allusion to his testimony. When the op- 
posing counsel, in his close, came to that part of his case 
in his argument, he was so impressed with the idea that 
Mr. Choate had discovered that there was something in 
that testimony which made in his favor, although he 
could not see how, that he contented himself with 
merely remarking that though Mr. Choate had seemed 
to think that the testimony bore in favor of his client, 
it seemed to him that it went to sustain the opposite 

29 



THE ART OF CROSS-EXAMINATION 

side, and then went on with the other parts of his 
case." ^ 

It is the love of combat which every man possesses 
that fastens the attention of the jury upon the progress 
of the trial. The counsel who has a pleasant person- 
ality ; who speaks with apparent frankness ; who appears 
to be an earnest searcher after truth ; who is courteous 
to those who testify against him ; who avoids delaying 
constantly the progress of the trial by innumerable ob- 
jections and exceptions to perhaps incompetent but 
harmless evidence ; who seems to know what he is 
about and sits down when he has accomplished it, ex- 
hibiting a spirit of fair play on all occasions — he it is 
who creates an atmosphere in favor of the side which 
he represents, a powerful though unconscious influence 
with the jury in arriving at their verdict. Even if, owing 
to the weight of testimony, the verdict is against him, 
yet the amount will be far less than the client had 
schooled himself to expect. 

On the other hand, the lawyer who wearies the court 
and the jury with endless and pointless cross-exami- 
nations ; who is constantly losing his temper and showing 
his teeth to the witnesses; who wears a sour, anxious 
expression ; who possesses a monotonous, rasping, pene- 
trating voice ; who presents a slovenly, unkempt persona] 
appearance ; who is prone to take unfair advantage of 
witness or counsel, and seems determined to win at all 

* " Memories of Rufus Choate," Neilson. 
30 



THE MANNER OF CROSS-EXAMINATION 

hazards — soon prejudices a jury against himself and 
the client he represents, entirely irrespective of the sworn 
testimony in the case. 

The evidence often seems to be going all one way, 
when in reality it is not so at all. The cleverness of the 
cross-examiner has a great deal to do with this ; he can 
often create an atmosphere which will obscure much evi- 
dence that would otherwise tell against him. This is 
part of the " generalship of a case " in its progress to the 
argument, which is of such vast consequence. There is 
eloquence displayed in the examination of witnesses as 
well as on the argument. " There is matter in manner^ 
I do not mean to advocate that exaggerated manner one 
often meets with, which divides the attention of your 
hearers between yourself and your question, which often 
diverts the attention of the jury from the point you are 
trying to make and centres it upon your own idiosyn- 
crasies of manner and speech. As the m.an who was 
somewhat deaf and could not get near enough to Henry 
Clay in one of his finest efforts, exclaimed, " I didn't 
hear a word he said, but, great Jehovah, didn't he make 
the motions ! " 

The very intonations of voice and the expression of 
face of the cross-examiner can be made to produce a 
marked effect upon the jury and enable them to appre- 
ciate fully a point they might otherwise lose altogether. 

" Once, when cross-examining a witness by the name 
of Sampson, who was sued for libel as editor of the 

31 



THE ART OF CROSS-EXAMINATION 

Referee, Russell asked the witness a question which he 
did not answer. ' Did you hear my question ? ' said 
Russell in a low voice. ' I did,' said Sampson. ' Did 
you understand it } ' asked Russell, in a still lower voice. 
' I did,' said Sampson. ' Then,' said Russell, raising his 
voice to its highest pitch, and looking as if he would 
spring from his place and seize the witness by the throat, 
'why have you not answered it? Tell the jury why 
you have not answered it.' A thrill of excitement ran 
through the court room. Sampson was overwhelmed, 
and he never pulled himself together again." ^ 

Speak distinctly yourself, and compel your witness to 
do so. Bring out your points so clearly that men of the 
most ordinary intelligence can understand them. Keep 
your audience — the jury — ^always interested and on the 
alert. Remember it is the minds of the jury you are 
addressing, even though your question is put to the wit- 
ness. Suit the modulations of your voice to the subject 
under discussion. Rufus Choate's voice would seem to 
take hold of the witness, to exercise a certain sway over 
him, and to silence the audience into a hush. He allowed 
his rich voice to exhibit in the examination of witnesses, 
much of its variety and all of its resonance. The contrast 
between his tone in examining and that of the counsel 
who followed him was very marked. 

" Mr. Choate's appeal to the jury began long before 
his final argument ; it began when he first took his seat 

1 " Life of Lord Russell," O'Brien. 
32 



THE MANNER OF CROSS-EXAMINATION 

before them and looked Into their eyes. He generally 
contrived to get his seat as near them as was convenient, 
if possible having his table close to the Bar, in front of 
their seats, and separated from them only by a narrow 
space for passage. There he sat, calm, contemplative ; 
in the midst of occasional noise and confusion solemnly 
unruffled ; always making some little headway either with 
the jury, the court, or the witness ; never doing a single 
thing which could by possibility lose him favor, ever doing 
some little thing to win it; smiling benignantly upon the 
counsel when a good thing was said ; smiling sympathiz- 
ingly upon the jury when any juryman laughed or made 
an inquiry ; wooing them all the time with his magnetic 
glances as a lover might woo his mistress ; seeming to 
preside over the whole scene with an air of easy superior- 
ity ; exercising from the very first moment an indefinable 
sway and influence upon the minds of all before and 
around him. His manner to the jury was that of a 
friend, a friend solicitous to help them through their 
tedious investigation ; never that of an expert combatant, 
intent on victory, and looking upon them as only instru- 
ments for its attainment." ^ 

1" Reminiscences of Rufus Choate," Parker. 



33 



CHAPTER III 

THE MATTER OF 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. By our manner toward 
him we may have in a measure disarmed him, or at least 
put him off his guard, while his memory and conscience 
are being ransacked by subtle and searching questions, 
the scope of which shall be hardly apparent to himself ; 
but it is only with the matter of our cross-examination 
that we can hope to destroy him. 

What shall be our first mode of attack.? Shall we 
adopt the fatal method of those we see around us daily 
in the courts, and proceed to take the witness over the 
same story that he has already given our adversary, in 
the absurd hope that he is going to change it in the 
repetition, and not retell it with double effect upon the 
jury? Or shall we rather avoid carefully his original 
story, except in so far as is necessary to refer to it in 
order to point out its weak spots.? Whatever we do, 

34 



THE MATTER OF CROSS-EXAMINATION 

let us do it with quiet dignity, with absolute fairness to 
the witness ; and let us frame our questions in such sim- 
ple language that there can be no misunderstanding or 
confusion. Let us imagine ourselves in the jury box, so 
that we may see the evidence from their standpoint. We 
are not trying to make a reputation for ourselves with 
the audience as " smart " cross-examiners. We are think- 
ing 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 wit- 
ness, it will be remembered, we were watching his every 
movement and expression. Did we find an opening for 
our cross-examination ? Did we detect the weak spot in 
his narrative ? If so, let us waste no time, but go direct 
to the point. It may be that the witness's situation in 
respect to the parties or the subject-matter of the suit 
should be disclosed to the jury, as one reason why his 
testimony has been shaded somewhat in favor of the side 
on which he testifies. It may be that he has a direct 
interest in the result of the litigation, or is to receive 
some indirect benefit therefrom. Or he may have some 
other tangible motive which he can gently be made to 
disclose. Perhaps the witness is only suffering from 
that partisanship, so fatal to fair evidence, of which often- 
times the witness himself is not conscious. It may even 

35 



THE ART OF CROSS-EXAMINATION 

be that, if the jury only knew the scanty means the wit- 
ness has had for obtaining a correct and certain knowl- 
edge of the very facts to which he has sworn so glibly, 
aided by the adroit questioning of the opposing counsel, 
this in itself would go far toward weakening the effect 
of his testimony. It may appear, on the other hand, 
that the witness had the best possible opportunity to 
observe the facts he speaks of, but had not the intelli- 
gence to observe these facts correctly. Two people may 
witness the same occurrence and yet take away with 
them an entirely different impression of it; but each, 
when called to the witness stand, may be willing to swear 
to that impression as a fact. Obviously, both accounts 
of the same transaction cannot be true ; whose impres- 
sions were wrong.? Which had the better opportunity 
to see ? Which had the keener power of perception ? 
All this we may very properly term the matter of our 
cross-examination. 

It is one thing to have the opportunity of observation, 
or even the intelligence to observe correctly, but it is still 
another to be able to retain accurately, for any length of 
time, what we have once seen or heard, and what is per- 
haps more difficult still — to be able to describe it intelli- 
gibly. Many witnesses have seen one part of a transaction 
and heard about another part, and later on become con- 
fused in their own minds, or perhaps only in their modes 
of expression, as to what they have seen themselves and 
what they have heard from others. All witnesses are 

36 



THE MATTER OF CROSS-EXAMINATION 

prone to exaggerate — to enlarge or minimize the facts 
to which they take oath. 

A very common type of witness, met with almost 
daily, is the man who, having witnessed some event 
years ago, suddenly finds that he is to be called as a 
court witness. He immediately attempts to recall his 
original impressions ; and gradually, as he talks with the 
attorney who is to examine him, he amplifies his story 
with new details which he leads himself, or is led, to 
believe are recollections and which he finally swears to 
as facts. Many people seem to fear that an " I don't 
know " answer will be attributed to ignorance on their 
part. Although perfectly honest in intention, they are 
apt, in consequence, to complete their story by recourse 
to their imagination. And few witnesses fail, at least 
in some part of their story, to entangle facts with their 
own beliefs and inferences. 

All these considerations should readily suggest a line 
of questions, varying with each witness examined, that 
will, if closely followed, be likely to separate appearance 
from reality and to reduce exaggerations to their proper 
proportions. It must further be borne in mind that the 
jury should not merely see the mistake ; they should be 
made to appreciate at the time why and whence it arose. 
It is fresher then and makes a more lasting effect than 
if left until the summing up, and then drawn to the 
attention of the jury. 

The experienced examiner can usually tell, after a few 

37 



THE ART OF CROSS-EXAMINATION 

simple questions, what line to pursue. Picture the scene 
in your own mind ; closely inquire into the sources of 
the witness's information, and draw your own conclusions 
as to how his mistake arose, and why he formed his 
erroneous impressions. Exhibit plainly your belief in 
his integrity and your desire to be fair with him, and try 
to beguile him into being candid with you. Then when 
the particular foible which has affected his testimony has 
once been discovered, he can easily be led to expose it 
to the jury. His mistakes should be drawn out often by 
inference rather than by direct question, because all wit- 
nesses have a dread of self-contradiction. If he sees the 
connection between your inquiries and his own story, he 
will draw upon his imagination for explanations, before 
you get the chance to point out to him the inconsistency 
between his later statement and his original one. It is 
often wise to break the effect of a witness's story by put- 
ting questions to him that will acquaint the jury at once 
with the fact that there is another more probable story 
to be told later on, to disclose to them something of the 
defence, as it were. Avoid the mistake, so common 
among the inexperienced, of making much of trifling 
discrepancies. It has been aptly said that "juries have 
no respect for small triumphs over a witness's self-posses- 
sion or memory." Allow the loquacious witness to talk 
on ; he will be sure to involve himself in difficulties from 
which he can never extricate himself. Some witnesses 
prove altogether too much; encourage them and lead 

38 



THE MATTER OF CROSS-EXAMINATION 

them by degrees into exaggerations that will conflict 
with the common sense of the jury. Under no circum- 
stances put a false construction on the words of a witness; 
there are few faults in an advocate more fatal with a 
jury. 

If, perchance, you obtain a really favorable answer, 
leave it and pass quietly to some other inquiry. 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. 

David Graham, a prudent and successful cross-exam- 
iner, once said, perhaps more in jest than anything else, 
" A lawyer should never ask a witness on cross-examina- 
tion 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. 

Mr. Sergeant Ballantine, in his " Experiences," quotes 
an instance in the trial of a prisoner on the charge of 

39 



THE ART OF CROSS-EXAMINATION 

homicide, where a once famous Enghsh barrister had 
been induced by the urgency of an attorney, ahhough 
against his own judgment, to ask a question on cross- 
examination, the answer to which convicted his chent. 
Upon receiving the answer, he turned to the attorney who 
had advised him to ask it, and said, emphasizing every 
word, " Go home ; cut your throat ; and when you meet 
your chent in hell, beg his pardon." 

It is well, sometimes, in a case where you believe that 
the witness is reluctant to develop the whole truth, so to 
put questions that the answers you know will be elicited 
may come by way of a surprise and in the light of im- 
probability to the jury. I remember a recent incident, 
illustrative of this point, which occurred in a suit brought 
to recover the insurance on a large warehouse full of 
goods that had been burnt to the ground. The insur- 
ance companies had been unable to find any stock-book 
which would show the amount of goods in stock at the 
time of the fire. One of the witnesses to the fire hap- 
pened to be the plaintiff's bookkeeper, who on the direct 
examination testified to all the details of the fire, but 
nothing about the books. The cross-examination was 
confined to these few pointed questions. 

" I suppose you had an iron safe in your oflBce, in 
which you kept your books of account ? " " Yes, sir." — 
" Did that burn up ? " " Oh, no." — " Were you present 
when it was opened after the fire ? " " Yes, sir." — " Then 
won't you be good enough to hand me the stock-book 

40 



THE MATTER OF CROSS-EXAMINATION 

that we may show the jury exactly what stock you had 
on hand at the time of the fire on which you claim loss ? 
(This was the point of the case and the jury were not 
prepared for the answer which followed.) " I haven't 
it, sir." — "What, haven't the stock-book.? You don't 
mean you have lost it } " " It wasn't in the safe, sir." — 
"Wasn't that the proper place for it.?" "Yes, sir." — 
" How was it that the book wasn't there ? " " It had 
evidently been left out the night before the fire by mis- 
take." Some of the jury at once drew the inference 
that the all-important stock-book was being suppressed, 
and refused to agree with their fellows against the insur- 
ance companies. 

The average mind is much wiser than many suppose. 
Questions can be put to awitness 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. The juryman sees 
the point for himself, as if it were his own discovery, and 
clings to it all the more tenaciously. During the cross- 
examination of Henry Ward Beecher, in the celebrated 
Tilton-Beecher case, and after Mr. Beecher had denied 
his alleged intimacy with Mr. Tilton's wife. Judge Ful- 
lerton read a passage from one of Mr. Beecher's sermons 
to the effect that if a person commits a great sin, the 
exposure of which would cause misery to others, such a 
person would not be justified in confessing it, merely 
to relieve his own conscience. Fullerton then looked 

41 



THE ART OF CROSS-EXAMINATION 

straight into Mr. Beecher's eyes and said, " Do you still 
consider that sound doctrine ? " Mr. Beecher replied, 
" I do." The inference a juryman might draw from this 
question and answer would constitute a subtle argument 
upon that branch of the case. 

The entire effect of the testimony of an adverse wit- 
ness can sometimes be destroyed by a pleasant little 
passage-at-arms in which he is finally held up to ridicule 
before the jury, and all that he has previously said against 
you disappears in the laugh that accompanies him from 
the witness box. In a recent Metropolitan Street Rail- 
way case a witness who had been badgered rather per- 
sistently on cross-examination, finally straightened himself 
up in the witness chair and said pertly, " I have not come 
here asking you to play with me. Do you take me for 
Anna Held .? " ^ "I was not thinking of Anna Held," re- 
plied the counsel quietly ; " supposing you try Ananias ! " 
The witness was enraged, the jury laughed, and the 
lawyer, who had really made nothing out of the witness 
up to this time, sat down. 

These little triumphs are, however, by no means always 
one-sided. Often, if the counsel gives him an opening, a 
clever witness will counter on him in a most humiliating 
fashion, certain to meet with the hearty approval of jury 
and audience. At the Worcester Assizes, in England, a 
case was being tried which involved the soundness of a 

^ This occurrence was at the time when the actress Anna Held was singing 
her popular stage song, " Won't you come and play with me." 

42 



THE MATTER OF CROSS-EXAMINATION 

horse, and a clergyman had been called as a witness who 
succeeded only in giving a rather confused account of 
the transaction. A blustering counsel on the other side, 
after many attempts to get at the facts upon cross- 
examination, blurted out, " Pray, sir, do you know the 
difference between a horse and a cow ? " " I acknowledge 
my ignorance," replied the clergyman ; " I hardly do know 
the difference between a horse and a cow, or between a 
bull and a bully — only a bull, I am told, has horns, and 
a bully (bowing respectfully to the counsel), luckily for 
me, has none."^ Reference is made in a subsequent 

chapter to the cross-examination of Dr. in the 

Carlyle Harris case, where is related at length a striking 
example of success in this method of examination. 

It may not be uninteresting to record in this connec- 
tion one or two cases illustrative of matter that is valu- 
able in cross-examination in personal damage suits 
where the sole object of counsel is to reduce the amount 
of the jury's verdict, and to puncture the pitiful tale of 
suffering told by the plaintiff in such cases. 

A New York commission merchant, named Metts, 
sixty-six years of age, was riding in a Columbus Avenue 
open car. As the car neared the curve at Fifty-third 
Street and Seventh Avenue, and while he was in the act 
of closing an open window in the front of the car at the 
request of an old lady passenger, the car gave a sudden, 
violent lurch, and he was thrown into the street, receiv- 

^ " Curiosities of Law and Lawyers." 

43 



THE ART OF CROSS-EXAMINATION 

ing injuries from which, at the time of the trial, he had 
suffered for three years. 

Counsel for the plaintiff went into his client's suffer- 
ings in great detail. Plaintiff had had concussion of the 
brain, loss of memory, bladder difficulties, a broken leg, 
nervous prostration, constant pain in his back. And the 
attempt to alleviate the pain attendant upon all these 
difficulties was gone into with great detail. To cap all, 
the attending physician had testified that the reasonable 
value of his professional services was the modest sum of 
$2500. 

Counsel for the railroad, before cross-examining, had 
made a critical examination of the doctor's face and bear- 
ing in the witness chair, and had concluded that, if pleas- 
antly handled, he could be made to testify pretty nearly 
to the truth, whatever it might be. He concluded to 
spar for an opening, and it came within the first half- 
dozen questions : — 

Cou7isel. " What medical name, doctor, would you give 
to the plaintiff's present ailment } " 

Doctor. " He has what is known as 'traumatic microsis.'" 

Counsel. " Microsis, doctor } That means, does it not, 
the habit, or disease as you may call it, of making much 
of ailments that an ordinary healthy man would pass by 
as of no account .? " 

Doctor. " That is right, sir." 

C^?^;^^^/ (smiling). "I hope you haven't got this dis- 
ease, doctor, have you } " 

44 



THE MATTER OF CROSS-EXAMINATION 

Doctor. *' Not that I am aware of, sir." 

Counsel. " Then we ought to be able to get a very 
fair statement from you of this man's troubles, ought we 
not?" 

Doctor. " I hope so, sir." 

The opening had been found; witness was already 
flattered into agreeing with all suggestions, and warned 
against exaggeration. 

Counsel. " Let us take up the bladder trouble first. 
Do not practically all men who have reached the age of 
sixty-six have troubles of one kind or another that result 
in more or less irritation of the bladder? " 

Doctor. " Yes, that is very common with old men." 

Counsel. " You said Mr. Metts was deaf in one ear. 
I noticed that he seemed to hear the questions asked him 
in court particularly well ; did you notice it ? " 

Doctor. " I did." 

Counsel. " At the age of sixty-six are not the majority 
of men gradually failing in their hearing ? " 

Doctor. " Yes, sir, frequently." 

Counsel. " Frankly, doctor, don't you think this man 
hears remarkably well for his age, leaving out the deaf 
ear altogether ? " 

Doctor. " I think he does." 

Counsel (keeping the ball rolling). " I don't think you 
have even the first symptoms of this ' traumatic microsis/ 
doctor." 

Doctor (pleased). " I haven't got it at all." 

45 



THE ART OF CROSS-EXAMINATION 

Counsel. " You said Mr. Metts had had concussion of 
the brain. Has not every boy who has fallen over back- 
ward, when skating on the ice, and struck his head, also 
had what you physicians would call * concussion of the 
brain ' .? " 

Doctor. " Yes, sir." 

Counsel. " But I understood you to say that this 
plaintiff had had, in addition, haemorrhages of the brain. 
Do you mean to tell us that he could have had haemor- 
rhages of the brain and be alive to-day ? " 

Doctor. " They were microscopic haemorrhages." 

Counsel. " That is to say, one would have to take a 
microscope to find them } " 

Doctor. " That is right." 

Counsel. " You do not mean us to understand, doc- 
tor, that you have not cured him of these microscopic 
haemorrhages ? " 

Doctor. " I have cured him ; that is right." 

Counsel. " You certainly were competent to set his 
broken leg or you wouldn't have attempted it ; did you 
get a good union ? " 

Doctor. " Yes, he has got a good, strong, healthy 
leg." 

Counsel having elicited, by the " smiling method," all 
the . required admissions, suddenly changed his whole 
bearing toward the witness, and continued pointedly : — 

Counsel "And you said that $2500 would be a fair 
and reasonable charge for your services. It is three 

46 



THE MATTER OF CROSS-EXAMINATION 

years since Mr. Metts was injured. Have you sent him 
no bill ? " 

Doctor. " Yes, sir, I have." 

Counsel. " Let me see it. (Turning to plaintiff's 
counsel.) Will either of you let me have the bill.?" 

Doctor. " I haven't it, sir." 

Counsel (astonished). " What was the amount of it ? " 

Doctor. "^looo." 

Counsel (savagely). " Why do you charge the railroad 
company two and a half times as much as you charge 
the patient himself ? " 

Doctor (embarrassed at this sudden change on part 
of counsel). "You asked me what my services were 
worth." 

Counsel. " Didn't you charge your patient the full 
worth of your services .? " 

Doctor (no answer). 

Counsel (quickly). " How much have you been paid 
on your bill — on your oath } " 

Doctor. "He paid me $ioo at one time, that is, two 
years ago ; and at two different times since he has paid 
me $30." 

Counsel "And he is a rich commission merchant 
down town ! " (And with something between a sneer 
and a laugh counsel sat down.) 

An amusing incident, leading to the exposure of a 
manifest fraud, occurred recently in another of the many 
damage suits brought against the Metropolitan Street 

47 



THE ART OF CROSS-EXAMINATION 

Railway and growing out of a collision between two of 
the company's electric cars. 

The plaintiff, a laboring man, had been thrown to the 
street pavement from the platform of the car by the 
force of the collision, and had dislocated his shoulder. 
He had testified in his own behalf that he had been 
permanently injured in so far as he had not been able 
to follow his usual employment for the reason that he 
could not raise his arm above a point parallel with his 
shoulder. Upon cross-examination the attorney for the 
railroad asked the witness a few sympathetic questions 
about his sufferings, and upon getting on a friendly 
basis with him asked him " to be good enough to show 
the jury the extreme limit to which he could raise his 
arm since the accident." The plaintiff slowly and with 
considerable difficulty raised his arm to the parallel of 
his shoulder. " Now, using the same arm, show the 
jury how high you could get it up before the accident," 
quietly continued the attorney ; whereupon the witness 
extended his arm to its full height above his head, amid 
peals of laughter from the court and jury. 

In a case of murder, to which the defence of insanity 
was set up, a medical witness called on behalf of the 
accused swore that in his opinion the accused, at the 
time he killed the deceased, was affected with a homi- 
cidal mania, and urged to the act by an irresistible im- 
pulse. The judge, not satisfied with this, first put the 
witness some questions on other subjects, and then 

48 



THE MATTER OF CROSS-EXAMINATION 

asked, " Do you think the accused would have acted as 
he did if a policeman had been present ? " to which the 
witness at once answered in the negative. Thereupon 
the judge remarked, " Your definition of an irresistible 
impulse must then be an impulse irresistible at all times 
except when a policeman is present." 



49 



CHAPTER IV 

CROSS-EXAMINATION OF THE PERJURED WITNESS 

In the preceding chapters it was attempted to offer a 
few suggestions, gathered from experience, for the proper 
handhng of an honest witness who, through ignorance or 
partisanship, and more or less unintentionally, had testi- 
fied 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 difificult task of exposing, by the 
arts of cross-examination, the intentional Fraud, the per- 
jured 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, how- 
ever, on which the whole case may turn — is wilfully 

50 



CROSS-EXAMINATION OF PERJURED WITNESS 

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 — 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 ap- 
parent 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 

51 



THE ART OF CROSS-EXAMINATION 

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 

52 



CROSS-EXAMINATION OF PERJURED WITNESS 

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 an- 
swers 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-exami- 
nations 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 state- 
ment 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 com- 
pletely 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 thai 
paper was there t ' asked a brother lawyer. ' Well,' 

53 



THE ART OF CROSS-EXAMINATION 

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. Noth- 
ing 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 wit- 
ness to see that you suspect him, before you have led him 

54 



CROSS-EXAMINATION OF PERJURED WITNESS 

to commit himself as to various matters with which you 
have reason to beheve 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 seek- 
ing 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 con- 
fused 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 

55 



THE ART OF CROSS-EXAMINATION 

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 cer- 
tain. The attendance was large, the interest intense. 
Grayson's mother began to wonder why ' Abraham re- 
mained silent so long and why he didn't do something ! ' 

56 



CROSS-EXAMINATION OF PERJURED WITNESS 

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.' 

" Lincobi. ' 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 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 twisted 

57 



THE ART OF CROSS-EXAMINATION 

*' 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). 

*' Lijicobi. * 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 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 tnotive to clear himself could have in- 
duced 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 

58 



CROSS-EXAMINATION OF PERJURED WITNESS 

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 collat- 
eral 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 securi- 
ties 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 w^as 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." 

59 



THE ART OF CROSS-EXAMINATION 

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 depos- 
ited 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 collat- 
eral 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 skil- 
ful efforts of the cross-examiner will fail to lead the 
witness into such " traps " as these. If you have accorr>v 

60 



CROSS-EXAMINATION OF PERJURED WITNESS 

plished one such coup, be content with the point you 
have made ; do not tiy 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 man- 
kind. 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 tem- 
per 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 suUenness, 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 

6i 



THE ART OF CROSS-EXAMINATION 

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 under- 
stand how it was that, if it was all lies, it did not break 
down under such able counsel." ^ 

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 can- 
not see the object of this examination." This is a set- 

* " Hints on Advocacy," Harris. 
62 



CROSS-EXAMINATION OF PERJURED WITNESS 

back from which only the most experienced advocate can 
readily recover. Before the judge spoke, the jury, per- 
haps, 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 becom- 
ing 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 sever- 
est test. The ordinary juryman is so apt to be blinded 
by his political prejudices that where the guilt or inno- 
cence 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 Govern- 
ment 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 prison- 
ers were to be defended by various leading trial lawyers, 
and everything depended upon the result of the first few 

63 



THE ART OF CROSS-EXAMINATION 

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 wit- 
ness 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, o. 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 

64 



CROSS-EXAMINATION OF PERJURED WITNESS 

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 con- 
victing 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 1 " 

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 

65 



THE ART OF CROSS-EXAMINATION 

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. Ran- 
ney 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 judg- 
ment, and the trial lawyer having the case in charge, 
though fully aware of the dangers, was left no alterna- 
tive, and as so often happens where " fools rush in," 

66 



CROSS-EXAMINATION OF x^ERJURED WITNESS 

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, sur- 
rounded by her women friends, who acted upon this occa- 
sion as nurses, constantly bathing her hands and face 
with ill-smelling ointments, and administering restora- 
tives, 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 

67 



THE ART OF CROSS-EXAMINATION 

detail the sufferings of his patient since she had been 
under his care ; his efforts to reheve her pain ; the hope- 
less 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 dis- 
ease 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 be- 
lieved Dr. Ranney, and were anxious to render a verdict 
on his testimony. He must be cross-examined. Abso- 
lute failure could be no worse than silence, though it 
was evident that, along expected lines, questions relat- 
ing 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, 

68 



CROSS-EXAMINATION OF PERJURED WITNESS 

and Hartford R. R. thirty-five years, for the New York 
Central R. R. forty years, for the New York and Har- 
lem 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." 

Cou7isel. " Well, how is it that a man whose time is 
so much occupied as you have told us yours is, has 

69 



THE ART OF CROSS-EXAMINATION 

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 ques- 
tion ; 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. 

70 



CROSS-EXAMINATION OF PERJURED WITNESS 

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 answei). 

The court room was in deathly silence for fully three 
minutes. The witness wouldnt say anything, counsel 
for plaintiff didiit dare to say anything, and counsel for 
the city didiit 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 wit- 
ness 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. 

71 



CHAPTER V 

CROSS-EXAMINATION OF EXPERTS 

In these days when it is impossible to know every- 
thing, but becomes necessary for success in any avoca- 
tion 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. 

In our American courts, as they are now constituted, 
I think I am safe in saying that in half the cases pre- 
sented to a jury the evidence of one or more expert 
witnesses becomes a very important factor in a juror's 
effort to arrive at a just verdict. The proper handling 
of these witnesses, therefore, has become of greater 
importance at the present time than ever before. It is 
useless for our law writers to dismiss the subject of 
expert testimony, as is so often the case, by quoting 
some authority like Lord Campbell, who gives it as his 
final judgment, after the experience of a lifetime at the 

72 



CROSS-EXAMINATION OF EXPERTS 

bar and on the bench, that " skilled witnesses come with 
such a bias on their minds to support the cause in which 
they are embarked, that hardly any weight should be 
given to their evidence ; " or, as Taylor even more em- 
phatically puts it in the last edition of his treatise on 
the " Law of Evidence," " Expert witnesses become so 
warped in their judgment by regarding the subject 
in one point of view, that, even when conscientiously 
disposed, they are incapable of expressing a candid opin- 
ion." The fact still remains that the testimony of expert 
witnesses must be reckoned with in about sixty per cent 
of our more important litigated business, and the only 
possible way to enlighten our jurors and enable them 
to arrive at a just estimate of such testimony is by a 
thorough understanding of the art of cross-examination 
of such witnesses. 

Although the cross-examination of various experts, 
whether medical, handwriting, real estate, or other spe- 
cialists, is a subject of growing importance, yet it is not 
intended in this chapter to do more than to make some 
suggestions and to give a number of illustrations of cer-^ 
tain methods that have been successfully adopted 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 dif- 
ferent sides of the same question. 

73 



THE ART OF CROSS-EXAMINATION 

Attention is also called to the distinction between 
mere matters of scientific fact and mere matters of opin- 
ion. 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 penman- 
ship. In some rare instances (more especially with 
poorly educated physicians) this method of cross-ques- 
tioning is productive of results. More frequently, how- 
ever, 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 the 

74 



CROSS-EXAMINATION OF EXPERTS 

experiment ; 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 doc- 
tor's erroneous conclusions, not only to himself, but to a 
jury who will not readily comprehend the abstract theo- 
ries of physiology upon which even the medical profes- 
sion itself is divided. 

On the other hand, some careful and judicious ques- 
tions, 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 attended 

75 



THE ART OF CROSS-EXAMINATION 

Mrs. 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 symp- 
toms attending death when resulting from the use of either 
drug alone. 

At Buchanan's trial the district attorney found him- 
self in the extremely awkward position of trying to per- 
suade 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 hus- 
band, 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 Dis- 
trict Attorney, therefore, called the doctor to the witness- 
stand and questioned him concerning the symptoms he 
had observed during his treatment of Mrs. Buchanan just 

76 



CROSS-EXAMINATION OF EXPERTS 

prior 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 knowl- 
edge of medicine than of the art of cross-examination, was 
assigned the important duty of cross-examining this wit- 
ness. 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 erudi- 
tion 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 repro- 
duced 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 — ex- 
claimed, while flourishing the paper in the air : — 

" Now, doctor, you have told us what this lady's symp- 
toms 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 re- 
peated the question asked : " Has — anything — tran- 
spired — since — Mrs. Buchanan's — death — which — 
would — lead — me — to — change — my — opinion — as 

77 



THE ART OF CROSS-EXAMINATION 

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 cer- 
tificate. The judge replied : " The question is a broad 
one. Counsel asks you if you know of any reason why 
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 him- 
self in his chair, turned to the cross-examiner and said, 
" I wish to ask yotc a question. Has the report of the 
chemist telling of his discovery of atropine and mor- 
phine 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 pathologist yei been received in evidence ? " The 
court replied, " No." 

" Then',' said the doctor, rising in his chair, " I can 
answer your question truthfully, that as yet in the ab- 
sence of the pathological report and in the absence of 
the chemical report I know of no legal evidence which 

7^ 



CROSS-EXAMINATION OF EXPERTS 

would 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 doc- 
tor reread to them by the stenographer. The stenog- 
rapher, 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, 

79 



THE ART OF CROSS-EXAMINATION 

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 any- 
thing 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 step- 
ping 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 street was there, and the plaintiff 
had stepped 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 testi- 
fied 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 nothing 

80 



CROSS-EXAMINATION OF EXPERTS 

but 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 usu- 
ally do; but how to make the jury realize the fact was 
the question. The intimate personal acquaintance be- 
tween 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 im- 
mediately 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 usu- 
ally taken to the hospitals and cared for by experienced 
surgeons } " 



THE ART OF CROSS-EXAMINATION 

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 1 " 

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 t " 

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?" 

82 



CROSS-EXAMINATION OF EXPERTS 

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 in- 
quiry further, but as a last resort). " Will you swear that 
you ever had a case of ' Potts fracture ' within your own 
practice before this one 1 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 ques- 
tion, 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 ? " 

83 



THE ART OF CROSS-EXAMINATION 

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 {^ioo^xxv^ 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 a woman s leg.''" [It was a 
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 in- 
creasing embarrassment. 

Comisel (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 the right leg." 

Counsel (astonished). " What do you say, doctor .? " 

84 



CROSS-EXAMINATION OF EXPERTS 

Doctor (much confused). " Pardon me, it is the left 

leg." 

Counsel. " Were you not right the first time, doctor. 
Is it not in fact the right leg ? " 

Doctor. " I don't think so ; no, it is the left leg." 

Counsel (again stooping and bringing from under the 
table the bones of the foot attached together, and hand- 
ing 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 the foot into the knee joint? Is that 
the way it is in life 1 " 

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 diffi- 
cult 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, 

85 



THE ART OF CROSS-EXAMINATION 

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. 

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 illus- 
tration 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 sud- 
den 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 Brooks, 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 con- 
junction with an admittedly genuine specimen of the 



CROSS-EXAMINATION OF EXPERTS 

lady's handwriting, and gave it as his opinion that they 
were all written by the same hand. Mr. Brooks 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 Attor7iey. " 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 you 
were Qriven a number of her letters with which to make 
a comparison ? " 

Witness. " Oh, yes, the more samples I had of genu- 
ine handwriting, the more valuable my conclusion would 
become." 

District Attor7tey (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 t " 

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.'*" 

^7 



THE ART OF CROSS-EXAMINATION 

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 wit- 
ness). " Won't you kindly take this letter, also, and com- 
pare it with the others you have ? " 

Witness (examining the letter). "Yes, sir, that is a 
variety of the same penmanship." 

District Attorjiey. " 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 wit- 
ness). " Be good enough to take just one more sample 
— I don'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 swear- 
ing to a fact, only an opinion." 

District Attorney (good-naturedly). " Of course I 
understand ; but is it your honest opinion as an ex- 
pert, that these three letters are all in the same hand- 
writing? " 

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 t " 

88 



CROSS-EXAMINATION OF EXPERTS 

Witness (unfolding the letter and reading trium- 
phantly). " Lila Naomer 

District Attorney. " Please unfold the second letter 
and read the signature." 

Wit7tess (reading). " William Henriques^ 

District Attorney. " Now the third, please." 

Witness (hesitating and reading with much embarrass- 
ment). " Frank Ellison I " ^ 

The alleged compromising letters were never read to 
the jury. 

It will not be uninteresting, by way of contrast, I 
think, to record here another instance where the cross- 
examination of an expert in handwriting did more to 
convict a prisoner, probably, than any other one piece of 
evidence during the entire trial. 

The examination referred to occurred in the famous 
trial of Munroe Edwards, who was indicted for forg- 
ing two drafts upon Messrs. Brown Brothers & Com- 
pany, who had offered a reward of ^20,000 for his 
arrest. 

Munroe had engaged Mr. Robert Emmet to defend 
him, and had associated with Emmet as his counsel 
Mr. William M. Evarts and several famous lawyers from 
without the state. At that time the district attorney 
was Mr. James R. Whiting, who had four prominent 

1 As a matter of fact, father and daughter wrote very much alike, and with 
surprising similarity to Mr. Ellison. It was this circumstance that led to the 
use of the three letters in the cross-examination. 

89 



THE ART OF CROSS-EXAMINATION 

lawyers, including Mr. Ogden Hoffman, associated with 
him upon the side of the government. 

Recorder Vaux, of Philadelphia, was called to the 
witness-stand as an expert in handwriting, and in his 
direct testimony had very clearly identified the prisoner 
with the commission of the particular forgery for which 
he was on trial. He was then turned over to Mr. Emmet 
for cross-examination. 

Mr. Emmet (taking a letter from among his papers 
and handing it to the witness, after turning down the 
signature). " Would you be good enough to tell me, 
Mr. Vaux, who was the author of the letter which I now 
hand you ? " 

Mr. Vaux (answering promptly). " This letter is in 
the handwriting of Munroe Edwards." 

Mr. Emmet. " Do you feel certain of that, Mr. Vaux.? " 

Mr. Vaux. "I do." 

Mr. Emmet. " As certain as you are in relation to 
the handwriting of the letters which you have previously 
identified as having been written by the prisoner.?" 

Mr. Vaux. " Exactly the same." 

Mr. Emmet. " You have no hesitation then in swear- 
ing positively that the letter you hold in your hand, in 
your opinion, was written by Munroe Edwards .? " 
• Mr. Vaux. " Not the slightest." 

Mr. Emmet (with a sneer). " That will do, sir." 

District Attorney (rising quickly). " Let me see the 
letter." 

90 



CROSS-EXAMINATION OF EXPERTS 

Mr. Emmet (contemptuously). " That is your privi- 
lege, sir, but I doubt if it will be to your profit. The 
letter is directed to myself, and is written by the cashier 
of the Orleans bank, informing me of a sum of money 
deposited in that institution to the credit of the prisoner. 
Mr. Vaux's evidence in relation to it will test the value 
of his testimony in relation to other equally important 
points." 

Mr. Vaux here left the witness chair and walked to 
the table of the prosecution, reexamined the letter care- 
fully, then reached to a tin box which was in the keeping 
of the prosecution and which contained New Orleans 
post-office stamps. He then resumed his seat in the 
witness chair. 

Mr. Vaux (smiling). " I may be willing, Mr. Emmet, 
to submit my testimony to your test." 

Mr. Emmet made no reply, but the prosecuting 
attorney continued the examination as follows : — 

District Attorriey. " You have just testified, Mr. Vaux, 
that you believe the letter which you now hold in your 
hand was written by the same hand that wrote the 
Caldwell forgeries, and that such hand was Munroe 
Edwards's. Do you still retain that opinion t " 

Mr. Vaux. " I do." 

District Attor7iey. " Upon what grounds ? " 

Mr. Vaux. " Because it is a fellow of the same char- 
acter as well in appearance as in device. It is a forgery, 
probably only intended to impose upon his counsel, but 

91 



THE ART OF CROSS-EXAMINATION 

now by its unadvised introduction in evidence, made to 
impose upon himself and brand him as a forger." 

The true New Orleans stamps were here shown to 
be at variance with the counterfeit postmark upon the 
forged letter, and the character of the writing was also 
proved by comparison with many letters which were in 
the forger's undoubted hand. 

It turned out subsequently that the prisoner had 
informed his counsel, Mr. Emmet, that he was possessed 
of large amounts of property in Texas, some of which he 
had ordered to be sold to meet the contingent cost of 
his defence. He had drawn up a letter purporting to 
come from a cashier in a bank at New Orleans, directed 
to Mr. Emmet, informing him of the deposit on that 
day of ^1500 to the credit of his client, which notifica- 
tion he, the cashier, thought proper to send to the 
counsel, as he had observed in the newspapers that Mr. 
Edwards was confined to the jail. Mr. Emmet was so 
entirely deceived by this letter that he had taken it to 
his client in prison, and had shown it to him as a sign 
of pleasant tidings.^ 

The manufacture or exaggeration of injuries, in dam- 
age cases against surface railroads and other corpora- 
tions, had at one time, not many years ago, become 
almost a trade among a certain class of lawyers in the 
city of New York. 

There are several medical books which detail the 

^ " Pleasantries about Courts and Lawyers," Edwards. 
92 



CROSS-EXAMINATION OF EXPERTS 

symptoms that may be expected to be exhibited in almost 
any form of railroad accidents. Any lawyer who is 
familiar with the pages of these books can readily detect 
indications of an equal familiarity with them on the part 
of the lawyer who is examining his client — the plaintiff 
in an accident case — as to the symptoms of his malady 
as set forth in these medical treatises, which have prob- 
ably been put into his hands in order that he may 
become thoroughly posted upon the symptoms which 
he would be expected to manifest. 

It becomes interesting to watch the history of some of 
these cases after the substantial amount of the verdict 
awarded by a jury has been paid over to the suffering 
plaintiff. Only last winter a couple of medical gentlemen 
were called as witnesses in a case where a Mrs. Bogardus 
was suing the Metropolitan Street Railway Company for 
injuries she claimed to have sustained while a passenger 
on one of the defendant's cars. These expert physicians 
swore that Mrs. Bogardus had a lesion of the spine and 
was suffering from paralysis as a result of the accident. 
According to the testimony of the doctors, her malady 
was incurable and permanent. The records of the legal 
department of this railway company showed that these 
same medical gentlemen had, on a prior occasion in the 
case of a Mr. Hoyt against the railroad, testified to the 
same state of affairs in regard to Mr. Hoyt's physical 
condition. He, too, was alleged to be suffering from an 
incurable lesion of the spine and would be paralyzed and 

93 



THE ART OF CROSS-EXAMINATION 

helpless for the balance of his life. The records of the 
company also showed that Hoyt had recovered his health 
promptly upon being paid the amount of his verdict. At 
the time of the Bogardus trial Hoyt had been employed 
by H. B. Claflin & Co. for three years. He was working 
from seven in the morning until six in the evening, lift- 
ing heavy boxes and loading trucks. 

The moment the physicians had finished their testi- 
mony in the Bogardus case, this man Hoyt was sub- 
poenaed by the railroad company. On cross-examina- 
tion these physicians both recollected the Hoyt case and 
their attention was called to the stenographic minutes of 
the questions and answers they had given under oath in 
that case. They were then asked if Hoyt was still alive 
and where he could be found. They both replied that 
he must be dead by this time, that his case was a hope- 
less one, and if not dead, he would probably be found as 
an inmate of one of our public insane asylums. 

At this stage of the proceedings Hoyt arrived in the 
court room. He was requested to step forward in front 
of the jury. The doctors were asked to identify him, 
which they both did. Hoyt then took the witness-stand 
himself and admitted that he had never had a sick mo- 
ment since the day the jury rendered a verdict in his 
favor ; that he had gained thirty-five pounds in weight, 
and that he was then doing work which was harder than 
any he had ever done before in his life ; that he worked 
from early morning till late at night ; had never been in 

94 



CROSS-EXAMINATION OF EXPERTS 

aa insane asylum or under the care of any doctor since 
his trial ; and ended up by making the astounding state- 
ment that out of the verdict rendered him by the jury 
and paid by the railroad company, he had been obliged 
to forfeit upwards of ^1500 to the doctors who had 
treated him and testified in his behalf 

This was a little too much enlightenment for the jury 
in Mrs. Bogardus's case, and this time they rendered their 
verdict promptly in favor of the railroad company. 

I cannot forbear relating in this connection another 
most striking instance of the unreliability of expert testi- 
mony in personal injury cases. This is especially the 
case with certain New York physicians who openly con- 
fess it to be a part of their professional business to give 
expert medical testimony in court. Some of these men 
have taken a course at a law school in connection with 
their medical studies for the very purpose of fitting 
themselves for the witness-stand as medical experts. 

One of these gentlemen gave testimony in a case 
which was tried only last November, which should 
forever brand him as a dangerous witness in any 
subsequent litigation in which he may appear. I have 
reference to the trial of Ellen McQuade against the Met- 
ropolitan Street Railway Company. This was a suit 
brought on behalf of the next of kin, to recover damages 
for the death of John McQuade who had fallen from a 
surface railway car and had broken his wrist so that the 
bone penetrated the skin. This wound was slow in 

95 



THE ART OF CROSS-EXAMINATION 

healing and did not close entirely until some three 
months later. About six months after his accident Mc- 
Quade was suddenly taken ill and died. An autops) 
disclosed the fact that death resulted from inflammation 
of the brain, and the effort of the expert testimony in the 
case was to connect this abscess of the brain with the 
accident to the wrist, which had occurred six months 
previously. 

This expert doctor had, of course, never seen McQuade 
in his lifetime, and knew nothing about the case except 
what was contained in the hypothetical question which 
he was called upon to answer. He gave it as his opinion 
that the broken wrist was the direct cause of the abscess 
in the brain, which in turn was due to a pus germ that 
had travelled from the wound in the arm by means of 
the lymphatics up to the brain, where it had found lodg- 
ment and developed into an abscess of the brain, causing 
death. 

The contention of the railway company was that the 
diseased condition of the brain was due to " middle- 
ear disease," which itself was the result of a cold or 
exposure, and in nowise connected with the accident ; 
and that the presence of the large amount of fluid which 
was found in the brain after death could be accounted 
for only by this disease. 

During the cross-examination of this medical expert, a 
young woman, wearing a veil, had come into court and 
was requested to step forward and lift her veil. The doc 

96 



CROSS-EXAMINATION OF EXPERTS 

tor was then asked to identify her as a Miss Zimmer, 
for whom he had testified some years previously in her 
damage suit against the same railway company. 

At her own trial Miss Zimmer had been carried into 
the court room resting in a reclining chair, apparently 
unable to move her lower limbs, and this doctor had 
testified that she was suffering from chronic myelitis, 
an affection of the spine, which caused her to be para- 
lyzed, and that she would never be able to move her 
lower limbs. His oracular words to the jury were, " Just 
as she is now, gentlemen, so she will always be." The 
witness's attention was called to these statements, and he 
was confronted with Miss Zimmer, now apparently in the 
full vigor of her health, and who had for many years 
been acting as a trained nurse. She afterward took the 
witness-stand and admitted that the jury had found 
a verdict for her in the sum of $15,000, but that her 
paralysis had so much improved after the administration 
of this panacea by the railway company that she was able, 
after a few months, to get about with the aid of crutches, 
and shortly thereafter regained the normal use of her 
limbs, and had ever since earned her livelihood as an 
obstetrical nurse. 

The sensation caused by the appearance of the 
Zimmer woman had hardly subsided when the wit- 
ness's attention was drawn to another case, Kelly against 
the railway company, in which this doctor had also 
assisted the plaintiff. Kelly was really paralyzed, but 

G 97 



THE ART OF CROSS-EXAMINATION 

claimed that his paralysis was due to a recent railroad 
accident. It appeared during the trial, however, that 
long before the alleged railroad accident, Kelly had lost 
the use of his limbs, and that his case had become so 
notorious as to be a subject for public lectures by many 
reputable city physicians. The doctor was obliged to 
admit being a witness in that case also, but disclaimed 
any intentional assistance in the fraud. 

One of the greatest vices of expert medical testimony 
is the hypothetical question and answer which has come 
to play so important a part in our trials nowadays. It 
is, perhaps, the most abominable form of evidence that 
was ever allowed to choke the mind of a juror or throttle 
his intelligence. 

An hypothetical question is supposed to be an accu- 
rate synopsis of the testimony that has already been 
sworn to by the various witnesses who have preceded 
the appearance of the medical expert in the case. The 
doctor is then asked to assume the truth of every fact 
which counsel has included in his question, and to give 
the jury his opinion and conclusions as an expert from 
these supposed facts. 

It frequently happens that the physician has never even 
seen, much less examined, the patient concerning whose 
condition he is giving sworn testimony. Nine times 
out of ten the jury take the answer of the witness as 
direct evidence of the existence of the fact itself. It is 
the duty of the cross-examiner to enlighten the jury 

98 



CROSS-EXAMINATION OF EXPERTS 

in regard to such questions and make them realize that 
it is not usually the truth of the answer, but the truth 
and accuracy of the questio7i which requires their con- 
sideration. These hypothetical questions are usually 
loosely and inaccurately framed and present a very 
different aspect of the case from that which the testi- 
mony of the witnesses would justify. If, however, the 
question is substantially correct, it is allowed to be put 
to the witness; the damaging answer follows, and the 
jury conclude that the plaintiff is certainly suffering 
from the dreadful or incurable malady the doctor has 
apparently sworn to. 

A clever cross-examiner is frequently able to shatter 
the injurious effect of such hypothetical questions. One 
useful method is to rise and demand of the physician 
that he repeat, in substance, the question that had just 
been put to him and upon which he bases his answer. 
The stumbling effort of the witness to recall the various 
stages of the question (such questions are usually very 
long) opens the eyes of the jury at once to the dangers 
of such testimony. It is not always safe, however, to 
make this inquiry. It all depends upon the character 
of witness you are examining. Some doctors, before 
being sworn as witnesses, study carefully the typewrit- 
ten hypothetical questions which they are to answer. 
A single inquiry will easily develop this phase of the 
matter, and if the witness answers that he has previously 
read the question, it is often usual to ask him which 

99 



THE ART OF CROSS-EXAMINATION 

particular part of it he lays the most stress upon, and 
which parts he could throw out altogether. Thus one 
may gradually narrow him down to some particular 
factor in the hypothetical question, the truth of which 
the previous testimony in the case might have left in 
considerable doubt. 

It will often turn out that a single sentence or twist 
in the question serves as a foundation for the entire 
answer of the witness. This is especially the case with 
conscientious physicians, who often suggest to counsel 
the addition of a few words which will enable them to 
answer the entire question as desired. The development 
of this fact alone will do much to destroy the witness 
with the jury. I discovered once, upon cross-examining 
one of our most eminent physicians, that he had 
added the words, " Can you say with positiveness,'' to a 
lawyer's hypothetical question, and then had taken the 
stand and answered the question in the negative, 
although had he been asked for his honest opinion on 
the subject, he would have been obliged to have given a 
different answer. 

Hypothetical questions put In behalf of a plaintiff 
would not of course include facts which might develop 
later for the defence. When cross-examining to such 
questions, therefore, it Is often useful to inquire in what 
respect the witness would modify his answer If he were 
to assume the truth of these new factors In the case. 
" Supposing that In addition to the matters you have 

100 



CROSS-EXAMINATION OF EXPERTS 

already considered, there were to be added the facts that 
I will now give you," etc., " what would your opinion be 
then ? " etc. 

Frequently hypothetical questions are so framed that 
they answer themselves by begging the question. In the 
Guiteau case all the medical experts were asked in effect, 
though not in form, to assume that a man having an 
hereditary taint of insanity, exhibits his insanity in his 
youth, exhibits it in his manhood, and at a subsequent 
date, being under the insane delusion that he was 
authorized and commanded by God to kill the President 
of the United States, proceeded without cause to kill 
him ; and upon these assumptions the experts were asked 
to give their opinion whether such a man was sane or 
insane. 

To pick out the flaws in most hypothetical questions ; 
to single out the particular sentence, adjective, or adverb 
upon which the physician is centring his attention as 
he takes his oath, requires no little experience and 
astuteness. 

The professional witness is always partisan, ready and 
even eager to serve the party calling him. This fact 
should be ever present in the mind of the cross-examiner. 
Encourage the witness to betray his partisanship ; encour- 
age him to volunteer statements and opinions, and to give 
irresponsive answers. Jurors always look with suspicion 
upon such testimony. Assume that an expert witness 
called against you has come prepared to do you all the 

lOI 



THE ART OF CROSS-EXAMINATION 

harm he can, and will avail himself of every opportunity 
to do so which you may inadvertently give him. Such 
witnesses are usually shrewd and cunning men, and come 
into court prepared on the subject concerning which they 
are to testify. 

Some experts, however, are mere shams and pretenders. 
I remember witnessing some years ago the utter collapse 
of one of these expert pretenders of the medical type. It 
was in a damage suit against the city. The plaintiff's 
doctor was a loquacious gentleman of considerable per- 
sonal presence. He testified to a serious head injury, and 
proceeded to " lecture " the jury on the subject in a sensa- 
tional and oracular manner which evidently made a great 
impression upon the jury. Even the judge seemed to 
give more than the usual attention. The doctor talked 
glibly about " vasomotor nerves " and " reflexes " and 
expressed himself almost entirely in medical terms which 
the jury did not understand. He polished off his testi- 
mony with the prediction that the plaintiff could never 
recover, and if he lived at all, it would necessarily be 
within the precincts of an insane asylum. Counsel 
representing the city saw at a glance that this was no 
ordinary type of witness. Any cross-examination on the 
medical side of the case would be sure to fail; for the 
witness, though evidently dishonest, was yet ingenious 
enough to cover his tracks by the cuttle-fish expedient 
of befogging his answers in a cloud of medical terms. 
Dr. Allan McLane Hamilton, who was present as 

102 



CROSS-EXAiMINATION OF EXPERTS 

medical adviser in behalf of the city, suggested the 
following expedient : — 

Counsel. " Doctor, I infer from the number of books 
that you have brought here to substantiate your position, 
and from your manner of testifying, that you are very 
familiar with the literature of your profession, and espe- 
cially that part relating to head injury." 

Doctor. " I pride myself that I am — I have not only 
a large private library, but have spent many months in 
the libraries of Vienna, Berlin, Paris, and London." 

Counsel. " Then perhaps you are acquainted with 
Andrews's celebrated work ' On the Recent and Remote 
Effects of Head Injury ' ? " 

Doctor (smiling superciliously). " Well, I should say 
I was. I had occasion to consult it only last week." 

Counsel. " Have you ever come across ' Charvais on 
Cerebral Trauma ' } " 

Doctor. " Yes, I have read Dr. Charvais 's book from 
cover to cover many times." 

Counsel continued in much the same strain, putting 
to the witness similar questions relating to many other 
fictitious medical works, all of which the doctor had 
either " studied carefully " or " had in his library about to 
read," until finally, suspecting that the doctor was be- 
coming conscious of the trap into which he was being 
led, the counsel suddenly changed his tactics and de- 
manded in a loud sneering tone if the doctor had ever 
read Page on " Injuries of the Spine and Spinal Cord" 

103 



THE ART OF CROSS-EXAMINATION 

(a genuine and most learned treatise on the subject). To 
this inquiry the doctor laughingly replied, " I never 
heard of any such book and I guess you never did 
either ! " 

The climax had been reached. Dr. Hamilton was im- 
mediately sworn for the defence and explained to the 
jury his participation in preparing the list of bogus 
medical works with which the learned expert for the 
plaintiff had shown such familiarity ! 

On the other hand, when the cross-examiner has totally 
failed to shake the testimony of an able and honest ex- 
pert, he should be very wary of attempting to discredit 
him by any slurring allusions to his professional ability, 
as is well illustrated by the following example of the 
danger of giving the expert a good chance for a retort. 

Dr. Joseph Collins, a well-known nerve specialist, was 
giving testimony last winter on the side of the Metro- 
politan Street Railway in a case where the plaintiff 
claimed to be suffering from a misplaced kidney which 
the railroad doctor's examination failed to disclose. 
Having made nothing out of the cross-examination of 
Dr. Collins, the plaintiff's lawyer threw this parting 
boomerang at the witness : — 

Counsel. " After all, doctor, isn't it a fact that nobody 
in your profession regards you as a surgeon ? " 

Doctor. " I never regarded myself as one." 

Cou7isel. " You are a neurologist, aren't you, doctor? " 

Doctor. " I am, sir." 

104 



CROSS-EXAMINATION OF EXPERTS 

Counsel. " A neurologist, pure and simple ? " 

Doctor. " Well, I am moderately pure and altogether 
simple." 

Aside from the suggestions already made as to the best 
methods of cross-examining experts, no safe general rules 
can be laid down for the successful cross-examination of 
expert alienists, but a most happy illustration of one ex- 
cellent method which may be adopted with a certain type 
of alienist was afforded by the cross-examination in the 
following proceedings : — 

In the summer of 1898 habeas corpus proceedings were 
instituted in New York to obtain the custody of a child. 
The question of the father's sanity or insanity at the 
time he executed a certain deed of guardianship was the 
issue in the trial. 

A well-known alienist, who for the past ten years has 
appeared in the New York courts upon one side or the 
other in pretty nearly every important case involving the 
question of insanity, was retained by the petitioner to sit 
in court durins^ the trial and observe the actions, de- 
meanor, and testimony of the father, the alleged lunatic, 
while he was giving his evidence upon the witness-stand. 

At the close of the father's testimony this expert wit- 
ness was himself called upon to testify as to the result of 
his observation, and was interrogated as follows : — 

Cozmsel. " Were you present in court yesterday when 
the defendant in the present case was examined as a 
witness } " 

105 



THE ART OF CROSS-EXAMINATION 

Witness. " I was." 

Counsel. " Did you see him about the court room 
before he took the witness-stand ? " 

Witness. " I observed him in this court room and on 
the witness-stand on Monday." 

Counsel. " You were sittins^ at the table here during: 
the entire session .? " 

Witness. " I was sitting at the table during his exami- 
nation." 

Counsel. " You heard all his testimony } " 

Witness. " I did." 

Counsel. " Did you observe his manner and behavior 
while giving his testimony ? " 

Witness. " I did." 

Counsel. " Closely } " 

Witness. " Very closely." 

Upon being shown certain specimens of the hand- 
writing of the defendant, the examination proceeded as 
follows : — 

Counsel. " Now, Doctor, assuming that the addresses 
on these envelopes were written by the defendant some 
three or more years ago, and that the other addresses 
shown you and the signatures attached thereto were 
written by him within this last year, and taking into con- 
sideration at the same time the defendant's manner upon 
the witness-stand, as you observed it, and his entire 
deportment while under examination, did you form an 
opinion as to his present mental condition '^. " 

1 06 



CROSS-EXAMINATION OF EXPERTS 

Witness. " I formed an estimate of his mental condi- 
tion from my observation of him in the court room and 
while he was giving his testimony and from an examina- 
tion of these specimens of handwriting taken in connec- 
tion with my observation of the man himself." 

Counsel. " What in your opinion was his mental con- 
dition at the time he gave his testimony ? " 

T/ie Court. " I think, Doctor, that before you answer 
that question, it would be well for you to tell us what you 
observed upon which you based your opinion." 

Witness. "It appeared to me that upon the witness- 
stand the defendant exhibited a slowness and hesitancy 
in giving answers to perfectly distinct and easily compre- 
hensible questions, which was not consistent with a sound 
mental condition of a person of his education and station 
in life. I noted a forgetfulness, particularly of recent 
events. I noted also an expression of face which was 
peculiarly characteristic of a certain form of mental 
disease ; an expression of, I won't say hilarity, but a 
fatuous, transitory smile, and exhibited upon occasions 
which did not call in my opinion for any such facial 
expression, and which to alienists possesses a peculiar 
significance. As regards these specimens of handwrit- 
ing which I have been shown, particularly the signature 
to the deed, it appears to me to be tremulous and to show 
a want of coordinating power over the muscles which 
were used in making that signature." 

In answer to a hypothetical question describing the 

107 



THE ART OF CROSS-EXAMINATION 

history of the defendant's life as claimed by the peti- 
tioner, the witness replied : — 

Witness. " My opinion is that the person described 
in the hypothetical question is suffering from a form of 
insanity known as paresis, in the stage of dementia." 

Upon the adjournment of the day's session of the 
court, the witness was requested to take the deed (the 
signature to which was the writing which he had de- 
scribed as " tremulous " and on which he had based his 
opinion of dementia) and to read it carefully over night. 
The following morning this witness resumed the stand 
and gave it as his opinion that the defendant was in 
such condition of mind that he could not comprehend 
the full purpose and effect of that paper. 

The doctor was here turned over to defendant's coun- 
sel for cross-examination. Counsel jumped to his feet and, 
taking the witness off his guard, rather gruffly shouted: — 

Counsel. " In your opinion, what were you employed 
to come here for ? " 

Witness (after hesitating a considerable time). " I 
was employed to come here to listen to the testimony 
of this defendant, the father of this child whose guard- 
ianship is under dispute." 

Counsel. " Was that a simple question that I put to 
you ? Did you consider it simple ? " 

Witness. " A perfectly simple question." 

Counsel (smiling). " Why were you so slow about 
answering it then 1 " 

io8 



CROSS-EXAMINATION OF EXPERTS 

Wiiness. "I always answer deliberately; it is my habit." 

Counsel. " Would that be an evidence of derangement 
in your mental faculties, Doctor — the slowness with 
which you answer ? " 

Witness. " I am making an effort to answer your 
questions correctly." 

Counsel. " But perhaps the defendant was making an 
effort to answer questions correctly the other day ? " 

Witness. " He was undoubtedly endeavoring to do so." 

Counsel " You came here for the avowed purpose 
of watching the defendant, didn't you ? " 

Witness. " I came here for the purpose of giving an 
opinion upon his mental condition." 

Counsel " Did you intend to listen to his testimony 
before forming any opinion ? " 

Witness. " I did." 

Counsel (now smiling). " One of the things that you 
stated as indicating the disease of paresis was the defend- 
ant's slowness in answering simple questions, wasn't it ? " 

Witness. "It was." 

Counsel. " Now, in forming your opinion, you based 
it in part on his handwriting, did you not ? " 
Witness. " I did, as I testified yesterday." 
Counsel. " And for that purpose you selected one sig- 
nature to a particular instrument and threw out of con- 
sideration certain envelopes which were handed to you ; 
is that right } " 

109 



THE ART OF CROSS-EXAMINATION 

Witness. " I examined a number of signatures, but 
there was only one which showed the characteristic 
tremor of paresis, and that was the signature to the 
instrument." 

The witness was here shown various letters and writ- 
ings of the defendant executed at a later date than the 
deed of guardianship. 

Counsel. " Now, Doctor, what have you to say to 
these later writings } " 

Wit)iess. " They are specimens of good handwriting. 
If you wish to draw it out, they do not indicate any 
disease — paresis or any other disease." 

Counsel. " Do you think there has been an improve- 
ment in the defendant's condition meanwhile } " 

Witness. " I don't know. There is certainly a great 
improvement in his handwriting." 

Counsel " It would appear, then, Doctor, that you 
selected from a large mass of papers and letters only 
one which showed nervous trouble, and do you pre- 
tend to say that you consider that as fair } " 

Witness. " I do, because I looked for the one that 
show^ed the most nervous trouble, although it is true 
I found only one." 

Counsel. " How many specimens of handwriting were 
submitted to you from which you made this selection } " 

Witness. " Some fifteen or twenty." 

Counsel " Doctor, you are getting a little slow in 
your answers again." 

no 



CROSS-EXAMINATION OF EXPERTS 

Witness. " I have a right ; my answers go on the 
record. I have a right to make them as exact and 
careful as I please." 

Counsel (sternly). " The defendant was testifying for 
his liberty and the custody of his child ; he had a right 
to be a little careful ; don't you think he had } " 

Witness. " Undoubtedly." 

Counsel. " You also expressed the opinion that the 
defendant could not understand or comprehend the 
meaning of the deed of guardianship that has been put 
in your hands for examination over night } " 

Wilness. " That is my opinion." 

Counsel. " What do you understand to be the effect 
of this paper '^. " 

Witness. " The effect of that paper is to appoint, for 
a formal legal consideration, Mrs. Blank as the guardian 
of defendant's daughter and to empower her and to 
give her all of the rights and privileges which such 
guardianship involves, and Mrs. Blank agrees on her 
part to defend all suits for wrongful detention as if it 
were done by the defendant himself, and the defendant 
empowers her to act for him as if it were by himself 
in that capacity. That is my recollection." 

Counsel. " What that paper really accomplishes is to 
transfer the management and care and guardianship of 
the child to Mrs. Blank, isn't it?" 

Witness. " I don't know. I am speaking only as to 
what bears on his mental condition." 

Ill 



THE ART OF CROSS-EXAMINATION 

Counsel. " Do you know whether that is what the 
paper accomplishes ? " 

Witness, " I have given you my recollection as well 
as I can. I read the paper over once." 

Counsel. " I am asking you what meaning it conveyed 
to your mind, because I am going to give the defendant 
the distinguished honor of contrasting his mind with 
yours." 

Witness. " I should be very glad to be found inferior 
to his; I wish he were different." 

Counsel " When the defendant testified about that 
paper, he was asked the same question that you were 
asked, and he said, ' I know it was simply a paper 
supposed to give Mrs. Blank the management and care 
of my child.' Don't you think that was a pretty good 
recollection of the contents of the paper for a man 
in the state of dementia that you have described.?" 

Witness. " Very good." 

Counsel " Rather remarkable, wasn't it ? " 

Witness. " It was a correct interpretation of the 
paper." 

Cotmsel " If he could give that statement on the 
witness-stand in answer to hostile counsel, do you mean 
to say that he couldn't comprehend the meaning of the 
paper ? " 

Witness. " He was very uncertain, hesitating, if I 
recollect it, about that statement. He got it correct, 
that's true." 

112 



CROSS-EXAMINATION OF EXPERTS 

Counsel. "Then it was the manner of his statement 
and not the substance that you are deaHng with ; is that 
it?" 

Wihiess. " He stated that his recollection was not 
good and he didn't quite recollect what it was, but 
subsequently he made that statement." 

Counsel. " Don't you think it was remarkable for him 
to have been able to recollect from the seventh day of 
June the one great fact concerning this paper, to wit : 
that he had given the care and maintenance of his 
daughter to Mrs. Blank ? " 

Wilness. " He did recollect it." 

Counsel " It is a pretty good recollection for a 
dement, isn't it ? " 

Witness. " He recollected it." 

Counsel " Is that a good recollection for a dement } " 

Witness. " It is." 

Comtsel " Isn't it a good recollection for a man who 
is not a dement ? " 

Witness. " He recollected it perfectly." 

Counsel " Don't you understand, Doctor, that the 
man who can describe a paper in one sentence is con- 
sidered to have a better mind than he who takes half a 
dozen sentences to describe it .? " 

Witness. " A great deal better mind." 

Counsel " Then the defendant rather out-distanced 

you in describing that paper } " 

Witness. " He was very succinct and accurate." 
H 113 



THE ART OF CROSS-EXAMINATION 



Counsel. " And that is in favor of his mind as against 
yours ? " 

Witness. "As far as that goes." 

Counsel. " Now we will take up the next subject, and 
see if I cannot bring the defendant's mind up to your 
level in that particular. The next thing you noticed, 
you say, was the slowness and hesitancy with which he 
gave his answers to perfectly distinct and easily com- 
prehended questions ? " 

Wihiess. " That is correct." 

Counsel. " But you have shown the same slowness 
and hesitancy to-day, haven't you ? " 

Witness. " I have shown no hesitancy ; I have been 
deliberate." 

Counsel " What is your idea of the difference be- 
tween hesitancy and deliberation. Doctor } " 

Witness. " Hesitancy is what I am suffering from 
now ; I hesitate in finding an answer to that question." 

Counsel. " You admit there is hesitation ; isn't that 
so.?" 

Witness. " And slowness is slowness." 

Counsel. " Then we have got them both from you 
now. You are both slow and you hesitate, on your own 
statement ; is that so. Doctor ? " 

Witness. " Yes." 

Counsel. " So the defendant and you are quits again 
on that ; is that right .? " 

Witness. " I admit no slowness and hesitancy. I am 

114 



CROSS-EXAMINATION OF EXPERTS 

giving answers to your questions as carefully and accu- 
rately and frankly and promptly as I can." 

Counsel. " Wasn't the defendant doing that? " 

Witness. " I presume he was." 

Counsel. " What was the next thing that you 
observed besides his slowness and hesitancy, do you 
remember ? " 

Witness. " You will have to refresh my memory." 

Counsel (quoting). " ' I noted a forgetfulness, par- 
ticularly of recent events.' You think the defendant 
is even with you now, on forgetfulness, don't you ? " 

Witness. " It looks that way." 

Counsel. " You say further, ' I noted an expression 
of face which was peculiarly characteristic of a cer- 
tain form of mental disease; I noticed particularly an 
expression of, I won't say hilarity, but a fatuous, transi- 
tory smile, on occasions which did not call, in my 
opinion, for any such facial expression.' Would you 
think it was extraordinary that there should be a 
supercilious smile on the face of a sane man under some 
circumstances } " 

Witness. " I should think it would be very extraor- 
dinary." 

Counsel. " Doctor, he might have had in mind the 
fact of the little talk you and I were to have this after- 
noon. That might have brought a smile to his face; 
don't you think so ? " 

Witness, " I do not." 

115 



THE ART OF CROSS-EXAMINATION 

Counsel. " If as he sat there he had any idea of what 
I would ask you and what your testimony would be, 
don't you think he was justified in having an ironical 
expression upon his face ? " 

Witness. " Perhaps." 

Counsel. " It comes to this, then, you selected only 
07ie specimen of tremulous handwriting ? " 

Witness. "I said so." 

Counsel. " You yourself have shown slowness in an- 
swering my questions } " 

Witness. " Sometimes." 

Counsel. " And forgetfulness } " 

Witness. " You said so." 

Cou7isel. " And you admit that any sane man listen- 
ing to you would be justified in having an ironical smile 
on his face ? " 

Witness. (No answer.) 

Counsel. " You also admitted that the man you claim 
to be insane, gave from memory a better idea of the con- 
tents of this legal paper than you did, although you had 
examined and studied it over night } " 

Witness. " Perhaps." 

Counsel (condescendingly). " You didn't exactly mean 
then that the defendant was actually deprived of his 
mind ? " 

Witness. " No, he is not deprived of his mind, and I 
never intended to convey any such idea." 

Cotmsel. " Then, after all, your answers mean only that 

ii6 



CROSS-EXAMINATION OF EXPERTS 

the defendant has not got as much mind as some other 
people ; is that it ? " 

Wibiess. " Well, my answers mean that he has pare- 
sis with mental deterioration, and, if you wish me to say 
so, not as much mind as some other people; there are 
some people who have more and some who have less." 

Counsel. " He has enough mind to escape an expres- 
sion which would indicate the entire deprivation of the 
mental faculties ? " 

Witness. "Yes." 

Counsel. " He has enough mind to write the letters of 
which you have spoken in the highest terms .? " 

Witness. " I have said they were good letters." 

Counsel. " He has enough mind to accurately and 
logically describe this instrument, the deed of guardian- 
ship, which he executed ? " 

Witness. " As I have described." 

Cotmsel. "He probably knows more about his domestic 
affairs than you do. That is a fair presumption, isn't it.^*" 

Witness. " I know nothing about them." 

Counsel. " For all that you know he may have had ex- 
cellent reasons for taking the very course he has taken 
in this case } " 

Witness, "That is not impossible; it is none of my 
affair." 



"7 



CHAPTER VI 

THE SEQUENCE OF CROSS-EXAMINATION 

Much depends upon the sequence in which one con- 
ducts 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 docu- 
mentary 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 com- 
mon error of showing the witness the letter for identifica- 
tion, 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 get- 
ting ready his explanations in anticipation of the ques- 
tion 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 has 

ii8 



THE SEQUENCE OF CROSS-EXAMINATION 

made in his direct testimony, and which his letter contra- 
dicts. " 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 con- 
tradicting 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 get- 
ting 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 ? " " Did 

119 



THE ART OF CROSS-EXAMINATION 

you tell your counsel about it ? " " Were you intending 
to deceive him ? " " What was your object in trying to 
mislead the jury ? " ^ 

" 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 pulled that nail out again." 

Sometimes it is advisable to deal the witness a sting- 
ing 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 ques- 
tions 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 often 

1 In Chapter XI {infra) is given in detail the cross-examination of the 
witness Pigott by Sir Charles Russell, which affords a most striking example 
of the most effective use that can be made of an incriminating letter. 

1 20 



THE SEQUENCE OF CROSS-EXAMINATION 

enable you to obtain from him truthful answers on sub- 
jects 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 wit- 
ness back to his original story and give him the oppor- 
tunity 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 alto- 
gether." 

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 contradic- 
tions 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 tem- 
per on such occasions by becoming sullen ; he begins by 
giving evasive answers, and ends by refusing to answer 

121 



THE ART OF CROSS-EXAMINATION 

at 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 pres- 
ent 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 of 

122 



THE SEQUENCE OF CROSS-EXAMINATION 

self-contradictions from which he will never be able to 
extricate himself. 

Some witnesses, though unwilling to perjure them- 
selves, are yet determined not to tell the whole truth 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 (gen- 
erally 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 aim- 
ing 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 of 

123 



THE ART OF CROSS-EXAMINATION 

the 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 qualifica- 
tion 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 for a good place to stop. Nothing can be 
more important than to close your examination with a 
triumph. So many lawyers succeed in catching a wit- 
ness in a serious contradiction ; but, not satisfied with 
this, go on asking questions, and taper off their exami- 
nation 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 expose 

124 



THE SEQUENCE OF CROSS-EXAMINATION 

to 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.^ 

^ " Curiosities of Law and Lawyers." 



125 



CHAPTER Vn 

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 hap- 
pens 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 fasci- 
nation of the art. The particular method you use in any 
given case depends upon the degree of importance you 

126 



SILENT CROSS-EXAMINATION 

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 wit- 
ness. In fact, it may be said that the truly great trial 
lawyer is he who, while knowing perfectly well the es- 
tablished 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 wit- 
ness 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 ad- 
vocate of his time, and second only to Erskine as a jury 
lawyer, once indulged himself in this silent mode of 

127 



THE ART OF CROSS-EXAMINATION 

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 
smilco " 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 remem- 
bered that a futile attempt only strengthens the witness 
with the jury. It cannot be too often repeated, there- 
fore, 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 manasfement and settlement of his father's estate. 

o 

The defence was insanity ; but the prisoner, though evi- 
dently suffering from the early stages of some serious 
brain disorder, was still not insane in the legal accepta- 
tion 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. 

128 



SILENT CROSS-EXAMINATION 

Dr. Allan McLane 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 cor- 
rectly of the prisoner's present condition. The wily 
advocate evidently looked upon District Attorney De- 
Lancey 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 there- 
with, and upon the examination-in-chief, Mr. Howe con- 
tented 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. 
1 129 



THE ART OF CROSS-EXAMINATION 

" You may cross-examine," thundered Howe, with one 
of his characteristic gestures. There was a hurried con- 
sultation 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, / 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 pre- 
possessing 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 

130 



SILENT CROSS-EXAMINATION 

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 experi- 
enced witness, had proved the presence of arsenic, and, 
as I imagine, to the great disappointment of my solici- 
tor, 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 in- 
formation, and I had my first lesson in the art of ' silent 
cross-examination.' " 

Another exceedingly interesting and useful lesson in 
the art of silent cross-examination will be found in the 
following story as told by Richard Harris, K. C, in the 
London Law Journal iox 1902. 

" A long time ago, in the East End of London, 
lived a manufacturer of the name of Waring. He 
was in a large way of business, had his country house, 
where his family lived, and his town establishment. 

131 



THE ART OF CROSS-EXAMINATION 

He was a man of great parochial eminence and respect 
ability. 

" Among the many hands he employed was a girl of 
the name of Harriet Smith. She came from the country 
and had not quite lost the bloom of rusticity when the 
respectable Mr. Waring fell in love with her. Had 
Harriet known he was married, in all probability she 
would have rejected his respectable attentions. He 
induced her to marry him, but it was to be kept secret; 
her father was not to know of it until such time as suited 
Mr. Waring's circumstances. 

" In the course of time there were two children ; 
and then unfortunately came a crisis in Mr. Waring's 
affairs. He was bankrupt. The factory and ware- 
house were empty, and Harriet was deprived of her 
weekly allowance. 

" One day when Waring was in his warehouse, won- 
dering, probably, what would be his next step, old Mr. 
Smith, the father of Harriet, called to know what had 
become of his daughter. ' That,' said Mr. Waring, ' is 
exactly what I should like to know.' She had left him, 
it seemed, for over a year, and, as he understood, was 
last seen in Paris. The old man was puzzled, and 
informed Waring that he would find her out, dead or 
alive; and so went away. It was a strange thing, said the 
woman in whose house Mrs. Waring had apartments, that 
she should have gone away and never inquired about her 
children, especially as she was so fond of them. 

132 



SILENT CROSS-EXAMINATION 

" She had gone nearly a year, and in a few days Mr, 
Waring was to surrender the premises to his landlord. 
There never was a man who took things more easily 
than Mr. Waring ; leaving his premises did not disturb 
him in the least, except that he had a couple of rather 
large parcels which he wanted to get away without 
anybody seeing him. It might be thought that he had 
been concealing some of his property if he were to be 
seen taking them away. 

" It happened that there had been a youth in his 
employ of the name of Davis — James Davis — a plain 
simple lad enough, and of kind obliging disposition. 
He had always liked his old master, and was himself a 
favorite. Since the bankruptcy he had been apprenticed 
to another firm in Whitechapel, and one Saturday night 
as he was strolling along toward the Minories to get 
a little fresh air, suddenly met his old master, who 
greeted him with his usual cordiality and asked him 
if he had an hour to spare, and, if so, would he oblige 
him by helping him to a cab with a couple of parcels 
which belonged to a commercial traveller and contained 
valuable samples ? James consented willingly, and 
lighting each a cigar which Mr. Waring produced, they 
walked along, chatting about old times and old friends. 
When they got to the warehouse there were the two 
parcels, tied up in American cloth. 

" ' Here they are,' said Mr. Waring, striking a light. 
'You take one, and I'll take the other; they're pretty 

133 



THE ART OF CROSS-EXAMINATION 

heavy and you must be careful how you handle them, or 
some of the things might break.' 

" When they got to the curb of the pavement, Mr, 
Waring said, ' Stop here, and I'll fetch a four-wheeler.' 

" While James was waiting, a strange curiosity to look 
into the parcels came over him ; so strange that it was 
irresistible, and accordingly he undid the end of one 
of them. Imagine the youth's horror when he was 
confronted with a human head that had been chopped 
off at the shoulders ! 

" ' My hair stood on end,' said the witness, ' and my hat 
fell off.' But his presence of mind never forsook him. 
He covered the ghastly ' relic of mortality ' up and stood 
like a statue, waiting Mr. Waring's return with his cab. 

" ' Jump in, James,' said he, after they had put the 
'samples' on the top of the cab. But James was not in 
the humor to get into the cab. He preferred running 
behind. So he ran behind all along Whitechapel road, 
over London bridge, and away down Old Kent road, 
shouting to every policeman he saw to stop the cab, but 
no policeman took any notice of him except to laugh 
at him for a lunatic. The ' force ' does not disturb its 
serenity of mind for trifles. 

" By and by the cab drew up in a back street in front of 
an empty house, which turned out to be in the possession 
of Mr. Waring's brother ; a house built in a part of Old 
London with labyrinths of arches, vaults, and cellars in 
the occupation of rats and other vermin. 

134 



SILENT CROSS-EXAMINATION 

" James came up, panting, just as his old master had 
taken his first packet of samples into the house. He 
had managed somehow or other to get a policeman to 
listen to him. 

" The policeman, when Mr. Waring was taking in the 
second parcel, boldly asked him what he'd got there. 

" ' Nothing for you,' said Mr. Waring. 

" ' I don't know about that,' replied the policeman ; 
* let's have a look,' 

" Here Mr. Waring lost his presence of mind, and 
offered the policeman, and another member of the force 
who had strolled up, a hundred pounds not to look at 
the parcels. 

" But the force was not to be tampered with. They 
pushed Mr. Waring inside the house, and there dis- 
covered the ghastly contents of the huge bundles. The 
policemen's suspicions were now aroused, and they pro- 
ceeded to the police station, where the divisional surgeon 
pronounced the remains to be those of a young woman 
who had been dead for a considerable time and buried in 
chloride of lime. 

" Of course this was no proof of murder, and the 
charge of murder against Waring was not made until a 
considerable time after — not until the old father had 
declared time after time that the remains were those of 
his daughter Harriet. 

" At length the treasury became so impressed with the 
old man's statement that the officials began to think it 

135 



THE ART OF CROSS-EXAMINATION 

might be a case of murder after all, especially as there 
were two bullet-wounds at the back of the woman's head, 
and her throat had been cut. There was also some 
proof that she had been buried under the floor of Mr. 
Waring's warehouse, some hair being found in the grave, 
and a button or two from the young woman's jacket. 

" All these things tended to awaken the suspicion of 
the treasury officials. Of course there was a suggestion 
that it was a case of suicide, but the Lord Chief Justice 
disposed of that later on at the trial by asking how a 
woman could shoot herself twice in the back of the head, 
cut her throat, bury herself under the floor, and nail the 
boards down over her grave. 

" Notwithstanding it was clear that no charge of 
murder could be proved without identification, the treas- 
ury boldly made a dash for the capital charge, in the 
hope that something might turn up. And now, driven 
to their wits' end, old Mr. Smith was examined by one 
of the best advocates of the day, and this is what he 
made of him : — 

" ' You have seen the remains ? ' 
" ' Yes.' 

"' Whose do you believe them to be ?* 
"' My daughter's, to the best of my belief.' 
"' Why do you believe them to be your daughter's.?* 
" ' By the height, the color of the hair, and the small- 
ness of the foot and leg.' 

" That was all ; and it was nothing. 

136 



SILENT CROSS-EXAMINATION 

" But there must needs be cross-examination if you are 
to satisfy your client. So the defendant's advocate 
asks : — 

" ' Is there anything else upon which your belief is 
founded ? ' 

" ' No,' hesitatingly answers the old man, turning his 
hat about as if there was some mystery about it. 

"There is breathless anxiety in the crowded court, for 
the witness seemed to be revolving something in his 
mind that he did not like to brino^ out. 

" ' Yes,' he said, after a dead silence of two or three 
minutes. ' My daughter had a scar on her leg.' 

" There was sensation enough for the drop scene. 
More cross-examination was necessary now to get rid of 
the business of the scar, and some reexamination, too. 

" The mark, it appeared, was caused by Harriet's 
having fallen into the fireplace when she was a girl. 

" ' Did you see the mark on the remains ? ' asked the 
prisoner's counsel. 

" ' No ; I did not examine for it. I hadn't seen it for 
ten years.' 

" There was much penmanship on the part of the 
treasury, and as many interchanges of smiles between 
the officials as if the discovery had been due to their 
sagacity ; and they went about saying, ' How about the 
scar } How will he get over the scar ? What do you 
think of the scar ? ' Strange to say, the defendant's 
advisers thought it prudent to ask the magistrate to 

137 



THE ART OF CROSS-EXAMINATION 

allow the doctors on both sides to examine the remains 
in order to ascertain whether there was a scar or not, 
and, stranger still, while giving his consent, the magis- 
trate thought it was very immaterial. 

" It proved to be so material that when it was found 
on the leg, exactly as the old man and a sister had de- 
scribed it, the doctors cut it out and preserved it for 
production at the trial. 

" After the discovery, of course the result of the trial 
was a foregone conclusion. 

" It will be obvious to the sagacious reader that the 
blunder indicated was not the only one in the case. On 
the other side was one of equal gravity and more 
unpardonable, which needs no pointing out. Justice, 
baffled by want of tact on one side, was righted by an 
accident on the other." 



138 



CHAPTER VIII 

CROSS-EXAMINATION TO THE " FALLACIES OF TESTIMONY ** 

It is intended in this chapter to analyze some of the 
elements of human nature and human understanding 
that combine to conceal the truth about any given 
subject under investigation, where the witnesses are 
themselves honest and unconscious of any bias, or parti- 
sanship, or motive for erroneous statement. 

Rufus Choate once began one of his more abstruse 
arguments before Chief Justice Shaw in the following 
manner : " In coming into the presence of your Honor 
I experience the same feelings as the Hindoo when he 
bows before his idol. I realize that you are ugly, but I 
feel that you are great ! " 

I am conscious of something of the same feeling as I 
embark upon the following discussion. I realize the 
subject is dry, but I feel that its importance to all serious 
students of advocacy is great. 

No one can frequent our courts of justice for any 
length of time without finding himself aghast at the 
daily spectacle presented by seemingly honest and intel- 
ligent men and women who array themselves upon 
opposite sides of a case and testify under oath to what 

139 



THE ART OF CROSS-EXAMINATION 

appear to be absolutely contradictory statements of 
fact. 

It will be my endeavor in what follows to deal with this 
subject from its psychological point of view and to trace 
some of the causes of these unconscious mistakes of wit- 
nesses, so far as it is possible. The inquiry is most ger- 
mane to what has preceded, for unless the advocate 
comprehends something of the sources of the fallacies 
of testimony, it surely would become a hopeless task 
for him to try to illuminate them by his cross-exami- 
nations. 

It has been aptly said that " Knowledge is only the 
impression of one's mind and not the fact itself which 
may present itself to many minds in many different 
aspects." The unconscious sense impressions — sight, 
sound, or touch — would be the same to every human 
mind ; but once you awaken the mind to consciousness, 
then the original impression takes on all the color of 
motive, past experience, and character of the individual 
mind that receives it. The sensation by itself will be 
always the same. The variance arises when the sensa- 
tion is interpreted by the individual and becomes a per- 
ception of his own mind. 

When a man on a hot day looks at a running stream 
and sees the delicious coolness, he is really adding some- 
thing of himself, which he acquired by his past experi- 
ence to the sense impression which his eye gives him. 
A different individual might receive the impression of 

140 



"FALLACIES OF TESTIMONY" 

tepid insipidity instead of " delicious coolness " in accord- 
ance with his own past experiences. The material of 
sensation is acted on by the mind which clothes the sen- 
sation with the experiences of the individual.^ Helm- 
holtz distinctly calls the perception of distance, for 
example, an unconscious inferejice, — a mechanically 
performed act of judgment. 

The mterpretatio7i of a sensation is, therefore, the act 
of the individual, and different individuals will naturally 
vary in their interpretations of the same sensation ac- 
cording to their previous experiences and various mental 
characteristics. This process is most instantaneous, 
automatic, and unconscious. " The artist immediately 
sees details where to other eyes there is a vague or 
confused mass ; the naturalist sees an animal where 
the ordinary eye only sees a form."^ An adult sees an 
infinite variety of things that are meaningless to the 
child. 

Likewise the same impression may be differently in- 
terpreted by the same individual at different times, due 
in part to variations in his state of attention at the 
moment, and in the degree of the mind's readiness to 
look at the impression in the required way. A timid 
man will more readily fall into the illusion of ghost-see- 
ing than a cool-headed man, because he is less attentive 
to the actual impression of the moment. 

^"Illusions," Sully (in part). 

""Problems of Life and Mind," C. H. Lewes, p. 107. 
141 



THE ART OF CROSS-EXAMINATION 

Every mind is attentive to what it sees or hears, more 
or less, according to circumstances. It is in the region 
of hazy impressions that the imagination is wont to get in 
its most dangerous work. It often happens that, when 
the mind is either inactive, or is completely engrossed by 
some other subject of thought, the sensation may neither 
be perceived, nor interpreted, nor remembered, notwith- 
standing there may be evidence, derived from the re- 
spondent movements of the body, that it has been felt ; 
as, for example, a person in a state of imperfect sleep 
may start at a loud sound, or turn away from a bright 
light, being conscious of the sensation and acting auto- 
matically upon it, but forming no kind of appreciation of 
its source and no memory of its occurrence.^ Such is 
the effect of sensation upon complete inattention. It 
thus appears that it is partly owing to this variation in 
intensity of attention that different individuals get such 
contradictory ideas of the same occurrence or conversa- 
tion. When we add to this variance in the degree of 
attention, the variance, just explained, in the individual 
interpretation or coloring of the physical sensation, we 
have still further explanation of why men so often differ 
in what they think they have seen and heard. 

Desire often gives rise to still further fallacy. Desire 
prompts the will to fix the attention on a certain point, 
and this causes the emphasis of this particular point or 
proposition to the exclusion of others. The will has the 

1" Mental Philosophy," Carpenter (in part). 
142 



"FALLACIES OP TESTIMONY" 

power of keeping some considerations out of view, and 
thereby difninishes their force, while it fixes the attention 
upon others, and thereby increases their force. 

Sir John Romilly, in an opinion reported in i6 Beavan, 
105, says: "It must always be borne in mind how 
extremely prone persons are to believe what they wish. 
It is a matter of frequent observation that persons dwell- 
ing for a long time on facts which they believed must 
have occurred, and trying to remember whether they did 
so or not, come at last to persuade themselves that they 
do actually recollect the occurrences of circumstances 
which at first they only begin by believing must have 
happened. What was originally the result of imagina- 
tion becomes in time the result of recollection. Without 
imputing anything like wilful and corrupt perjury to wit- 
nesses of this description, they often in truth bo7ia fide 
believe that they have heard and remembered conversa- 
tions and observations which in truth never existed, but 
are the mere offspring of their imaginations." 

Still another most important factor and itself the 
source of an enormous number of " fallacies of testi- 
mony " is memory. We are accustomed to speak of 
memory as if it consisted in an exact reproduction of 
past states of consciousness, yet experience is continually 
showing us that this reproduction is very often inexact 
through the modifications which the " trace " has under- 
gone in the interval. Sometimes the trace has been 
partially obliterated ; and what remains may serve to 

143 



THE ART OF CROSS-EXAMINATION 

give a very erroneous (because imperfect) view of the 
occurrence. When it is one in which our own feeUngs 
are interested, we are extremely apt to lose sight of what 
goes against them, so that the representation given by 
memory is altogether one-sided. This is continually 
demonstrated by the entire dissimilarity of the accounts 
of the same occurrence or conversation which is often 
given by two or more parties concerned in it, even when 
the matter is fresh in their minds, and they are honestly 
desirous of telling the truth. This diversity will usually 
become still more pronounced with the lapse of time, 
the trace becoming gradually but unconsciously modified 
by the habitual course of thought and feeling, so that 
when it is so acted upon after a lengthened interval as to 
bring up a reminiscence of the original occurrence, that 
reminiscence really represents, no^ the original occur- 
rence, but the modified trace of it.^ 

Mr. Sully says : " Just as when distant objects are 
seen mistily our imaginations come into play, leading 
us to fancy that we see something completely and dis- 
tinctly, so when the images of memory become dim, 
our present imagination helps to restore them, putting 
a new patch into the old garment. If only there is 
some relic even of the past preserved, a bare sugges- 
tion of the way in which it may have happened will 
often suffice to produce the conviction that it actually 
did happen in this way. The suggestions that naturally 

^ "Campbell's Mental Physiology" (in great part). 
144 



"FALLACIES OF TESTIMONY" 

arise in our minds at such times will bear the stamp of 
our present modes of experience and habits of thought. 
Hence, in trying to reconstruct the remote past we are 
constantly in danger of importing our present selves 
into our past selves." 

Senator George F. Hoar, in his recently published 
" Autobiography of Seventy Years," says : — 

" The recollections of the actors in important political 
transactions are doubtless of great historic value. But I 
ought to say frankly that my experience has taught mf 
that the memory of men, even of good and true men, as 
to matters in which they have been personal actors, is 
frequently most dangerous and misleading. I could re- 
count many curious stories which have been told me by 
friends who have been writers of history and biography, 
of the contradictory statements they have received from 
the best men in regard to scenes in which they have been 
present." 

It is obviously the province of the cross-examiner to 
detect the nature of any foreign element which may 
have been imported into a witness's memory of an event 
or transaction to which he testifies, and if possible to 
discover the source of the error; whether the memory 
has been warped by desire or imagination, or whether 
the error was one of original perception, and if so, 
whence it arose, whether from lack of attention or 
from wrong association of previous personal expe- 
rience. 

K 145 



THE ART OF CROSS-EXAMINATION 

Not only does our idea of the past become inexact 
by the mere decay and disappearance of essential fea- 
tures ; it becomes positively incorrect through the gradual 
incorporation of elements that do not properly belong 
to it. Sometimes it is easy to see how these extraneous 
ideas become imported into our mental representation 
of a past event. Suppose, for example, that a man 
has lost a valuable scarf-pin. His wife suggests that 
a particular servant, whose reputation does not stand 
too high, has stolen it. When he afterwards recalls 
the loss, the chances are that he will confuse the fact 
with the conjecture attached to it, and say he remem- 
bers that this particular servant did steal the pin. Thus 
the past activity of imagination serves to corrupt and 
partially falsify recollections that have a genuine basis 
of fact.^ 

A very striking instance of the effect of habit on the 
memory, especially in relation to events happening in 
moments of intense excitement, was afforded by the 
trial of a man by the name of Twichell, who was justly 
convicted in Philadelphia some years ago, although by 
erroneous testimony. In order to obtain possession 
of some of his wife's property which she always wore 
concealed in her clothing, Twichell, in great need of 
funds, murdered his wife by hitting her on the head 
with a slug shot. He then took her body to the yard 
of the house in which they were living, bent a poker, 

* "Illusions," p. 264 (in part). 
146 



"FALLACIES OF TESTIMONY" 

and covered it with his wife's blood, so that it would 
be accepted as the instrument that inflicted the blow, 
and having unbolted the gate leading to the street, 
left it ajar, and went to bed. In the morning, when the 
servant arose, she stumbled over the dead body of her 
mistress, and in great terror she rushed through the 
gate, into the street, and summoned the police. The 
servant had always been in the habit of unbolting this 
gate the first thing each morning, and she swore on 
the trial that she had done the same thing upon the 
morning of the murder. There was no other way the 
house could have been entered from without excepting 
through this gate. The servant's testimony was, there- 
fore, conclusive that the murder had been committed 
by some one from within the house, and Twichell was 
the only other person in the house. 

After the conviction Twichell confessed his guilt to 
his lawyer and explained to him how careful he had 
been to pull back the bolt a7id leave the gate ajar for 
the very purpose of diverting suspicion from himself. 
The servant in her excitement had failed either to notice 
that the bolt was drawn or that the gate was open, and 
in recalling the circumstance later she had allowed her 
usual daily experience and habit of pulling back the 
bolt to become incorporated into her recollection of 
this particular morning. It was this piece of fallacious 
testimony that really convicted the prisoner. 

As the day of the execution drew near, Twichell 

147 



THE ART OF CROSS-EXAMINATION 

complained to the prison authorities that the print in 
the prison Bible was too fine for him to read, and re- 
quested that his friend — a druggist — be allowed to 
supply him with a Bible in larger type. This friend 
saturated some of the pages of the Bible with corrosive 
sublimate. Twichell rolled these pages up into balls, 
and, with the aid of water, swallowed them. Death was 
almost instantaneous. 

Boswell in his " Life of Dr. Johnson,"^ has related the 
particulars of his first meeting with Dr. Johnson, whom 
he had been long very desirous of seeing and conversing 
with. At last they accidentally met at the house of a 
Mr. Davies. 

Mr. Arthur Murphy, in his " Essay on the Life and 
Genius of Dr. Johnson," likewise gives a description of 
Boswell's first meeting with Johnson. Concerning Mr. 
Murphy's account of the matter, Mr. Boswell says : " Mr. 
Murphy has given an account of my first meeting with 
Dr. Johnson considerably different from my own, and I 
am persuaded, without any consciousness of error, his 
memory at the end of near thirty years has undoubtedly 
deceived him, and he supposes himself to have been 
present at a scene which he has probably heard inaccu- 
rately described by others. In my own notes, taken on 
the very day in which I ajn confident I marked everythijig 
material that passed, no mention is made of this gentle- 
man ; and I am sure that I should not have omitted one 

^ Vol. ii., p. 165. 
148 



"FALLACIES OF TESTIMONY" 

so well-known in the literary world. It may easily be 
imagined that this, my first interview with Dr. Johnson, 
with all its circumstances, made a strong impression on 
my mind and would be registered with peculiar atten- 
tion." 

A writer in the Quarterly Review} speaking of this 
same occurrence, says : " An erroneous account of Bos- 
well's first introduction to Dr. Johnson was published by 
Arthur Murphy, who asserted that he witnessed it. Bos- 
well's appeal to his own strong recollection of so memo- 
rable an occasion and to the narrative he entered in his 
Journal at the time show that Murphy's account was 
quite inaccurate, and that he was iiot presejit at the scene. 
This, Murphy did not later venture to contradict. As 
Boswell suggested, he had doubtless heard the circum- 
stances repeated till at the end of thirty years he had 
come to fancy that he was an actor in them. His good 
faith was unquestionable, and that he should have been 
so deluded is a memorable example of the fallibility of 
testimony and of the extreme difificulty of arriving at the 
truth." 

Perhaps the most subtle and prolific of all of the 
"fallacies of testimony" arises out of unconscious parti- 
sanship. It is rare that one comes across a witness in 
court who is so candid and fair that he will testify as 
fully and favorably for the one side as the other. 

It is extraordinary to mark this tendency we all have 

* Quarterly Review^ vol. ciii., p. 292. 
149 



THE ART OF CROSS-EXAMINATION 

when once we are identified with a " side " or cause, to 
accept all its demands as our own. To put on the 
uniform makes the policeman or soldier, even when in 
himself corrupt, a guardian of law and order. 

Witnesses in court are almost always favorable to 
the party who calls them, and this feeling induces them 
to conceal some facts and to color others which might, 
in their opinion, be injurious to the side for which they 
give their testimony. This partisanship in the witness- 
box is most fatal to fair evidence; and when we add 
to the partisanship of the witness the similar leaning of 
the lawyer who is conducting the examination, it is 
easy to produce evidence that varies very widely from 
the exact truth. This is often done by overzealous 
practitioners by putting leading questions or by incor- 
porating two questions into one, the second a simple 
one, misleading the witness into a " yes " for both, and 
thus creating an entirely false impression. 

What is it in the human make-up which invariably 
leads men to take sides when they come into court ? In 
the first place, witnesses usually feel more or less com- 
plimented by the confiderice that is placed in them by 
the party calling them to prove a certain state of facts, 
and it is human nature to try to prove worthy of this 
confidence. This feeling is unconscious on the part 
of the witness and usually is not a strong enough motive 
to lead to actual perjury in its full extent, but it serves 
as a sufficient reason why the witness will almost un- 

150 



"FALLACIES OF TESTIMONY" 

consciously dilute or color the evidence to suit a par 
ticular purpose and perhaps add only a bit here, or 
suppress one there, but this bit will make all the differ- 
ence in the meaning. 

Many men in the witness-box feel and enjoy a sense 
of power to direct the verdict toward the one side or the 
other, and cannot resist the temptation to indulge it and 
to be thought a " fine witness " for their side. I say 
their side; the side for which they testify always becomes 
their side the moment they take the witness chair, and 
they instinctively desire to see that side win, although 
they may be entirely devoid of any other interest in the 
case whatsoever. 

It is a characteristic of the human race to be intensely 
interested in the success of some one party to a contest, 
whether it be a war, a boat race, a ball game, or a law- 
suit. This desire to win. seldom fails to color the testi- 
mony of a witness and to create fallacies and inferences 
dictated by the witness's fee liJigs, rather than by his intel- 
lect or the dispassionate powers of observation. 

Many witnesses take the stand with no well-defined 
motive of what they are going to testify to, but upon 
discovering that they are being led into statements 
unfavorable to the side on which they are called, experi- 
ence a sudden dread of being considered disloyal, or 
" going back on " the party who selected them, and 
immediately become unconscious partisans and allow 
this feeling to color or warp their testimony. 

151 



THE ART OF CROSS-EXAMINATION 

There is still another class of persons who would not 
become witnesses for either side unless they felt that 
some wrong or injustice had been done to one of the 
parties, and thus to become a witness for the injured 
party seems to them to be a vindication of the right. 
Such witnesses allow their feelings to become enlisted in 
what they believe to be a cause of righteousness, and 
this in turn enlists their sympathy and feelings and 
prompts them to color their testimony as in the case of 
those influenced by the other motives already spoken of. 

One sees, perhaps, the most marked instances of par- 
tisanship in admiralty cases which arise out of a colli- 
sion between two ships. Almost invariably all the crew 
on one ship will testify in unison against the opposing 
crew, and, what is more significant, such passengers as 
happen to be on either ship will almost invariably be 
found corroborating the stories of their respective crews. 

It is the same, in a lesser degree, in an ordinary per- 
gonal injury case against a surface railway. Upon the 
happening of an accident the casual passengers on board 
a street car are very apt to side with the employees in 
charge of the car, whereas the injured plaintiff and 
whatever friends or relatives happen to be with him at 
the time, will invariably be found upon the witness-stand 
testifying against the railway company. 

It is difficult to point out the methods that should be 
employed by the cross-examiner in order to expose to a 
jury the particular source of the fallacy that has warped 

152 



"FALLACIES OF TESTIMONY" 

the judgment, choked the conscience, or blinded the in- 
telHgence, of any particular witness. It must necessarily 
all depend upon the circumstances arising in each par- 
ticular case. All I have attempted to do is to draw 
attention to the usual sources of these fallacies, and I 
must perforce leave it to the ingenuity of the trial lawyer 
to work out his own solution when the emergency arises. 
This he certainly would never be able to do successfully, 
unless he had given careful thought and study to this 
branch of his professional equipment. 

The subject is a great one, and rarely, if ever, dis- 
cussed by law writers, who usually pass it by with the 
bare suggestion that it is a topic worthy of deep in- 
vestigation upon the proper occasion. I trust that my 
few suggestions may serve as a stimulus to some philo- 
sophic legal mind to elaborate and elucidate the reasons 
for the existence of this flaw in the human mechanism, 
which appears to be the chief stumbling block in our 
efforts to arrive at truth in courts of justice. 



153 



CHAPTER IX 

CROSS-EXAMINATION TO PROBABILITIES PERSONALITY OF 

THE EXAMINER, ETC. 

In delivering one of his celebrated judgments Lord 
Mansfield said : " As mathematical and absolute cer- 
tainty is seldom to be attained in human affairs, reason 
and public utility require that judges and all mankind 
in forming their opinion of the truth of facts should 
be regulated by the superior number of probabilities 
on the one side or the other." 

Theoretically the goal we all strive for in litigation 
is the probable truth. It is therefore in this effort to 
develop the probabilities in any given case, that a trial 
lawyer is called upon for the exercise of the most 
active imagination and profound knowledge of men and 
things. 

It requires but little experience in court to arrive 
at the conclusion that the great majority of cases are 
composed of a few principal facts surrounded by a host 
of minor ones; and that the strength of either side of 
a case depends not so much upon the direct testimony 
relating to these principal facts alone, but, as one writer 
very tersely puts it, " upon the support given them by 

154 



CROSS-EXAMINATION TO PROBABILITIES 

the probabilities created by establishing and developing 
the relation of the mmor facts in the case." 

One of the latest causes of any importance, tried in 
our New York courts this year, afforded an excellent 
illustration of the relative importance of the main facts 
in a case to the multitudinous little things which sur- 
round any given issue, and which when carefully 
gathered together and skilfully grouped, create the 
probabilities of a case. The suit was upon an oral 
agreement for the purchase and sale of a large block 
of mining stock with an alleged guaranty agamst loss. 
The plaintiff and defendant were both gentlemen hold- 
ing prominent positions in the business world and of 
unquestioned integrity and veracity. The only issue in 
the case was the simple question, which one was correct 
in his memory of a conversation that had occurred five 
years before. The plaintiff swore there was an agree- 
ment by the defendant to repurchase the stock from 
him, at the price paid, at plaintiff's option. The de- 
fendant swore no such conversation ever took place. 
Where was the truth } The direct yea and nay of this 
proposition occupied about five minutes of the court's 
time. The surrounding circumstances, the countless 
straws pointing to the probabilities on the one side or 
the other, occupied three full days, and no time was 
wasted. 

In almost every trial there are circumstances which 
at first may appear light, valueless, even disconnected, 

155 



THE ART OF CROSS-EXAMINATION 

but which, if skilfully handled, become united together 
and at last form wedges which drive conviction into 
the mind. This is obviously the business of the 
cross-examiner, although it is true that the examina- 
tion of one's own witnesses, as well, often plays an 
important part in the development of probabilities. 

All men stamp as probable or improbable that which 
they themselves would, or would not, have said or done 
under similar circumstances. " As in water, face an- 
swereth to face, so the heart of man to man." ^ Things 
inconsistent with human knowledge and experience are 
properly rated as improbable. It was Aristotle who 
first said, " Probability is never detected bearing false 
testimony." 

Apart from experience in human affairs and the 
resultant knowledge of men, it is industry and diligent 
preparation for the trial which will enable an advocate 
to handle the circumstances surrounding the main facts 
in a case with the greatest effect upon a judge or jury. 

One who has thought intently upon a subject which 
he is going to develop later on in a court, and has 
sought diligently for signs or " straws " to enable him 
to discover the true solution of a controversy, will, when 
the occasion arises upon the trial, catch and apply facts 
which a less thoughtful person would pass by almost 
unnoticed. Careful study of his case before he comes 
into court will usually open to an advocate avenues for 

^ Proverbs xxvii. 19. 
156 



CROSS-EXAMINATION TO PROBABILITIES 

successful cross-examinations to the probabilities of a 
story, which will turn out to be his main arguments for 
a successful verdict in his favor. 

" It is acute knowledge of human nature, thorough 
preliminary survey of the question and of the interests 
involved, and keen imagination which enable the ques- 
tioner to see all the possibilities of a case. It is a 
cautious good judgment that prevents him from assum- 
ing that to be true which he only imagines may be 
true, and professional self-restraint that enables him to 
pass by all opportunities which may give a witness a 
chance for successful fencing."^ 

In the search for the probable it is often wise to use 
questions that serve for little more than a suggestion of 
the desired point. Sir James Scarlett used to allow the 
jurors and even the judges to discover for themselves 
the best parts of his case. It flattered their vanity. 
Scarlett went upon the theory, he tells us in the frag- 
ments of his autobiography which were completed before 
his death, that whatever strikes the mind of a juror as 
the result of his own observation and discovery makes 
always the strongest impression upon him, and the juror 
holds on to his own discovery with the greatest tenacity 
and often, possibly, to the exclusion of every other fact 
in the case. 

This search for probabilities, however, is a hazardous 
occupation for the inexperienced. There is very great 

1 Austin Abbott, Esq., in The Daily Register, December, 1886. 



THE ART OF CROSS-EXAMINATION 

danger of bringing out some incidental circumstance 
that serves only to confirm or corroborate the state- 
ments of a witness made before the cross-examination 
began. Thus one not only stumbles upon a new circum- 
stance in favor of his opponent, but the fact that it came 
to light during the cross-examination instead of in the 
direct multiplies its importance in the eyes of a jury ; 
for it has often been said, and it is a well-recognized 
fact, that accidental testimony always makes a greater 
impression on a juror's mind than that deliberately and 
designedly given. 

Another danger in this hazardous method of cross- 
examination is the development of such a mass of 
material that the minds of the jurors become choked 
and unable to follow intelligently. If one cannot make 
his points stand out clearly during his cross-examination, 
he had better keep his seat. It used to be said of Law, a 
famous English barrister, that " he wielded a huge two- 
handed sword to extract a fly from a spider's web." 

At the end of a long but unsuccessful cross-examina- 
tion of a plaintiff, the kind we have been discussing, 
an inexperienced trial lawyer once remarked rather 
testily, " Well, Mr. Whittemore, you have contrived to 
manage your case pretty well." " Thank you, coun- 
sellor," replied the witness, with a twinkle in his eye, 
"perhaps I might return the compliment if I were not 
testifying under oath." 

It so frequently happens that a lawyer who has made 

158 



CROSS-EXAMINATION TO PROBABILITIES 

a failure of his cross-examination accentuates that 
failure by a careless side remark, instead of a dignified 
retreat, that I cannot refrain from relating another anec- 
dote, in this connection, to illustrate the danger of such 
side remarks ; for I am of the opinion that there is no 
surer way to avoid such occurrences than to have ever 
present in one's mind the mistakes of others. 

One of the most distinguished practitioners in the 
criminal courts of the city of Philadelphia was prose- 
cuting a case for the government. His witnesses had 
been subjected to a very vehement cross-examination 
by the counsel for the prisoner, but with very little 
effect upon the jury. Counsel for the prisoner resumed 
his seat quietly, recognizing his failure, but content to 
wait for another opportunity. After the testimony for 
the state had closed, the prosecuting attorney arose and 
foolishly remarked, " Now, Mr. Ingraham, I give you 
fair warning, after the way you have treated my wit- 
nesses, I intend to handle your witnesses without glovesr 
" That is more than any one would care to do with 
yours, my friend," replied Mr. Ingraham ; and the dirt 
seemed, somehow, to stick to the state witnesses through- 
out the trial. 

An excellent example of effective cross-examination 
to the circumstances surrounding the main question in a 
case — the genuineness of a signature — will be found in 
Bigelow's " Bench and Bar." The issue was the forgery 
of a will ; the proponent was a man of high respecta- 

159 



THE ART OF CROSS-EXAMINATION 

bility and good social standing, who had an indirect 
interest to a large amount, if the will, as offered, was 
allowed to be probated. Samuel Warren, the author 
of " Ten Thousand a Year," conducted the cross- 
examination. 

Warren {placing his thumb over the seal and hold- 
ing up the will). " I understand you to say you saw the 
testator sign this instrument } " 

Witness. " I did." 

Warren. " And did you sign it at his request, as sub- 
scribing witness } " 

WitJiess. " I did." 

Warren. " Was it sealed with red or black wax ? " 

Witness. " With red wax." 

Warren. " Did you see him seal it with red wax.? " 

Witness. " I did." 

Warre7i. " Where was the testator when he signed 
and sealed this will } " 

Witness. "In his bed." 

Warren. " Pray, how long a piece of red wax did he 
use .? " 

Witness. " About three inches long." 

Warre7i. " And who gave the testator this piece of 
wax.?" 

Witness. " I did." 
Warren. " Where did you get it ? " 
Witness. " From the drawer of his desk." 
Warren. " How did he melt that piece of wax?** 

i6o 



CROSS-EXAMINATION TO PROBABILITIES 

Witness. " With a candle." 
Warren. " Where did the candle come from ? " 
Witness. " I got it out of a cupboard in the room." 
Warren. " How long should you say the candle was .? " 
Witness. " Perhaps four or five inches long." 
Warren. " Do you remember who lit the candle ? " 
Witness. " I lit it." 

Warren. " What did you light it with ? " 
Witness. " Why, with a match." 
Warren. " Where did you get the match .? " 
Witness. " On the mantel-shelf in the room." 
Here Mr. Warren paused, and fixing his eye upon the 
prisoner, he again held up the will, his thumb still resting 
upon the seal, and said in a solemn, measured tone : — 

Warren. " Now, sir, upon your solemn oath, you saw 
the testator sign this will — he signed it in his bed — at 
his request you signed it as a subscribing witness — you 
saw him seal it — it was with red wax he sealed it — a 
piece of wax about three inches long — he lit the wax 
with a piece of candle which you procured from a cup- 
board — you lit the candle with a match which you 
found on a mantel-shelf 1 " 
Witness. " I did." 

Warren. " Once more, sir — upon your solemn oath, 
you did .? " 

Witness. " I did." 

Warren. " My lord, you will observe this will is sealed 

with a wafer! " 

L i6i 



THE ART OF CROSS-EXAMINATION 

In " Irish Wit and Humor" there is given an illustra- 
tion of the dexterity of Daniel O'Connell in bringing 
about his client's acquittal by a very simple ruse of 
cross-examination. 

O'Connell was employed in defending a prisoner who 
was tried for a murder committed in the vicinity of Cork. 
The principal witness swore strongly against the prisoner 
— one corroborative circumstance was that the prisoner's 
hat was found near the place where the murder was 
committed. The witness swore positively that the hat 
produced was the one found, and that it belonged to the 
prisoner, whose first name was James. 

O'Connell. " By virtue of your oath, are you positive 
that this is the same hat ? " 

Witness. " I am." 

O'Connell " Did you examine it carefully before you 
swore in your information that it was the property of 
the prisoner? " 

Witness. " I did." 

O'Connell (taking up the hat and examining the 
inside carefully, at the same time spelling aloud the name 
"James"). "Now let me see — ' J-A-M-E-S' — do you 
mean those letters were in the hat when you found it } " 

Witness. " I do." 

CComtell " Did you see them there ? " 

Witness. " I did." 

O'Connell " And you are sure this is the same hat } " 

Witness. " I am sure." 

162 



CROSS-EXAMINATION TO PROBABILITIES 

CConnell (holding up the hat to the Bench). " Now. 
my lord, I submit this is an end of this case. There is 
no name whatever inscribed in this hat ! " 

Akin to the effect produced upon a jury by the prob- 
abilities in a case is the personal conviction of the law- 
yer who is conducting it. A man who genuinely and 
thoroughly believes in his own case will make others 
agree with him, often though he may be in the wrong. 

Rufus Choate once said, " I care not how hard the 
case is — it may bristle with difficulties — if I feel I am 
on the right side, that case I win." 

It is this personal consciousness of right that has a 
strong moral and mental effect upon one's hearers. In 
no way can a lawyer more readily communicate to the 
minds of the jury his personal belief in his case than in 
his method and manner of developing, throughout his 
examinations, the probability or improbability of the 
tale which is being unfolded to them. In fact, it is only 
through his examinations of the witnesses and general 
conduct of the trial, and his own personal deportment, 
that a lawyer is justified in impressing upon the jury his 
individual belief regarding the issues in the case. The 
expression in words of a lawyer's opinion is not only 
considered unprofessional, but produces an entirely 
different effect upon a juror from the influence which 
comes from earnestness and the profound conviction of 
the righteousness of the cause advocated. 

Writing upon this branch of the subject, Senator 

163 



THE ART OF CROSS-EXAMINATION 

Hoar says : ^ "It is not a lawyer's duty or his right to 
express his individual opinion. On him the respon- 
sibility of the decision does not rest. He not only 
has no right to accompany the statement of his argu- 
ment with any assertion as to his individual belief, 
but I think the most experienced observers wili agree 
that such expressions, if habitual, tend to diminish and 
not to increase the just influence of the lawyer. . . . 
There never was a weightier advocate before New 
England juries than Daniel Webster. Yet it is on 
record that he always carefully abstained from any posi- 
tiveness of assertion. He introduced his weightiest 
arguments with such phrases as, ' It will be for the 
jury to consider,' ' It may, perhaps, be worth thinking 
of, gentlemen,' or some equivalent phrase, by which he 
kept scrupulously off the ground which belonged to 
the tribunal he was addressing." 

But an advocate is justified in arousing in the minds 
of a jury all the excitement which he feels about the 
case himself. If he feels he is in the right, he can show 
it in a hundred different ways which cannot fail to have 
their effect upon his hearers. It was Gladstone's pro- 
found seriousness that most impressed itself upon every- 
thing that he said. He always made the impression 
upon his hearers that the matter he was discussing was 
that upon which the foundations of heaven and :.;;iith 
rested. Rufus Choate's heart was always in the court- 

* "Autobiography of Seventy Years." 
164 



CROSS-EXAMINATION TO PROBABILITIES 

house. " No gambler ever hankered for the feverish 
dehght of the gaming-table as Choate did for the ab- 
sorbing game, half-chance, half-skill, where twelve 
human dice must all turn up together one way, or there 
is no victory. ... It was a curious sight to see on 
a jury twelve hard-headed and intelligent countrymen — 
farmers, town officers, trustees, men chosen by their 
neighbors to transact their important affairs — after an 
argument by some clear-headed lawyer for the defence 
about some apparently not very doubtful transaction, 
who had brought them all to his way of thinking, and 
had warned them against the wiles of the charmer, when 
Choate rose to reply for the plaintiff — to see their look 
of confidence and disdain — ' You needn't try your wiles 
upon me.' The shoulder turned a little against the 
speaker — the averted eye — and then the change; first, 
the changed posture of the body ; the slight opening of 
the mouth ; then the look, first, of curiosity, and then 
of doubt, then of respect ; the surrender of the eye to the 
eye of the great advocate ; then the spell, the charm, the 
great enchantment — till at last, jury and audience were 
all swept away, and followed the conqueror captive in 
his triumphal march." ^ 

Sir James Scarlett, England's greatest verdict getter, 
always had an appearance of confidence in himself and 
his cause which begot a feeling of confidence in all who 
listened to him. He used to " wind himself into a case 

* *' Autobiography of Seventy Years," Hoar. 
165 



THE ART OF CROSS-EXAMINATION 

like a great serpent." He always had about him "a 
happy mixture of sparkling intelligence and good 
nature, which told amazingly with juries." A writer in 
the Britannia gives the following graphic description 
of Scarlett's appearance in court : " A spectator unac- 
quainted with the courts might have supposed that 
anybody rather than the portly, full-faced, florid man, 
who was taking his ease on the comfortable cushions of 
the front row, was the counsel engaged in the cause. 
Or if he saw him rise and cross-examine a witness, he 
would be apt to think him certainly too indolent to 
attend properly to his business, so cool, indifferent, and 
apparently unconcerned was the way in which the facts 
which his questions elicited were left to their fate, as 
though it were of no consequence whether they were 
attended to or not. Ten to one with him that the plain- 
tiff's counsel would get the verdict, so clear seemed the 
case and so slight the opposition. But in the course of 
time the defendant's turn would come ; and then the 
large-headed, ruddy-faced, easy-going advocate would 
rise slowly from his seat, not standing quite upright, but 
resting on his left hand placed upon the bar, and turning 
sideways to the jury to commence the defence of his 
client. Still the same unpretending nonchalant air was 
continued ; it almost seemed too great an exertion to 
speak ; the chin of that ample face rested upon the still 
more ample chest as though the motion of the lips alone 
would be enough for all that might have to be said. So 

1 66 



CROSS-EXAMINATION TO PROBABILITIES 

much for the first impression. A few moments' reflec- 
tion sufficed to dispel the idea that indolence had any- 
thing to do with the previous quiescence of the speaker. 
Now it became clear that all the while he seemed to 
have been taking his ease bodily, he had been using his 
powers of observation and his understanding. That 
keen gray eye had not stolen glances at the jury, nor at 
the witnesses either, for nothing. Nor had those aban- 
doned facts, drawn out in cross-examination, been un- 
fruitful seeds or cast in barren places. Low as the tone 
of voice was, it was clear and distinct. It was not a 
mere organ of sound, but a medium of communication 
between the mind of the advocate and the minds of the 
jury. Sir James Scarlett did not attempt, like Denman 
or Brougham, to carry the feelings of a jury by storm 
before a torrent of invective or of eloquence ; nor was 
there any obvious sophistry, such as occupied too large 
a space in the speeches of Campbell or Wilde ; it was 
with facts — admitted, omitted or slurred over, as best 
suited his purpose — and with inferences made obvious 
in spite of prepossessions created by the other side, that 
this remarkable advocate achieved his triumphs." 

Personal magnetism is, perhaps, the most important 
of all the attributes of a good trial lawyer. Those 
who possess it never fully realize it themselves and 
only partially, perhaps, when under the influence of a 
large audience. There is nothing like an audience as 
a stimulant to every faculty. The cross-examiner's 

167 



THE ART OF CROSS-EXAMINATION 

questions seem to become vitalized with his knowl- 
edge of the topic of inquiry and his own shrewd dis- 
cernment of the situation of the witness and the relation 
which the witness's interest and feelings bear to the 
topic. His force becomes almost irresistible, but it is 
a force in questions, a force aroused in the mind of 
the witness, not in the voice of the questioner. He 
seems to be able to concentrate all the attention of 
his hearers upon the vital points in the case ; he im- 
parts weight and solidity to all he touches ; he uncon- 
sciously elevates the merits of his case ; he comes 
almost intuitively to perceive the elements of truth or 
falsehood in the face itself of the narrative, without 
any regard to the narrator, and new and undreamed-of 
avenues of attacking the testimony seem to spring into 
being almost with the force of inspiration. 

Such is the life and such the experiences of the 
trial lawyer. But I cannot leave this branch of the 
subject without one sentiment in behalf of the witness, 
as distinguished from the lawyer, by quoting the fol- 
lowing amusing lamentation, which has found its way 
into public print: — 

"Of all unfortunate people in this world, none are 
more entitled to sympathy and commiseration than 
those whom circumstances oblige to appear upon the 
witness-stand in court. You are called to the stand 
and place your hand upon a copy of the Scriptures in 
sheepskin binding, with a cross on the one side and 

1 68 



CROSS-EXAMINATION TO PROBABILITIES 

none on the other, to accommodate either variety of 
the Christian faith. You are then arraigned before 
two legal gentlemen, one of whom smiles at you 
blandly because you are on his side, the other eying 
you savagely for the opposite reason. The gentleman 
who smiles, proceeds to pump you of all you know; and 
having squeezed all he wants out of you, hands you over 
to the other, who proceeds to show you that you are 
entirely mistaken in all your suppositions ; that you 
never saw anything you have sworn to ; that you 
never saw the defendant in your life ; in short, that 
you have committed direct perjury. He wants to 
know if you have ever been in state prison, and 
takes your denial with the air of a man who thinks 
you ought to have been there, asking all the questions 
over again in different ways ; and tells you with an 
awe-inspiring severity, to be very careful what you 
say. He wants to know if he understood you to say 
so and so, and also wants to know whether you meant 
something else. Having bullied and scared you out 
of your wits, and convicted you in the eye of the jury 
of prevarication, he lets you go. By and by everybody 
you have fallen out with is put on the stand to swear 
that you are the biggest scoundrel they ever knew, 
and not to be believed under oath. Then the oppos- 
ing counsel, in summing up, paints your moral photo- 
graph to the jury as a character fit to be handed 
down to time as the type of infamy — as a man who 

169 



THE ART OF CROSS-EXAMINATION 

has conspired against innocence and virtue, and stood 
convicted of the attempt. The judge in his charge 
tells the jury if they believe your testimony, etc., 
indicating that there is even a judicial doubt of your 
veracity ; and you go home to your wife and family, 
neighbors and acquaintances, a suspected man — all be- 
cause of your accidental presence on an unfortunate 
occasion ! " 



170 



CHAPTER X 

CROSS-EXAMINATION TO CREDIT, AND ITS ABUSES 

The preceding chapters have been devoted to the 
legitimate uses of cross-examination — the development 
of truth and exposure of fraud. 

Cross-examination as to credit has also its legitimate 
use to accomplish the same end; but this powerful 
weapon for good has almost equal possibilities for evil. 
It is proposed in the present chapter to demonstrate 
that cross-examination as to credit should be exercised 
with great care and caution, and also to discuss some 
of the abuses of cross-examination by attorneys, under 
the guise and plea of cross-examination as to credit. 

Questions which throw no light upon the real issues 
in the case, nor upon the integrity or credit of the 
witness under examination, but which expose misdeeds, 
perhaps long since repented of and lived down, are 
often put for the sole purpose of causing humiliation and 
disgrace. Such inquiries into private life, private affairs, 
or domestic infelicities, perhaps involving innocent per- 
sons who have nothing to do with the particular litiga- 
tion and who have no opportunity for explanation nor 
means of redress, form no legitimate part of the cross- 

171 



THE ART OF CROSS-EXAMINATION 

examiner's art. The lawyer who allows himself to 
become the mouthpiece of the spite or revenge of his 
client may inflict untold suffering and unwarranted tor- 
ture. Such questions may be within the legal rights of 
counsel in certain instances, but the lawyer who allows 
himself to be led astray by his zeal or by the solicitations 
of his client, at his elbow, ready to make any sacrifice to 
humiliate his adversary, thereby debauches his profession 
and surrenders his self-respect, for which an occasional 
verdict, won from an impressionable jury by such 
methods, is a poor recompense. 

To warrant an investigation into matters irrelevant to 
the main issues in the case, and calculated to disgrace 
the witness or prejudice him in the eyes of the jury, they 
must at least be such as tend to impeach his general 
moral character and his credibility as a witness. There 
can be no sanction for questions that tend simply to 
degrade the witness personally, and which can have no 
possible bearing upon his veracity. 

In all that has preceded we have gone upon the pre- 
sumption that the cross-examiner's art would be used to 
further his client's cause by all fair and legitimate means, 
not by misrepresentation, insinuation, or by knowingly 
putting a witness in a false light before a jury. These 
methods doubtless succeed at times, but he who practises 
them acquires the reputation, with astounding rapidity, 
of being " smart," and finds himself discredited not only 
with the court, but in some almost unaccountable way, 

172 



CROSS-EXAMINATION TO CREDIT 

with the very juries before whom he appears. Let him 
once get the reputation of being " unfair " among the 
habitues of the court-house, and his usefulness to cHents 
as a trial lawyer is gone forever. Honesty is the best 
policy quite as much with the advocate as in any of the 
walks of life. 

Counsel may have in his possession material for injuring 
the witness, but the propriety of using it often becomes 
a serious question even in cases where its use is otherwise 
perfectly legitimate. An outrage to the feelings of a 
witness may be quickly resented by a jury, and sympathy 
take the place of disgust. Then, too, one has to reckon 
with the judge, and the indignation of a strong judge is 
not wisely provoked. Nothing could be more unprofes- 
sional than for counsel to ask questions which disgrace 
not only the witness, but a host of innocent persons, for 
the mere reason that the client wishes them to be 
asked. 

There could be no better example of the folly of yield- 
ing to a client's hatred or desire for revenge than the 
outcome of the famous case in which Mrs. Edwin For- 
rest was granted a divorce against her husband, the dis- 
tinguished tragedian, Mrs. Forrest, a lady of culture 
and refinement, demanded her divorce upon the ground 
of adultery, and her husband had made counter-charges 
against her. At the trial (1851) Charles O'Connor, 
counsel for Mrs. Forrest, called as his first witness the 
husband himself, and asked him concerning his infideli- 

173 



THE ART OF CROSS-EXAMINATION 

ties in connection with a certain actress. John Van 
Buren, who appeared for Edwin Forrest, objected to the 
question on the ground that it required his cHent to 
testify to matters that might incriminate him. The 
question was not allowed, and the husband left the wit- 
ness-stand. After calling a few unimportant witnesses, 
O'Connor rested the case for plaintiff without having 
elicited any tangible proof against the husband. Had 
a motion to take the case from the jury been made at 
this time, it would of necessity have been granted, and 
the wife's suit would have failed. It is said that when 
Mr. Van Buren was about to make such a motion and 
end the case, Mr. Forrest directed him to proceed with 
the testimony for the defence, and develop the nauseating 
evidence he had accumulated against his wife. Van 
Buren yielded to his client's wishes, and for days and 
weeks continued to call witness after witness to the 
disgusting details of Mrs. Forrest's alleged debauchery. 
The case attracted great public attention and was widely 
reported by the newspapers. The public, as so often 
happens, took the opposite view of the evidence from the 
one the husband had anticipated. Its very revolting 
character aroused universal sympathy on the wife's be- 
half. Mr. O'Connor soon found himself flooded with 
offers of evidence, anonymous and otherwise, against the 
husband, and when Van Buren finally closed his attack 
upon the wife, O'Connor was enabled, in rebuttal, to 
bring such an avalanche of convincing testimony against 

174 



CROSS-EXAMINATION TO CREDIT 

the defendant that the jury promptly exonerated Mrs. 
Forrest and orranted her the divorce. At the end of the 
first day's trial the case could have been decided in favor 
of the husband, had a simple motion to that effect been 
made ; but, yielding to his client's hatred of his wife, and 
after a hard-fought trial of thirty-three days, Mr. Van 
Buren found both himself and his client ignominiously 
defeated. This error of Mr. Van Buren's was widely 
commented on by the profession at the time. He had 
but lately resigned his office at Albany as attorney gen- 
eral, and up to the time of this trial had acquired no little 
prestige in his practice in the city of New York, which, 
however, he never seemed to regain after his fatal blunder 
in the Forrest divorce case.^ 

The abuse of cross-examination has been widely dis- 
cussed in England in recent years, partly in consequence 
of the cross-examination of a Mrs. Bravo, whose hus- 
band had died by poison. He had lived unhappily with 
her on account of the attentions of a certain physician. 
During the inquiry into the circumstances of her hus- 
band's death, the story of the wife's intrigue was made 
public through her cross-examination. Sir Charles Rus- 
sell, who was then regarded as standing at the head of 
the Bar, both in the extent of his business and in his 
success in court, and Sir Edward Clark, one of her 
Majesty's law officers, with a high reputation for ability 
in jury trials, were severely criticised as "forensic bul- 

1 " Extraordinary Cases," H. L. Clinton. 

175 



THE ART OF CROSS-EXAMINATION 

lies," and complained of as "lending the authority of 
their example to the abuse of cross-examination to credit 
which was quickly followed by barristers of inferior posi- 
tions, among whom the practice was spreading of assail- 
ing witnesses with what was not unfairly called a system 
of innuendoes, suggestions, and bullying from which 
sensitive persons recoil." And Mr. Charles Gill, one 
of the many imitators of Russell's domineering style, 
was criticised as " bettering the instructions of his elders." 

The complaint' against Russell was that by his prac- 
tices as displayed in the Osborne case — robbery of 
jewels — not only may a man's, or a woman's, whole 
past be laid bare to malignant comment and public 
curiosity, but there is no means afforded by the courts 
of showing how the facts really stood or of producing 
evidence to repel the damaging charges. 

Lord Bramwell, in an article published originally in 
Nineteenth Century for February, 1892, and republished 
in legal periodicals all over the world, strongly defends 
the methods of Sir Charles Russell and his imitators. 
Lord Bramwell claimed to speak after an experience of 
forty-seven years' practice at the Bar and on the bench, 
and long acquaintance with the legal profession. 

" A judge's sentence for a crime, however much re- 
pented of, is not the only punishment ; there is the con- 
sequent loss of character in addition, which should 
confront such a person whenever called to the witness- 
stand." " Women who carry on illicit intercourse, and 

176 



CROSS-EXAMINATION TO CREDIT 

whose husbands die of poison, must not complain at 
having the veil that ordinarily screens a woman's life 
from public inquiry rudely torn aside." " It is well for 
the sake of truth that there should be a wholesome dread 
of cross-examination." " It should not be understood to 
be a trivial matter, but rather looked upon as a trying 
ordeal." " None but the sore feel the probe." Such 
were some of the many arguments of the various up- 
holders of broad license in examinations to credit. 

Lord Chief Justice Cockburn took the opposite view 
of the question. " I deeply deplore that members of the 
Bar so frequently unnecessarily put questions affecting 
the private life of witnesses, which are only justifiable 
when they challenge the credibility of a witness. I 
have watched closely the administration of justice in 
France, Germany, Holland, Belgium, Italy, and a little 
in Spain, as well as in the United States, in Canada, 
and in Ireland, and in no place have I seen witnesses 
so badgered, browbeaten, and in every way so brutally 
maltreated as in England. The way in which we treat 
our witnesses is a national disgrace and a serious obstacle, 
instead of aiding the ends of justice. In England the 
most honorable and conscientious men loathe the wit- 
ness-box. Men and women of all ranks shrink with 
terror from subjecting themselves to the wanton 
insult and bullying misnamed cross-examination in our 
English courts. Watch the tremor that passes the 
frames of many persons as they enter the witness-box. 
M 177 



THE ART OF CROSS-EXAMINATION 

I remember to have seen so distinguished a man as the 
late Sir Benjamin Brodie shiver as he entered the wit- 
ness-box. I daresay his apprehension amounted to 
exquisite torture. Witnesses are just as necessary for 
the administration of justice as judges or jurymen, and 
are entitled to be treated with the same consideration, 
and their affairs and private lives ought to be held as 
sacred from the gaze of the public as those of the 
judges or the jurymen. I venture to think that it is 
the duty of a judge to allow no questions to be put to 
a witness, unless such as are clearly pertinent to the 
issue before the court, except where the credibility of 
the witness is deliberately challenged by counsel and 
that the credibility of a witness should not be wantonly 
challenged on slight grounds." ^ 

The propriety or impropriety of questions to credit is 
of course largely addressed to the discretion of the court. 
Such questions are generally held to be fair when, if the 
imputation they convey be true, the opinion of the court 
would be seriously affected as to the credibility of the 
witness on the matter to which he testifies ; they are 
unfair when the imputation refers to matters so remote 
in time, or of such character that its truth would not 
affect the opinion of the court; or if there be a great 
disproportion between the importance of the imputa- 
tion and the importance of the witness's evidence.^ 

A judge, however, to whose discretion such questions 

1 " Irish Law Times," 1874. ^ Sir James Stephen's Evidence Act. 

178 



CROSS-EXAMINATION TO CREDIT 

are addressed in the first instance, can have but an imper- 
fect knowledge of either side of the case before him. He 
cannot always be sure, without hearing all the facts, 
whether the questions asked would or would not tend 
to develop the truth rather than simply degrade the 
witness. Then, again, the mischief is often done by the 
mere asking of the question, even if the judge directs 
the witness not to answer. The insinuation has been 
made publicly — the dirt has been thrown. The dis- 
cretion must therefore after all be largely left to the 
lawyer himself. He is bound in honor, and out of respect 
to his profession, to consider whether the question ought 
in conscience to be asked — whether in his own honest 
judgment it renders the witness unworthy of belief under 
oath — before he allows himself to ask it. It is much 
safer, for example, to proceed upon the principle that the 
relations between the sexes has no bearing whatever 
upon the probability of the witness telling the truth, 
unless in the extreme case of an abandoned woman. 

In criminal prosecutions the district attorney is 
usually regarded by the jury much in the light of a 
judicial officer and, as such, unprejudiced and impartial. 
Any slur or suggestion adverse to a prisoner's witness 
coming from this source, therefore, has an added power 
for evil, and is calculated to do injustice to the defend- 
ant. There have been many flagrant abuses of this 
character in the criminal courts of our own city. " Is 
it not a fact that you were not there at all ? " " Has all 

179 



THE ART OF CROSS-EXAMINATION 

this been written out for you ? " " Is it not a fact that 
you and your husband have concocted this whole 
story ? " " You have been a witness for your husband 
in every lawsuit he has had, have you not ? " — were all 
questions that were recently criticised by the court, on 
appeal, as "innuendo," and calculated to prejudice the 
defendant — by the Michigan Supreme Court in the 
People vs. Cahoon — and held sufficient, in connection 
with other similar errors, to set the conviction aside. 

Assuming that the material with which you propose 
to assail the credibility of a witness fully justifies the 
attack, the question then arises. How to use this material 
to the best advantage? The sympathies of juries are 
keen toward those obliged to confess their crimes on the 
witness-stand. The same matters may be handled to 
the advantage or positive disadvantage of the cross- 
examiner. If you hold in your possession the evidence 
of the witness's conviction, for example, but allow him 
to understand that you know his history, he will surely 
get the better of you. Conceal it from him, and he 
will likely try to conceal it from you, or lie about it 
if necessary. " I don't suppose you have ever been in 
trouble, have you ? " will bring a quick reply, " What 
trouble ? " — " Oh, I can't refer to any particular trouble. 
I mean generally, have you ever been in jail ? " The 
witness will believe you know nothing about him and 
deny it, or if he has been many times convicted, will 
admit some small offence and attempt to conceal every- 

1 80 



CROSS-EXAMINATION TO CREDIT 

thing but what he suspects you know already about him. 
This very attempt to deceive, if exposed, will destroy 
him with the jury far more effectually than the knowl- 
edge of the offences he has committed. On the other 
hand, suppose you taunt him with his crime in the first 
instance ; ten to one he will admit his wrong-doing in 
such a way as to arouse toward himself the sympathy 
of the jury and their resentment toward the lawyer 
who was unchristian enough to uncover to public view 
offences long since forgotten. 

Chief Baron Pollock once presided at a case where 
a witness was asked about a conviction years gone by, 
though his (the witness's) honesty was not doubted. The 
baron burst into tears at the answer of the witness. 

In the Bellevue Hospital case (the details of which are 
fully described in a subsequent chapter), and during the 
cross-examination of the witness Chambers, who was con- 
fined in the Pavilion for the Insane at the time, the writer 
was imprudent enough to ask the witness to explain to 
the jury how he came to be confined on Ward's Island, 
only to receive the pathetic reply : " I was sent there 
because I was insane. You see my wife was very ill with 
locomotor ataxia. She had been ill a year ; I was her only 
nurse. I tended her day and night. We loved each other 
dearly. I was greatly worried over her long illness and 
frightful suffering. The result was, I worried too deeply ; 
she had been very good to me. I overstrained myself, 
my mind gave way ; but I am better now, thank you." 

i8i 



CHAPTER XI 

SOME FAMOUS CROSS-EXAMINERS AND THEIR METHODS 

One of the best ways to acquire the art of cross* 
examination is to study the methods of the great cross- 
examiners who serve as models for the legal profession. 

Indeed, nearly every great cross-examiner attributes 
his success to the fact of having had the opportunity 
to study the art of some great advocate in actual 
practice. 

In view of the fact also that a keen interest is always 
taken in the personality and life sketches of great cross- 
examiners, it has seemed fitting to introduce some brief 
sketches of great cross-examiners, and to give some illus- 
trations of their methods. 

Sir Charles Russell, Lord Russell of Killowen, who 
died in February, 1901, while he was Lord Chief Justice 
of England, was altogether the most successful cross- 
examiner of modern times. Lord Coleridge said of him 
while he was still practising at the bar, and on one 
side or the other in nearly every important case tried, 
" Russell is the biggest advocate of the century." 

It has been said that his success in cross-examination, 
like his success in everything, was due to his force of 

182 



SOME FAMOUS CROSS-EXAMINERS 

character. It was his striking personality, added to his 
skill and adroitness, which seemed to give him his over 
whelming influence over the witnesses whom he cross- 
examined. Russell is said to have had a wonderful 
faculty for using the brain and knowledge of other men. 
Others might possess a knowledge of the subject far in 
excess of Russell, but he had the reputation of being 
able to make that knowledge valuable and use it in his 
examination of a witness in a way altogether unexpected 
and unique. 

Unlike Rufus Choate, " The Ruler of the Twelve," 
and by far the greatest advocate of the century on this 
side of the water, Russell read but little. He belonged 
to the category of famous men who " neither found nor 
pretended to find any real solace in books." With 
Choate, his library of some eight thousand volumes was 
his home, and " his authors were the loves of his life." 
Choate used to read at his meals and while walking in 
the streets, for books were his only pastime. Neither 
was Russell a great orator, while Choate was ranked as 
" the first orator of his time in any quarter of the globe 
where the English language was spoken, or who was 
ever seen standing before a jury panel." 

Both Russell and Choate were consummate actors; 
they were both men of genius in their advocacy. Each 
knew the precise points upon which to seize; each 
watched every turn of the jury, knew at a glance what 
was telling with them, knew how to use to the best 

183 



THE ART OF CROSS-EXAMINATION 

advantage every accident that might arise in the prog- 
ress of the case. 

" One day a junior was taking a note in the orthodox 
fashion. Russell was taking no note, but he was thor- 
oughly on the alert, glancing about the court, sometimes 
at the judge, sometimes at the jury, sometimes at the 
witness or the counsel on the other side. Suddenly he 
turned to the junior and said, ' What are you doing } ' 
' Taking a note,' was the answer. ' What the devil do 
you mean by saying you are taking a note ? Why don't 
you watch the case ? ' he burst out. //e had been 
' watching ' the case. Something had happened to make 
a change of front necessary, and he wheeled his col- 
leagues around almost before they had time to grasp the 
new situation." ^ 

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. 
* Russell,' said a member of the Northern Circuit, ' pro- 

1 " Life of Lord Russell," Barry O'Brien. 
184 



SOME FAMOUS CROSS-EXAMINERS 

duced the same effect on a witness that a cobra produces 
on a rabbit.' In a certain case he appeared on the 
wrong side. Thirty-two witnesses were called, thirty-one 
on the wrong side, and one on the right side. Not one 
of the thirty-one was broken down in cross-examination ; 
but the one on the right side was utterly annihilated by 
Russell. 

" ' How is Russell getting on ? ' a friend asked one of 
the judges of the Parnell Commission during the days 
of Pigott's cross-examination. ' Master Charlie is bowl- 
ing very straight,' was the answer. ' Master Charlie ' 
always bowled ' very straight,' and the man at the wicket 
generally came quickly to grief. I have myself seen 
him approach a witness with great gentleness — the 
gentleness of a lion reconnoitring his prey. I have also 
seen him fly at a witness with the fierceness of a tiger. 
But, gentle or fierce, he must have always looked a very 
ugly object to the man who had gone into the box to 
lie." 

Rufus Choate had little of Russell's natural force 
with which to command his witnesses ; his effort was to 
magnetize, he was called " the wizard of the court room." 
He employed an entirely different method in his cross- 
examinations. He never assaulted a witness as if de- 
termined to browbeat him. " Commenting once on the 
cross-examination of a certain eminent counsellor at the 
Boston Bar with decided disapprobation, Choate said, 
* This man goes at a witness in such a way that he in- 

185 



THE ART OF CROSS-EXAMINATION 

evitably gets the jury all on the side of the witness. I 
do not,' he added, ' think that is a good plan.' His own 
plan was far more wary, intelligent, and circumspect. 
He had a profound knowledge of human nature, of the 
springs of human action, of the thoughts of human 
hearts. To get at these and make them patent to the 
jury, he would ask only a few telling questions — a very 
few questions, but generally every one of them was fired 
point-blank, and hit the mark. His motto was : ' Never 
cross-examine any more than is absolutely necessary. 
If you don't break your witness, he breaks you.' He 
treated every man who appeared like a fair and honest 
person on the stand, as if upon the presumption that he 
was a gentleman; and if a man appeared badly, he 
demolished him, but with the air of a surgeon perform- 
ing a disagreeable amputation — as if he was profoundly 
sorry for the necessity. Few men, good or bad, ever 
cherished any resentment against Choate for his cross- 
examination of them. His whole style of address to the 
occupants of the witness-stand was soothing, kind, and 
reassuring. When he came down heavily to crush a 
witness, it was with a calm, resolute decision, but no 
asperity — nothing curt, nothing tart."^ 

Choate's idea of the proper length of an address to 
a jury was that " a speaker makes his impression, if he 
ever makes it, in the first hour^ sometimes in the first 
fifteen minutes ; for if he has a proper and firm grasp 

^ " Reminiscences of Rufus Choate," Parker. 

i86 



SOME FAMOUS CROSS-EXAMINERS 

of his case, he then puts forth the outHne of his grounds 
of argument. He plays the overture, which hints at or 
announces all the airs of the coming opera. All the 
rest is mere filling up : answering objections, giving one 
juryman little arguments with which to answer the ob- 
jections of his fellows, etc. Indeed, this may be taken 
as a fixed rule, that the popular mind can never be vig- 
orously addressed, deeply moved, and stirred and fixed 
more than one hour in any single address." 

What Choate was to America, and Erskine, and later 
Russell, to England, John Philpot Curran was to Ireland. 
He ranked as a jury lawyer next to Erskine. The son 
of a peasant, he became Master of Rolls for Ireland in 
1806. He had a small, slim body, a stuttering, harsh, 
shrill voice, originally of such a diffident nature that in 
the midst of his first case he became speechless and 
dropped his brief to the floor, and yet by perseverance 
and experience he became one of the most eloquent and 
powerful forensic advocates of the world. As a cross- 
examiner it was said of Curran that " he could unravel 
the most ingenious web which perjury ever spun, he 
could seize on every fault and inconsistency, and build 
on them a denunciation terrible in its earnestness." ^ 

It was said of Scarlett, Lord Abinger, that he won 
his cases because there were twelve Sir James Scarletts 
in the jury-box. He became one of the leading jury 
lawyers of his time, so far as winning verdicts was con- 

* "Life Sketches of Eminent Lawyers," Gilbert J. Clark. 
187 



THE ART OF CROSS-EXAMINATION 

cerned. Scarlett used to wheedle the juries over the 
weak places in his case. Choate would rush them right 
over with that enthusiasm which he put into everything, 
" with fire in his eye and fury on his tongue." Scarlett 
would level himself right down to each juryman, while 
he flattered and won them. In his cross-examinations 
*' he would take those he had to examine, as it were by 
the hand, made them his friends, entered into familiar 
conversation with them, encouraged them to tell him 
what would best answer his purpose, and thus secured a 
victory without appearing to commence a conflict." 

A story is told about Scarlett by Justice Wightman who 
was leaving his court one day and found himself walking 
in a crowd alongside a countryman, whom he had seen, day 
by day, serving as a juiyman, and to whom he could not 
help speaking. Liking the look of the man, and finding 
that this was the first occasion on which he had been at 
the court, Judge Wightman asked him what he thought 
of the leading counsel. " Well," said the countryman, 
" that lawyer Brougham be a wonderful man, he can talk, 
he can, but I don't think nowt of Lawyer Scarlett." — 
"Indeed!" exclaimed the judge, "you surprise me, for 
you have given him all the verdicts." — " Oh, there's nowt 
in that," was the reply, " he be so lucky, you see, he be 
always on the right side." ^ 

Choate also had a way of getting himself " into the 
jury-box," and has been known to address a single jury- 

1 " Curiosities of Law and Lawyers." 
1 88 



SOME FAMOUS CROSS-EXAMINERS 

man, who he feared was against him, for an hour at a 
time. After he had piled up proof and persuasion all 
together, one of his favorite expressions was, " But this 
is only half my case, gentlemen, I go now to the main 
body of my proofs." 

Like Scarlett, Erskine was of medium height and 
slender, but he was handsome and magnetic, quick and 
nervous, " his motions resembled those of a blood horse 
' — as light, as limber, as much betokening strength and 
speed." He, too, lacked the advantage of a college edu- 
cation and was at first painfully unready of speech. In 
his maiden effort he would have abandoned his case, 
had he not felt, as he said, that his children were tug- 
ging at his gown. " In later years," Choate once said of 
him, " he spoke the best English ever spoken by an ad- 
vocate." Once, when the presiding judge threatened to 
commit him for contempt, he replied, " Your Lordship 
may proceed in what manner you think fit; I know my 
duty as well as your Lordship knows yours." His simple 
grace of diction, quiet and natural passion, was in marked 
contrast to Rufus Choate, whose delivery has been de- 
scribed as " a musical fiow of rhythm and cadence, more 
like a long, rising, and swelling song than a talk or an 
argument." To one of his clients who was dissatisfied 
with Erskine's efforts in his behalf, and who had written 
his counsellor on a slip of paper, " I'll be hanged if I 
don't plead my own cause," Erskine quietly replied, 
"You'll be hanged if you do." Erskine boasted that 

189 



THE ART OF CROSS-EXAMINATION 

in twenty years he had never been kept a day from court 
by ill health. And it is said of Curran that he has been 
known to rise before a jury, after a session of sixteen 
hours with only twenty minutes' intermission, and make 
one of the most memorable arguments of his life. 

Among the more modern advocates of the English 
Bar, Sir Henry Hawkins stands out conspicuously. He 
is reputed to have taken more money away with him 
from the Bar than any man of his generation. His lead- 
ing characteristic when at the Bar, was his marvellous 
skill in cross-examination. He was associated with Lord 
Coleridge in the first Tichborne trial, and in his cross- 
examination of the witnesses, Baignet and Carter, he 
made his reputation as " the foremost cross-examiner in 
the world." ^ Sir Richard Webster was another great 
cross-examiner. He is said to have received $100,000 for 
his services in the trial before the Parnell Special Commis- 
sion, in which he was opposed to Sir Charles Russell. 

Rufus Choate said of Daniel Webster, that he con- 
sidered him the grandest lawyer in the world. And on 
his death-bed Webster called Choate the most brilliant 
man in America. Parker relates an episode character- 
istic of the clashing of swords between these two idols 
of the American Bar. "We heard Webster once, in 
a sentence and a look, crush an hour's argument of 
Choate's curious workmanship ; it was most intellectu- 
ally wire-drawn and hair-splitting, with Grecian sophis- 

^ " Life Sketches of Eminent Lawyers," Clark. 
190 



SOME FAMOUS CROSS-EXAMINERS 

try, and a subtlety the Leontine Gorgias might have 
envied. It was about two car-wheels, which to common 
eyes looked as like as two eggs ; but Mr. Choate, by a 
fine line of argument between tweedle-dum and tweedle- 
dee, and a discourse on ' the fixation of points ' so deep 
and fine as to lose itself in obscurity, showed the jury 
there was a heaven-wide difference between them. 
' But,' said Mr. Webster, and his great eyes opened wide 
and black, as he stared at the big twin wheels before 
him, 'gentlemen of the jury, there they are — look at 
'em ; ' and as he pronounced this answer, in tones of vast 
volume, the distorted wheels seemed to shrink back 
again into their original similarity, and the long argu- 
ment on the ' fixation of points ' died a natural death. 
It was an example of the ascendency of mere character 
over mere hitellectuality ; but so much greater, never- 
theless, the intellectuality r ^ 

Jeremiah Mason was quite on a par with either Choate 
or Webster before a jury. His style was conversational 
and plain. He was no orator. He would go close up 
to the jury-box, and in the plainest possible logic force 
conviction upon his hearers. Webster said he " owed 
his own success to the close attention he was compelled 
to pay for nine successive years, day by day, to Mason's 
efforts at the same Bar." As a cross-examiner he had no 
peer at the New England Bar. 

In the history of our own New York Bar there have 

^ *' Reminiscences of Rufus Choate," Parker. 
191 



THE ART OF CROSS-EXAMINATION 

been, probably, but few equals of Judge William Fuller. 
ton as a cross-examiner. He was famous for his calmness 
and mildness of manner, his rapidly repeated questions ; 
his sallies of wit interwoven with his questions, and an 
ingenuity of method quite his own. 

Fullerton's cross-examinations in the celebrated Tilton 
vs. Henry Ward Beecher case gave him an international 
reputation, and were considered the best ever heard in 
this country. And yet these very examinations, labori- 
ous and brilliant, were singularly unproductive of results, 
owing probably to the unusual intelligence and shrewd- 
ness of the witnesses themselves. The trial as a whole 
was by far the most celebrated of its kind the New York 
courts have ever witnessed. One of the most eminent 
of Christian preachers was charged with using the per- 
suasive powers of his eloquence, strengthened by his 
religious influence, to alienate the affections and destroy 
the probity of a member of his church — a devout and 
theretofore pure-souled woman, the wife of a long-loved 
friend. He was charged with continuing the guilty rela- 
tion during the period of a year and a half, and of cloak- 
ing the offence to his own conscience and to hers under 
specious words of piety; of invoking first divine blessing 
on it, and then divine guidance out of it ; and finally of 
adding perjury to seduction in order to escape the con- 
sequences. His accusers, moreover, Mr. Tilton and Mr. 
Moulton, were persons of public reputation and honorable 
station in life. 

192 



SOME FAMOUS CROSS-EXAMINERS 

The length and complexity of Fullerton's cross-exami- 
nations preclude any minute mention of them here. 
Once when he found fault with Mr. Beecher for not 
answering his questions more freely and directly, the 
reply was frankly made, " / am afraid of you ! " 

While cross-examining Beecher about the celebrated 
" ragged letter," FuUerton asked why he had not made 
an explanation to the church, if he was innocent. Beecher 
answered that he was keeping his part of the compact of 
silence, and added that he did not believe the others were 
keeping theirs. There was audible laughter throughout 
the court room at this remark, and Judge Neilson ordered 
the court officer to remove from the court room any per- 
son found offending — " Except the counsel," spoke up 
Mr. Fullerton. Later the cross-examiner exclaimed im- 
patiently to Mr. Beecher that he was bound to find out 
all about these things before he got through, to which 
Beecher retorted, " I don't think you are succeeding very 
well." 

Mr. Fullerton (in a voice like thunder). " Why did you 
not rise up and deny the charge } " 

Mr. Beecher (putting into his voice all that marvellous 
magnetic force, which so distinguished him from other 
men of his time). " Mr. Fullerton, that is not my habit 
of mind, nor my manner of dealing with men and 
things." 

Mr. Fullerton. " So I observe. You say that Theo- 
dore Tilton's charge of intimacy with his wife, and the 
N 193 



THE ART OF CROSS-EXAMINATION 

charges made by your church and by the committee of 
your church, made no impression on you ? " 

Mr. Beecher (shortly). " Not the sHghtest" 

At this juncture Mr. Thomas G. Sherman, Beecher's 
personal counsel, jumped to his client's aid, and remarked 
that it was a singular coincidence that when counsel had 
not the record before him, he never quoted correctly. 

Mr. Fullerton (addressing the court impressively). 
" When Mr. Sherman is not impertinent, he is nothing 
in this case." 

Judge Neilson (to the rescue). " Probably counsel 
thought — " 

Mr. Fullerton (interrupting). " What Mr. Sherman 
thinks, your Honor, cannot possibly be of sufficient 
importance to take up the time either of the court or 
opposing counsel." 

" Are you in the habit of having your sermons pub- 
lished 1 " continued Mr. Fullerton. Mr. Beecher ac- 
knowledged that he was, and also that he had preached 
a sermon on " The Nobility of Confession." 

Mr. Sherman (sarcastically). " I hope Mr. Fullerton 
is not going to preach 2is a sermon." 

Mr. Fullerton. " I would do so if I thought I could 
convert brother Sherman." 

Mr. Beecher (quietly). " I will be happy to give you 
the use of my pulpit." 

Mr. Fullerton (laughing). " Brother Sherman is the 
only audience I shall want." 

194 



SOME FAMOUS CROSS-EXAMINERS 

Mr. Beecher (sarcastically). " Perhaps he is the only 
audience you can get." 

Mr. Ftillerton. " If I succeed In converting brother 
Sherman, I will consider my work as a Christian minister 
complete." 

Mr, Fullerton then read a passage from the sermon, 
the effect of which was that if a person commits a great 
sin, and the exposure of it would cause misery, such a 
person would not be justified in confessing it, merely to 
relieve his own conscience. Mr. Beecher admitted that 
he still considered that " sound doctrine." 

At this point Mr. Fullerton turned to the court, and 
pointing to the clock, said, " Nothing comes after the 
sermon, I believe, but the benediction." His Honor 
took the hint, and the proceedings adjourned.^ 

In this same trial Hon. William M. Evarts, as leading 
counsel for Mr. Beecher, heightened his already inter- 
national reputation as an advocate. It was Mr. Evarts's 
versatility in the Beecher case that occasioned so much 
comment. Whether he was examining in chief or on 
cross, in the discussion of points of evidence, or in the 
summing up, he displayed equally his masterly talents. 
His cross-examination of Theodore Tilton was a master- 
piece. His speeches in court were clear, calm, and logi- 
cal. Mr. Evarts was not only a great lawyer, but an 
orator and statesman of the highest distinction. He has 

^ Extracts from the daily press accounts of the proceedings of one of the 
thirty days of the trial, as reported in " Modern Jury Trials," Donovan. 



THE ART OF CROSS-EXAMINATION 

been called "the Prince of the American Bar." He 
was a gentleman of high scholarship and fine literary 
tastes. His manner in the trial of a case has been 
described by some one as "all head, nose, voice, and 
forefinger." He was five feet seven inches tall, thin and 
slender, " with a face like parchment." 

Mr. Joseph H. Choate once told me he considered 
that he owed his own success in court to the nine years 
during which he acted as Mr. Evarts's junior in the trial 
of cases. No one but Mr. Choate himself would have 
said this. His transcendent genius as an advocate could 
not have been acquired from any tutelage under Mr. 
Evarts. When Mr. Choate accepted his appointment as 
Ambassador to the Court of St. James, he retired from 
the practice of the law; and it is therefore permissible to 
comment upon his marvellous talents as a jury lawyer. 
He was not only easily the leading trial lawyer of the 
New York Bar, but was by many thought to be the 
representative lawyer of the American Bar. Surely no 
man of his time was more successful in winning juries. 
His career was one uninterrupted success. Not that he 
shone especially in any particular one of the duties of the 
trial lawyer, but he was preeminent in the quality of his 
humor and keenness of satire. His whole conduct of a 
case, his treatment of witnesses, of the court, of opposing 
counsel, and especially of the jury, were so irresistibly 
fascinating and winning that he carried everything before 
him. One would emerge from a three weeks' contest 

196 



SOME FAMOUS CROSS-EXAMINERS 

with Choate in a state almost of mental exhilaration, 
despite the jury's verdict. 

It was not so with the late Edward C. James ; a contest 
with him meant great mental and physical fatigue for 
his opponent. James was ponderous and indefatigable. 
His cross-examinations were labored in the extreme. 
His manner as an examiner was dignified and forceful, 
his mind always alert and centred on the subject before 
him; but he had none of Mr. Choate 's fascination or 
brilliancy. He was dogged, determined, heavy. He 
would pound at you incessantly, but seldom reached the 
mark. He literally wore out his opponent, and could 
never realize that he was on the wrong side of a case 
until the foreman of the jury told him so. Even then 
he would want the jury polled to see if there was not 
some mistake. James never smiled except in triumph 
and when his opponent frowned. When Mr. Choate 
smiled, you couldn't help smiling with him. During the 
last ten years of his life James was found on one side or 
the other of most of the important cases that were tried. 
He owed his success to his industrious and indefatigable 
qualities as a fighter; not, I think, to his art. 

James T. Brady was called " the Curran of the New 
York Bar." His success was almost entirely due to his 
courtesy and the marvellous skill of his cross-examina- 
tions. He had a serene, captivating manner in court, 
and was one of the foremost orators of his time. He 
has the proud record of having defended fifty men on 

197 



THE ART OF CROSS-EXAMINATION 

trial for their lives, and of saving every one of them from 
the gallows. 

On the other hand, William A. Beech, " the Hamlet 
of the American Bar," was a poor cross-examiner. He 
treated all his witnesses alike. He was methodical, but 
of a domineering manner. He was slow to attune him- 
self to an unexpected turn in a case he might be con- 
ducting. He lost many cases and was not fitted to 
conduct a desperate one. It was as a court orator that 
he was preeminent. His speech in the Beecher case 
alone would have made him a reputation as a consum- 
mate orator. His vocabulary was surprisingly rich and 
his voice wonderfully winning. 

It is said of James W. Gerard, the elder, that "he ob- 
tained the greatest number of verdicts against evidence 
of any one who ever practised at the New York Bar. He 
was full of expedients and possessed extraordinary tact. 
In his profound knowledge of human nature and his 
ready adaptation, in the conduct of trials, to the pecu- 
liarities, caprices, and whims of the different juries before 
whom he appeared he was almost without a rival. . . . 
Any one who witnessed the telling hits made by Mr. 
Gerard on cross-examination, and the sensational inci- 
dents sprung by him upon his opponents, the court, and 
the jury, would have thought that he acted upon the 
inspiration of the moment — that all he did and all he 
said was impromptu. In fact, Mr. Gerard made thorough 
preparation for trial. Generally his hits in cross-exami- 

198 



SOME FAMOUS CROSS-EXAMINERS 

nation were the result of previous preparation. He 
made briefs for cross-examination. To a large extent his 
flashes of wit and his extraordinary and grotesque humor 
were well pondered over and studied up beforehand." ^ 

Justice Miller said of Roscoe Conkling that " he was 
one of the greatest men intellectually of his time." He 
was more than fifty years of age when he abandoned his 
arduous public service at Washington, and opened an 
office in New York City. During his six years at the 
New York Bar, such was his success, that he is reputed 
to have accumulated, for a lawyer, a very large fortune. 
He constituted himself a barrister and adopted the plan 
of acting only as counsel. He was fluent and eloquent 
of speech, most thorough in the preparation of his cases, 
and an accomplished cross-examiner. Despite his public 
career, he said of himself, *' My proper place is to be be- 
fore twelve men in the box." Conkling used to study 
for his cross-examinations, in important cases, with the 
most painstaking minuteness. In the trial of the Rev. 
Henry Burge for murder, Conkling saw that the case 
was likely to turn upon the cross-examination of Dr. 
Swinburne, who had performed the autopsy. The 
charge of the prosecution was that Mrs. Burge had 
been strangled by her husband, who had then cut her 
throat. In order to disprove this on cross-examination, 
Mr. Conkling procured a body for dissection and had 
dissected, in his presence, the parts of the body that he 

^ " Extraordinary Cases," Henry Lauran Clinton. 



THE ART OF CROSS-EXAMINATION 

wished to study. As the result of Dr. Swinburne's cross- 
examination at the trial, the presiding judge felt com- 
pelled to declare the evidence so entirely untrustworthy 
that he would decline to submit it to the jury and directed 
that the prisoner be set at liberty. 

This studious preparation for cross-examination was one 
of the secrets of the success of Benjamin F. Butler. He 
was once known to have spent days in examining all parts 
of a steam-engine, and even learning to drive one himself, 
in order to cross-examine some witnesses in an impor- 
tant case in which he had been retained. At another 
time Butler spent a week in the repair shop of a rail- 
road, part of the time with coat off and hammer in hand, 
ascertaining the capabilities of iron to resist pressure — 
a point on which his case turned. To use his own lan- 
guage : " A lawyer who sits in his office and prepares his 
cases only by the statements of those who are brought 
to him, will be very likely to be beaten. A lawyer in 
full practice, who carefully prepares his cases, must study 
almost every variety of business and many of the 
sciences." A pleasant humor and a lively wit, coupled 
with wonderful thoroughness and acuteness, were But- 
ler's leading characteristics. He was not a great lawyer, 
nor even a great advocate like Rufus Choate, and yet 
he would frequently defeat Choate. His cross-examina- 
tion was his chief weapon. Here he was fertile in re- 
source and stratagem to a degree attained by few others. 
Choate had mastered all the little tricks of the trial 

200 



SOME FAMOUS CROSS-EXAMINERS 

lawyer, but he attained also to the grander thoughts 
and the logical powers of the really great advocate. 
Butler's success depended upon zeal, combined with 
shrewdness and not overconscientious trickery. 

In his autobiography, Butler gives several examples 
of what he was pleased to call his legerdemain, and to 
believe were illustrations of his skill as a cross-examiner. 
They are quoted from " Butler's Book," but are not re- 
printed as illustrations of the subtler forms of cross- 
examination, but rather as indicative of the tricks to 
which Butler owed much of his success before country 
juries. 

" When I was quite a young man I was called upon to 
defend a man for homicide. He and his associate had 
been engaged in a quarrel which proceeded to blows 
and at last to stones. My client, with a sharp stone, 
struck the deceased in the head on that part usually 
called the temple. The man went and sat down on the 
curbstone, the blood streaming from his face, and shortly 
afterward fell over dead. 

" The theory of the government was that he died from 
the wound in the temporal artery. My theory was that 
the man died of apoplexy, and that if he had bled more 
from the temporal artery, he might have been saved — 
a wide enough difference in the theories of the cause of 
death. 

" Of course to be enabled to carry out my proposition 
I must know all about the temporal artery, — its location, 

20 1 



THE ART OF CROSS-EXAMINATION 

its functions, its capabilities to allow the blood to pass 
through it, and in how short a time a man could bleed 
to death through the temporal artery ; also, how far ex- 
citement in a body stirred almost to frenzy in an embit- 
tered conflict, and largely under the influence of liquor 
on a hot day, would tend to produce apoplexy. I was 
relieved on these two points in my subject, but relied 
wholly upon the testimony of a surgeon that the man 
bled to death from the cut on the temporal artery from 
a stone in the hand of my client. That surgeon was 
one of those whom we sometimes see on the stand, who 
think that what they don't know on the subject of their 
profession is not worth knowing. He testified positively 
and distinctly that there was and could be no other cause 
for death except the bleeding from the temporal artery, 
and he described the action of the bleeding and the 
amount of blood discharged. 

" Upon all these questions I had thoroughly prepared 
myself. 

" Mr. Butler. * Doctor, you have talked a great deal 
about the temporal artery ; now will you please describe 
it and its functions } I suppose the temporal artery is so 
called because it supplies the flesh on the outside of the 
skull, especially that part we call the temples, with blood.' 

" Witness. ' Yes ; that is so.' 

" Mr. Butler. * Very well. Where does the temporal 
artery take its rise in the system } Is it at the heart } ' 

" Witness. * No, the aorta is the only artery leaving the 

202 



SOME FAMOUS CROSS-EXAMINERS 

heart which carries blood toward the head. Branches 
from it carry the blood up through the opening into the 
skull at the neck, and the temporal artery branches from 
one of these.' 

" Mr. Butler. ' Doctor, where does it branch off from 
it } on the inside or the outside of the skull } * 

*' Witness. ' On the inside.' 

" Mr. Butler. ' Does it have anything to do inside with 
supplying the brain 1 ' 

" Wit7iess. ' No.' 

" Mr. Butler. ' Well, doctor, how does it get outside to 
supply the head and temples } ' 

" Witness. ' Oh, it passes out through its appropriate 
opening in the skull.' 

" Mr. Butler. ' Is that through the eyes ? ' 

" Witness. ' No.' 

" Mr. Butler. ' The ears 1 ' 

•' Witness. ' No.' 

" Mr. Butler. ' It would be inconvenient to go through 
the mouth, would it not, doctor } ' 

" Here I produced from my green bag a skull. ' I 
cannot find any opening on this skull which I think is 
appropriate to the temporal artery. Will you please 
point out the appropriate opening through which the 
temporal artery passes from the inside to the outside of 
the skull ? ' 

" He was utterly unable so to do. 

" Mr. Butler. ' Doctor, I don't think I will trouble you 

203 



THE ART OF CROSS-EXAMINATION 

any further; you can step down.' He did so, and my 
client's life was saved on that point. 

" The temporal artery doesn't go inside the skull at all. 

" I had a young client who was on a railroad car when 
it was derailed by a broken switch. The car ran at con- 
siderable speed over the cross-ties for some distance, and 
my client was thrown up and down with great violence 
on his seat. After the accident, when he recovered from 
the bruising, it was found that his nervous system had 
been wholly shattered, and that he could not control his 
nerves in the slightest degree by any act of his will. 
When the case came to trial, the production of the pin 
by which the position of the switch was controlled, two- 
thirds worn away and broken off, settled the liability of 
the road for any damages that occurred from that cause, 
and the case resolved itself into a question of the amount 
of damages only. My claim was that my client's condi- 
tion was an incurable one, arising from the injury to the 
spinal cord. The claim put forward on behalf of the 
railroad was that it was simply nervousness, which 
probably would disappear in a short time. The sur- 
geon who appeared for the road claimed the privilege 
of examining my client personally before he should 
testify. I did not care to object to that, and the doctor 
who was my witness and the railroad surgeon went into 
the consultation room together and had a full examina- 
tion in which I took no part, having looked into that 
matter before. 

204 



SOME FAMOUS CROSS-EXAMINERS 

" After some substantially immaterial matters on the 
part of the defence, the surgeon was called and was quali- 
fied as a witness. He testified that he was a man of 
great position in his profession. Of course in that I 
was not interested, for I knew he could qualify himself 
as an expert. In his direct examination he spent a good 
deal of the time in giving a very learned and somewhat 
technical description of the condition of my client. He 
admitted that my client's nervous system was very much 
shattered, but he also stated that it would probably be 
only temporary. Of all this I took little notice ; for, to 
tell the truth, I had been up quite late the night before 
and in the warm court room felt a little sleepy. But the 
counsel for the road put this question to him : — 

" ' Doctor, to what do you attribute this condition of 
the plaintiff which you describe ? ' 

" ' Hysteria, sir ; he is hysterical.' 

" That waked me up. I said, ' Doctor, did I under- 
stand — I was not paying proper attention — to what 
did you attribute this nervous condition of my client } ' 

" ' Hysteria, sir.' 

" I subsided, and the examination went on until it 
came my turn to cross-examine. 

" Mr. Butler. ' Do I understand that you think this 
condition of my client wholly hysterical t ' 

*' Witness. ' Yes, sir ; undoubtedly.' 

^^ Mr. Butler. ' And therefore won't last long ? * 

" Witness. ' No, sir ; not likely to.' 

205 



THE ART OF CROSS-EXAMINATION 

" Mr. Butler. * Well, doctor, let us see ; is not the 
disease called hysteria and its effects hysterics; and 
isn't it true that hysteria, hysterics, hysterical, all come 
from the Greek word va-repa ? ' 

" Witness. ' It may be.' 

" Mr. Butler. ' Don't say it may, doctor ; isn't it ? 
Isn't an exact translation of the Greek word vcrrepa the 
English word " womb " ? ' 

" Witness. ' You are right, sir.' 

" Mr. Butler. ' Well, doctor, this morning when you 
examined this young man here,' pointing to my client, 
' did you find that he had a womb ? I was not aware of 
it before, but I will have him examined over again and see 
if I can find it. That is all, doctor ; you may step down.' " 

Robert Ingersoll took part in numerous noted law- 
suits in all parts of the country. But he was almost 
helpless in court without a competent junior. He was a 
born orator if ever there was one. Henry Ward Beecher 
regarded him as " the most brilliant speaker of the Eng- 
lish tongue in any land on the globe." He was not a pro- 
found lawyer, however, and hardly the equal of the most 
mediocre trial lawyer in the examination of witnesses. 
Of the art of cross-examining witnesses he knew prac- 
tically nothing. His definition of a lawyer, to use his 
own words, was " a sort of intellectual strumpet." " My 
ideal of a great lawyer," he once wrote, " is that great 
English attorney who accumulated a fortune of a million 
pounds, and left it all in his will to make a home for 

206 



SOME FAMOUS CROSS-EXAMINERS 

idiots, declaring that he wanted to give it back to the 
people from whom he took it." 

Judge Walter H. Sanborn relates a conversation he 
had with Judge Miller of the United States Court about 
Ingersoll. " Just after Colonel IngersoU had concluded 
an argument before Mr. Justice Miller, while on Circuit 
I came into the court and remarked to Judge Miller that 
I wished I had got there a little sooner, as I had never 
heard Colonel Ingersoll make a legal argument." — 
" Well," said Judge Miller, " you never will." ^ 

Ingersoll's genius lay in other directions. Who but 
Ingersoll could have written the following: — 

" A little while ago I stood by the grave of the old 
Napoleon — a magnificent tomb of gilt and gold, fit al- 
most for a dead deity, and gazed upon the sarcophagus 
of black marble, where rest at last the ashes of that rest- 
less man. I leaned over the balustrade, and thought 
about the career of the greatest soldier of the modern 
world. I saw him walking upon the banks of the Seine, 
contemplating suicide ; I saw him at Toulon ; I saw him 
putting down the mob in the streets of Paris ; I saw him 
at the head of the army in Italy ; I saw him crossing the 
bridge of Lodi, with the tricolor in his hand ; I saw him 
in Egypt, in the shadows of the Pyramids; I saw him 
conquer the Alps, and mingle the eagles of France with 
the eagles of the crags ; I saw him at Marengo, at Ulm, 
and at Austerlitz ; I saw him in Russia, where the infan- 

^ "Life Sketches of Eminent Lawyers," Gilbert J. Clark. 
207 



THE ART OF CROSS-EXAMINATION 

try of the snow and the cavalry of the wild blast scat- 
tered his legions like winter's withered leaves. I saw 
him at Leipsic, in defeat and disaster; driven by a mill- 
ion bayonets back upon Paris; clutched like a wild 
beast ; banished to Elba. I saw him escape and retake 
an empire by the force of his genius. I saw him upon 
the frightful field of Waterloo, where chance and fate 
combined to wreck the fortunes of their former king. 
And I saw him at St. Helena, with his hands crossed 
behind him, gazing out upon the sad and solemn sea. 
I thought of the orphans and widows he had made, of 
the tears that had been shed for his glory, and of the 
only woman who had ever loved him, pushed from his 
heart by the cold hand of ambition. And I said I would 
rather have been a French peasant, and worn wooden 
shoes ; I would rather have lived in a hut, with a vine 
growing over the door, and the grapes growing purple in 
the kisses of the autumn sun. I would rather have been 
that poor peasant, with my loving wife by my side, knit- 
ting as the day died out of the sky, with my children 
upon my knees, and their arms about me. I would 
rather have been that man, and gone down to the tongue- 
less silence of the dreamless dust, than to have been that 
imperial impersonation of force and murder, known as 
Napoleon the Great." 



208 



CHAPTER XII 

THE CROSS-EXAMINATION OF MISS MARTINEZ BY HON. 
JOSEPH H. CHOATE IN THE CELEBRATED BREACH OF 
PROMISE CASE, MARTINEZ V. DEL VALLE 

The modern method of studying any subject, or 
acquiring any art, is the inductive method. This is 
illustrated in our law schools, where to a large extent 
actual cases are studied in order to get at the principles 
of law instead of acquiring those principles solely through 
the a priori method of the study of text-books. 

As already indicated, this method is also the only 
way to become a master of the art of cross-examination. 
In addition to actual personal experience, however, it is 
important to study the methods of great cross-examiners, 
or those whose extended experience makes them safe 
guides to follow. 

Hence, the writer believes, it would be decidedly 
helpful to the students of the art of cross-examination 
to have placed before them in a convenient and some- 
what condensed form, some good illustrations of the 
methods of well-known cross-examiners, as exhibited in 
actual practice, in the cross-examination of important 
witnesses in famous trials. 

o 209 



THE ART OF CROSS-EXAMINATION 

For these reasons, and the further one that such ex- 
amples are interesting as a study of human nature, I 
have in the following pages introduced the cross-exami- 
nation of some important witnesses in several remarkable 
trials. 

Often when it is necessary to demonstrate the fact 
that a witness has given colored or false testimony, it is 
not some effective point that is the true test of a great 
cross-examination, but the general effect which is pro- 
duced upon a jury by a long review of all the witness 
has said, bringing out inconsistencies, contradictions, 
and improbable situations which result finally in the 
breakdown of the witness's story. The brief extracts 
from the cross-examinations that have already been 
given will not fully illustrate this branch of the cross- 
examiner's work. 

Really great triumphs in the art of cross-examination 
are but seldom achieved. They occur far less frequently 
than great speeches. All of us who attend the courts 
are now and then delighted with a burst of eloquence, 
but we may haunt them for years and never hear any- 
thing even faintly approaching a great cross-examina- 
tion ; yet few pleasures exceed that afforded by its 
successful application in the detection of fraud or the 
vindication of innocence. 

Some of the greatest cross-examinations in the history 
of the courts become almost unintelligible in print. The 
reader nowadays must fancy in vain such triumphs as 

210 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

those attained by Lord Brougham in his cross-examina- 
tion of the Italian witness Majocchi, in the trial of Queen 
Caroline. To a long succession of questions respecting 
matters of which he quite obviously had a lively recollec- 
tion, the only answer to be obtained on cross-exami- 
nation from this witness was Non mi recordo (I do not 
remember). 

Seventy years ago this cross-examination was reputed 
" the greatest masterpiece of forensic skill in the history 
of the world," and Non '}ni recordo became household 
words in England for denoting mendacity. Almost 
equally famous was the cross-examination of Louise 
Demont by Williams, in the same trial. And yet noth- 
ing could be less interesting or less instructive, perhaps, 
than the perusal in print of these two examinations, 
robbed as they now are of all the stirring interest they 
possessed at the time when England's queen was on 
trial charged with adulterous relations with her Italian 
cotirier de place. 

Much that goes to make up an oration dies with its 
author and the event that called it into being. Likewise 
the manner of the cross-examiner, the attitude of the 
witness, and the dramatic quality of the scene, cannot 
be reproduced in print. 

In order to appreciate thoroughly the examples of suc- 
cessful cross-examinations which here follow, the reader 
must give full vent to his imagination. He must try to 
picture to himself the crowded court room, the excite- 

211 



THE ART OF CROSS-EXAMINATION 

ment, the hush, the expectancy, the eager faces, the 
silence and dignity of the court, if he wishes to realize 
even faintly the real spirit of the occasion. 

Martinez v. Del Valle 

One of the most brilliant trials in the annals of the 
New York courts was the celebrated action for breach 
of promise of marriage brought by Miss Eugenie 
Martinez against Juan del Valle. The cross-examina- 
tion of the plaintiff in this case was conducted by the 
Hon. Joseph H. Choate, and is considered by lawyers 
who heard it as perhaps the most brilliant piece of work 
of the kind Mr. Choate ever did.^ 

The case was called for trial in the Supreme Court, 
New York County, before Mr. Justice Donohue, on the 
fourteenth of January, 1875. The plaintiff was repre- 
sented by Mr. William A. Beach, and Mr. Choate ap- 
peared for the defendant, Mr. del Valle. The trial lasted 
for a week and was the occasion of great excitement 
among the habitues of the court-house. To quote from 
the daily press, " All those who cannot find seats within 

*When Mr. Choate retired from practice his court records had become so 
voluminous that many of them were destroyed, including all record of this 
trial. Both of the court stenographers who reported the trial have since died. 
Mr. Beach's recollection of the case had died with him and all his notes had 
likewise been destroyed. It was by the merest accident that a full transcript 
of the stenographic minutes of the trial was discovered in the possession of a 
former friend and legal representative of the defendant. 

212 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

the court room, remain standing throughout the entire 
day in the halls, with the faint hope of catching a sight 
of the famous plaintiff, whose beauty and grace has at- 
tracted admirers by the score, from every stage of society, 
who haunt the place regardless of inconvenience or 
decency." 

There is no more popular occasion in a court room 
than the trial of a breach of promise case, and none 
more interesting to a jury. Such cases always afford 
the greatest satisfaction to an eager public who come to 
witness the conflict between the lawyers and to listen to 
the cross-examinations and speeches. With Mr. Beach, 
fresh from his nine days' oration in the Henry Ward 
Beecher case, pitted against Mr. Choate, who told the 
jury that this was his first venture in this region of the 
law; and with a really beautiful Spanish woman just 
twenty-one years of age, "with raven black hair and 
melting eyes shadowed by long, graceful lashes, the 
complexion of a peach, and a form ravishing to con- 
template," suing a rich middle-aged Cuban banker for 
$50,000 damages for seduction and breach of promise 
of marriage, the intensity of the public interest on 
this particular occasion can be readily imagined, and 
served as a stimulus to both counsel to put forth their 
grandest efforts. 

The plaintiff and defendant were strangers until the 
day when she had slipped on the ice, and had fallen in 
front of the Gilsey House on the corner of 29th Street 

213 



THE ART OF CROSS-EXAMINATION 

and Broadway. Mr. del Valle had rushed to her assis- 
tance, had Hfted her to her feet, conducted her to her 
home, received the permission of her mother to become 
her friend, and six months later had become the defend- 
ant in this notorious suit which he had tried to avoid by 
offering the plaintiff ^20,000 not to bring it into court. 

Mr. Choate spoke of it to the jury as an excellent illus- 
tration of the folly, in these modern times, of attempting 
to raise a fallen woman ! To quote his exact words : — 

" Now I want to speak a word of warning to all Good 
Samaritans, if there are any in the jury box, against this 
practice of going to the rescue of fallen women on the 
sidewalks. I do not think my client will ever do it 
again. I do not think anybody connected with the 
administration of justice in this case will ever again go 
to the relief of one of our fair fallen sisters under such 
circumstances. I know the parable of the Good Samari- 
tan is held up as an example for Christian conduct and 
action to all good people, but, gentlemen, it does not 
apply to this case, because it was ' a certain man ' who 
went down to Jericho and fell among thieves, and not 
a woman, and the Good Samaritan himself was of the 
same sex, and there is not a word of injunction upon any 
of us to go to the rescue of a person of the other sex 
if she slips upon the ice. Why, gentlemen, that is an 
historical trick of the ' nymphs of the pave.' Hundreds 
of times has it been practised upon the verdant and 
inexperienced stranger in our great city." 

214 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate felt that he had a good case, a perfectly 
clear case, but that there was one obstacle in it which 
he could not overcome. There was a beautiful woman 
in the case against him, "a combination of beauty and 
eloquence which would outweigh any facts that might 
be brought before a jury." 

Very early in the trial Mr. Choate warned the jury 
against the seductive eloquence and power of the learned 
counsel whom the plaintiff had enlisted in her behalf, — 
"one of the veterans of our Bar, of whose talents and 
achievements the whole profession is proud. In that 
branch of jurisprudence which I may call sexual litiga- 
tion he is without a peer or a rival, from his long expe- 
rience ! You can no more help being swayed by his 
eloquence than could the rocks and the trees help 
following the lyre of Orpheus ! " 

When it came Mr. Beach's turn to address the jury 
he replied to this sally of Choate's : — 

" During the progress of this trial, counsel has seen 
fit to make some personal allusions to myself. (Here 
Mr. Choate faced around.) It seemed to me not con- 
ceived in an entirely courteous spirit. He belabored 
me with compliments so extravagant and fulsome that 
they assumed the character of irony and satire. It is 
a common trick of the forum to excite expectations 
which the speaker knows will not be gratified, and blunt 
even the force of plain and simple arguments which may 
be addressed to the jury. The courtesy of the learned 

215 



THE ART OF CROSS-EXAMINATION 

counsel requires a fitting acknowledgment, and yet I 
confess my utter inability to do it. I lack the language 
to delineate in proper colors the brilliant faculties of the 
learned gentleman, and I am perforce driven to borrow 
from others the words which describe him properly. I 
know no other source more likely to do the gentleman 
justice than the learned and accomplished friends among 
us taking notes. I noticed a description of my learned 
friend so appropriate and just that I adopt the language 
of it. (Here counsel read.) ' The eloquent and witty 
Choate sat with his classic head erect, while over his 
Cupid features his blue eyes shed a mild light.' (Great 
laughter.) Allow me to tender it to you, sir. (Mr. Choate 
smilingly accepted the newspaper clipping.) 

" And how completely does my learned friend fulfil 
this description ! How like a god he is ! What beauty! 
The gloss of fashion and the mould of form ! \_Lmigkter^ 
The observed of all observers ! Why, how can I under- 
take to contend with such a heaven-descended god ! 
\_Laughter^ He chooses to attribute to me something 
of Orpheonic enchantments, but should I attempt to 
imitate the fabled musician, sure I am I could not touch 
his heart of stone ! But he strikes the Orpheonic lyre 
which he brings with him from the celestial habitation. 
How can you resist him } What hope have I with like 
weapons or efforts } If the case of this poor and crushed 
girl depends on any contest of wit or words between the 

counsel and myself, how hopeless it is ; and yet I have 

216 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

some homely words, some practical facts and considera- 
tions to address to your understandings, which I hope 
and believe will reach your conviction." 

Miss Martinez took the witness-stand in her own 
behalf and told her story : — 

" I became acquainted with Juan del Valle under 
the following circumstances : On or about the four- 
teenth of January, 1875, when passing through 29th 
Street, near Broadway, I slipped on a piece of ice and 
fell on the sidewalk, badly spraining my ankle. Recov- 
ering from my bewilderment, I found myself being 
raised by a gentleman, who called a carriage and took 
me home. He assisted me into the house, and asked 
whether he might call again and see how I was getting 
on. I asked my mother, and she gave him permission. 
He called the next day, and passed half or three quarters 
of an hour with me, and told me he was a gentleman 
of character and position, a widower, and lived at 55 
West 28th Street, that he was very much pleased with 
and impressed by me, and that he desired to become 
better acquainted. He then asked whether he might call 
in the evening and take me to the theatre. I told him 
that my stepfather was very particular with me, and w^ould 
not permit gentlemen to take me out in the evening, but 
that, as mother had given her consent, I had no objec- 
tions to his calling in the afternoon. He called three or 
four times a week, sometimes with his two younger chil- 
dren, and sometimes taking me to drive in the Park. 

217 



THE ART OF CROSS-EXAMINATION 

" About three weeks after the beginning of our 
acquaintance he told me he had become very fond of 
me, and would like to marry me; that his wife had 
been dead for three years, and that he was alone in the 
world with four children who had no mother to care 
for them, and that if I could sacrifice my young life 
for an old man like him, he would marry me and give 
me a pleasant home ; that he was a gentleman of wealth, 
able to provide for my every want, and that if I would 
accept him I should no longer be compelled, either 
to endure the strict discipline of my stepfather, or to 
struggle for simple existence by teaching. He gave 
me the names of several residents of New York, 
some of whom my stepfather knew personally, of whom 
I might make inquiries as to his character and position. 

" I asked Mr. del Valle whether he was in earnest, 
saying that I was comparatively poor, and since my 
stepfather's embarrassment in business had not mingled 
in society, and wondered that he should select me when 
there were so many other ladies who would seem more 
eligible to a gentleman of his wealth and position. He 
replied that he was in earnest and that he had once 
married for wealth, but should not do so again. He told 
me to talk with mother and give him an answer as soon 
as possible. He said that he loved me from the first 
moment he saw me, and could not do without me. 
My mother gave consent and I promised to marry him. 
Mr. del Valle then took me to Delmonico's and after 

218 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

we had dined we went to a jewellery store in 6th Avenue, 
and he selected an amethyst ring for an engagement 
ring, as he said. The ring was too large and was left to 
be made smaller. Two or three days afterward he called 
on me at my house, placed the ring on my finger, and 
said, ' Keep that ring on that finger until I replace it 
with another.' 

" At the third interview after the presentation of the 
ring, Mr. del Valle said that owing to some difificulties 
in his domestic affairs, which he called a ' compromise,' 
he did not think it best to be married publicly, as he 
feared that the publication of his marriage might cause 
trouble. So he urged me to marry him immediately 
and privately. I was greatly surprised, and said : ' If 
there is any trouble, why marry at all? I hope there 
is nothing wrong. What is the nature of the " com- 
promise " ? ' and he replied : ' Oh, there is nothing wrong, 
but I have a " compromise " in Cuba, and it is not con- 
venient for you or me to marry publicly, as the person 
concerned might make you trouble.' 

" I told Mr. del Valle that I would not marry him 
privately, and that I would release him from his engage- 
ment. A day or two afterward he took me to a restau- 
rant to dine with him, and I then gave him a letter 
in which I enclosed the engagement ring, and told him 
I would not marry him privately. This letter I sealed, 
asking him not to open it until after we had separated. 
Five or six days afterward he called again, and seemed 

219 



THE ART OF CROSS-EXAMINATION 

ill. He said that my letter had made him sick, and 
he asked, ' What could induce you to write such a letter, 
Eugenie ? You could not have loved me if you thought 
so much about the nonsense I told you about a com- 
promise. The compromise is all arranged, and I want 
you to take back the ring, and say when and where we 
shall be married.' I said I still loved him, and if the 
' compromise ' had been arranged, I would accept the 
ring, but would not marry him secretly. He then put 
the ring on my finger, and said, ' Now I want you to tell 
when and where we shall get married.' It was finally 
as:reed that we should be married in the fall. 

" From the date of this conversation, w^hich was early 
in March, 1875, until the twenty-eighth of April, 1875, 
Mr. del Valle called almost daily and took me to 
theatres and other places, and was received at home 
by all my family except my stepfather as my accepted 
suitor. He frequently complained that he could not 
call in the evening, and wished me to live in his house 
in Twenty-eighth Street, and take charge of his children. 
I refused, and he then proposed to take a place in the 
country, where the children could have plenty of air 
and exercise, if I would go and take charge of them, 
and as we were to be married so soon, he wished me 
to get well acquainted with his children, adding that 
if I really loved him, I need have no doubt about his 
honorable intentions. 

" I laughed at the idea, but finally consented to leave 

220 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

my home and go into the country with his family. As 
I was losing all my pupils he insisted upon giving me 
^loo a month. He persuaded me there was no impro- 
priety in his suggestion, as we were to be married, and 
that I should never return home excepting as his wife. 
I had told him that my stepfather had threatened to 
shoot me and any man whom I might marry. He per- 
suaded me to leave my home at once, and as he had not 
yet secured a country house for the summer, I was to go 
to the Hotel Royal for a few days and live under an 
assumed name, which I did. He kept me at the hotel 
for five weeks, persuading me not to return home, and 
by the first of June he had secured a country place at 
Poughkeepsie, and I went there to live with himself and 
his four children. 

" His conduct toward me up to this time had always 
been everything that could be desired, — always kind 
and considerate and anxious for my every comfort, — 
neither by word or act did he indicate to me that his 
intention was any other than to make me his wife. He 
had engaged a very fine mansion at Poughkeepsie, over- 
looking the Hudson, fine grounds, and everything one 
could desire in a country house. Mr. del Valle gave me 
the keys to the house and told me the entire establish- 
ment was under my charge. 

" Six days after I arrived at Poughkeepsie he forced 
his way into my bedroom. I insisted upon an immediate 
marriage as my right. He told me he had not been 

221 



THE ART OF CROSS-EXAMINATION 

able to arrange the compromise in Cuba, and begged me 
to be reasonable and he would be my life friend ; that I 
could not return home under the circumstances, and that 
anything I might at any time want he would always do 
for me. He tried to persuade me that I would best 
accept the situation as it was, and that it was a very com- 
mon occurrence. I had no home to go to and did not 
dare to record the circumstance to my mother; I would 
have died first. Three months later, or at the end of the 
summer, his manner entirely changed toward me. I re- 
peatedly asked him for some explanation. He persuaded 
me that his coldness was assumed to prevent the ser- 
vants from talking, that he was going to Cuba to try to 
fix up the compromise, and prevailed upon me to go 
back to my home and parents and wait. This I did on 
the sixth of September. After I returned to New York I 
wrote to him but received no reply, and have never seen 
him since." 

Nothing could be more witty or brilliant than Mr. 
Choate's own description to the jury of " the appearance 
of this fair and beautiful woman while she was giving 
her evidence on the witness-stand." It was a part of 
the exhibition, he said, which no reporter had been 
adequate to describe. 

" Gentlemen, have you seen since the opening of this 
trial one blush, one symptom of distress upon her sharp 
and intelligent features ? Not one. There was in a 
critical point of her examination a breaking down or a 

222 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

breaking up, as I should prefer to call it. Her handker- 
chief was applied to her eyes ; there was a loud cry for 
' Water, water,' from my learned friend, echoed by his 
worthy and amiable junior, as though the very Bench 
itself were about to be wrapped in flames ! \_Laughter.'] 
But when the crisis was over, then it appeared that there 
had only been a momentary eclipse of the handkerchief, — 
that she had been shedding dry tears all the while ! 
Not a muscle was disturbed ; she advanced in the 
progress of her story with sparkling eyes and radiant 
smile and tripping tongue, and thus continued to the 
end of the case ! 

" The great masters of English fiction have loved 
nothing better than to depict the appearance in court 
of these wounded and bleeding victims of seduction 
when they come to be arrayed before the gaze of the 
world. 

" You cannot have forgotten how Walter Scott and 
George Eliot have portrayed them sitting through the 
ordeal of their trials, — the very pictures of crushed 
and bleeding innocence, withering under the blight 
that had fallen upon them from Heaven, or risen upon 
them from Hell. Never able so much as to raise their 
eyes to the radiant dignity of the Bench \_Laugkter\, 
seeming to bear mere existence as a burden and a 
sorrow. But, gentlemen, our future novelist, if he will 
listen and learn from what has been exhibited here, 
will have a wholly different picture to paint He will 

223 



THE ART OF CROSS-EXAMINATION 

not omit the bright and fascinating smile, the sparkling 
eye, the undisturbed composure from the beginning to 
the end of the terrible ordeal. With what zest and 
relish and keen enjoyment she detailed her story ! What 
must be the condition of mind and heart of the woman 
who can detail such stories to such an audience as was 
gathered together here ! " 

Speaking of the whole case, Mr. Choate said : 
" Never did a privateer upon the Spanish main give 
chase to and board a homeward-bound Indiaman with 
more avidity and vigor than this family proposed to 
board this rich Cuban and make a capture of him. It 
was a ' big bonanza ' thrown to them in their distress." 

It will be seen that the one great question of fact 
to be disposed of in the case was whether there was a 
breach of promise of marriage on the part of the de- 
fendant to the plaintiff ; that being decided in the 
negative, everything else would disappear from the 
case. All other matters were simply incidental to 
that. 

The conflicting evidence could not be reconciled. 
One side was wholly true, the other side wholly false, 
and the jury were to be called upon to say where the 
truth was. Was there a promise of marriage three 
weeks after the plaintiff and defendant met on the 
corner of 29th Street and Broadway.? 

The plaintiff had stated in substance that after three 
weeks the defendant proposed marriage and she accepted 

224 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

him ; that he took her in a carriage to Delmonico's 
to lunch and took her to a jeweller's store in Sixth 
Avenue and there purchased a ring as a binding token 
of the promise of marriage. That was her case. If 
the jury believed that, she would succeed. If they did 
not, her case falls. That ring was a clincher, according 
to her statement of the story, given on the heels of the 
promise of marriage. What else could it mean but to 
bind that bargain ? This was the way the case stood 
when Mr. Choate rose to cross-examine Miss Martinez. 

There could be no greater evidence of the success of 
the particular method of examination that Mr. Choate 
chose to adopt on this occasion than the comment in 
the JVew York Siui : " A vigorous cross-examination by 
Mr. Joseph Choate did not shake the plaintiff's testi- 
mony. Miss Martinez told her story over again, only 
more in detail ! " How poor a judge of the art of cross- 
examination this newspaper scribe proved himself to be ! 
He had entirely failed to penetrate the subtlety of Mr. 
Choate's methods or to realize that, in the light of the 
testimony that was to follow for the defence. Miss 
Martinez, during her ordeal, which she appeared to 
stand so well, had been wheedled into a complete 
annihilation of her case, unconsciously to herself and 
apparently to all who heard her. 

In sharp contrast to Mr. Choate's style of cross-exami- 
nation is that adopted by Sir Charles Russell in the 
cross-examination of the witness Pigott, — which is given 
p 225 



THE ART OF CROSS-EXAMINATION 

in the following chapter, — and where the general ver- 
dict of the audience as Pigott left the witness-box was 
"'smashed''' ; and yet, though the audience did not realize 
it, Miss Martinez left the witness-stand so effectually 
" smashed " that there never afterwards could be any 
doubt in Mr. Choate's mind as to the final outcome of 
the case. In his summing up Mr. Choate made this 
modest reference to his cross-examination : " I briefly 
ask your attention to her picture as painted by herself, 
— to her evidence, and her letters, giving us her history 
and her career." And then he proceeded to tear her 
whole case to pieces, bit by bit, in consequence of the 
admissions she had unsuspectingly made during her 
cross-examination. 

" And now, gentlemen, with pain and sorrow I say it, 
has not this lady by her own showing, by her own written 
and spoken evidence and the corroborating testimony of 
her sister, established her character in such a way that it 
will live as long as the memory of this trial survives ? " 

In starting his cross-examination Mr. Choate pro- 
ceeded to introduce the plaintiff to the jury by interro- 
gating her with a series of short, simple questions, the 
answers to which elicited from the lady a detailed 
account of her life in New York since the year of her 
birth. 

She said she was twenty-one years old ; was born in 
New York City; her parents were French; her own 
father was a wine merchant; he died when she was 

226 



I 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

seven years old ; two years later her mother married a 
Mr. Henriques, with whom she had lived as her step- 
father for the fourteen years preceding the trial. She 
had been educated in a boarding-school, and since gradu- 
ation had been employing herself as a teacher of lan- 
guages, etc., etc. 

Mr. Choate had in his possession a letter written by 
the plaintiff to Mr. del Valle during the first few weeks 
of their acquaintance. In this letter Miss Martinez had 
complained of the wretchedness of her home life in con- 
sequence of the amorous advances made to her by her 
stepfather. Mr. Choate was evidently of the opinion 
that this letter was a hoax and had been written by Miss 
Martinez for the sole purpose of eliciting Mr. del Valle's 
sympathy, and inducing him to allow her to come and 
live in his family as the governess of his children with 
the idea that a proposal of marriage would naturally 
result from such propinquity. Suspecting that the con- 
tents of this letter^ were false, and judging from state- 

1 Dear Friend : I believe I promised to write and tell you my secret. I will 
now do so. When I was nine years of age my father died. My mother 
married my uncle, who is now my father. To make a long story short, papa 
loves me, and has done everything in his power to rob me of what is dearer to 
me than my life, — my honor. And ever since I was a little child he has 
annoyed me with infamous propositions and does so still. You can easily 
imagine how unhappy and miserable he made me, for I don't love him the 
way he wishes me to, and I cannot give him what he wants, for I would 
sooner part with my life. I have only God to thank for my unsullied honor. 
He has watched over me in all my troubles, for oh, ray dear friend, I have 
had so many, many trials ! But it is God's will and I always tried to be a good 

227 



THE ART OF CROSS-EXAMINATION 

ments made in the plaintiff's testimony-in-chief that she 
had either forgotten all about this letter or concluded 
that it had been destroyed, Mr. Choate set the first trap 
for the plaintiff in the following simple and extremely 
clever manner. 

Mr. Choate. " By what name did you pass after you 
returned home from boarding-school and found your 
mother married to Mr. Henriques } " 

Miss Martinez. " Eugenie Henriques, invariably." 

Mr. Choate. " And when did you first resume the 
name of Martinez ? " 

Miss Martinez. " When I left the roof of Mr. 
Henriques." 

Mr. Choate. " Always until that time were you called 
by his name ? " 

Miss Martinez. " Always." 

Mr. Choate. " Did your father exercise any very 
rigid discipline over yourself and your sister that you 
remember } " 

Miss Martinez. " He did." 

Mr. Choate. " When did that rigid discipline begin ? " 

Miss Martinez. " It commenced when I first knew 
him." 

girl, and now you know my secret, my heart feels light. I now leave you, 

wishing you all my sincere good wishes, and with many kisses to the dear 

little girls, I remain your friend, 

" Eugenie. 

" N.B. I will meet you on Saturday at i o'clock, corner of Twenty-eighth 
Street and Broadway." 

228 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate. " And it was very rigid, wasn't it ? " 

Miss Martinez. " It was, very." 

Mr. Choate. " Both over yourself and over your 
younger sister ? " 

Miss Martinez. " Yes." 

Mr. Choate. " Taking very strict observation and care 
as to your morals and your manners } " 

Miss Martinez. " Exceedingly so." 

Mr. Choate. " How did this manifest itself ? " 

Miss Martinez. " Well, in preventing my having any 
other associates. He thought there was no one good 
enough to associate with us." 

Mr. Choate. " Then he was always very strict in 
keeping you in the path of duty, was he not } " 

Miss Martinez. " Most undeniably so." 

Mr. Choate. " Was this a united family of which you 
were a member.? Were they united in feeling.?" 

Miss Martinez. " Very much so indeed. There are 
very few families that are more united than we were." 

Mr. Choate. " All fond of each other .? " 

Miss Martinez. " Always." 

One can readily picture to himself Mr. Choate and 
the fair plaintiff smiling upon each other as these 
friendly questions were put and answered. And the 
plaintiff, entirely off her guard, is then asked, probably 
in a cooing tone of gentleness and courtesy that can be 
easily imagined by any one who has ever heard Mr. 
Choate in court, the important question : — 

229 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " As to your stepfather, you were all 
fond of him and he of you ? " 

Miss Martinez. " Very fond of him indeed, and he 
very fond of us." 

Mr. Choate. " And except this matter of his rigid 
discipline, was he kind to you ? " 

Miss Martinez. " Very." 

Mr. Choate. " And gentle ? " 

Miss Martinez. " Very gentle and very kind." 

Mr. Choate. " Considerate ? " 

Miss Martinez. " Very considerate always of our hap- 
piness, but he did not wish us to associate with the 
people by whom we were surrounded, as we were not 
in circumstances to live amongst our class." 

Mr. Choate. " When was it that he first introduced 
the subject of marriage, or forbidding you to marry, or 
thinking of marrying ? " 

Miss Martinez. " Well, when I was about sixteen or 
seventeen." 

Mr. Choate. " And was it then that he said that if you 
married, he would shoot you and shoot any man that 
you married } " 

Miss Martinez. " He did." 

Mr. Choate. "That was the one exception to his 
ordinary gentleness and kindness, wasn't it 1 " 

Miss Martinez. " Yes." 

Mr. Choate. " And the only one .? " 

Miss Martinez. " And the only one." 

230 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate. " Your stepfather is no longer living, 
is he?" 

Miss Martinez. " He is not. He died last October." 

It will be observed that Mr. Choate did not confront 
the witness at this point with the letter that she had 
written, complaining of her father's brutal advances to 
her, and of the necessity of her leaving her home in con- 
sequence. Many cross-examiners would have produced 
the letter and would have confronted the witness on the 
spot with the contradiction it contained, instead of 
saving it for the summing up. It is interesting to study 
the effect of such a procedure. By a production of this 
letter, the witness would have been immediately dis- 
credited in the eyes of the jury; the full force of the 
contradictory letter would have been borne in upon the 
jury as perhaps it could not have been at any other time 
in the proceeding, and the Sun reporter could not have 
said the plaintiff had not been " shaken." On the other 
hand, it would have put the witness upon her guard at 
the very start of her cross-examination, and she would 
have avoided many of the pitfalls which she confidingly 
stepped into later in her testimony. All through the 
examination Mr. Choate had frequent opportunities to 
put the witness on her guard, but at the same time 
off her balance. It is a mooted question which method 
is the better one to employ. It all depends upon the 
nature of the case on trial. 

Richard Harris, K.C., an English barrister who has 

231 



THE ART OF CROSS-EXAMINATION 

written several clever books on advocacy, says : " From 
a careful observation, I have reluctantly come to the 
conclusion that in five cases out of six, I would back 
the advocate and not the case." This is especially true 
of a breach of promise case when the suit is for a breach 
of promise of marriage, but when owing to the unwise 
conduct of the defendant's lawyer at the trial in un- 
necessarily attacking the woman plaintiff, the verdict of 
the jury in her favor is for slander. It may have been 
some such consideration as this which determined Mr. 
Choate to save all his " points " for his summing up. 

It is perhaps the safer course of the two in cases of 
this kind, but I doubt very much if, in the great majority 
of cases, it is the wiser one ; for it must be remembered 
that there are few lawyers at the Bar who can make 
such use of his "points" in his summing up as did 
Mr. Choate. 

Had Miss Martinez been confronted with her own 
letter in which she had written of her stepfather, " He 
loves me and has done everything in his power to rob 
me of what is dearer to me than my life, — my honor. . . . 
Ever since I was a little child he has annoyed me with 
infamous propositions," etc., it would be difficult to 
imagine any way in which she could reconcile her letter 
and her sworn testimony, and Mr. Choate would have had 
the upper hand of his witness from that time on. 

Furthermore, during the examination of a witness the 
jury invariably form their opinion of the witness' integrity, 

232 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

and if that opinion is in favor of the witness it is often too 
late to try to shake it in the summing up. It is usually, 
therefore, the safer course to expose the witness to the 
jury in his or her true colors during the examination, and, 
if possible, prejudice them against her at the outset. In 
such cases, oftentimes, no summing up at all would be 
necessary, and the closing speech becomes a mere matter 
of form. Many lawyers save their points in order to 
make a brilliant summing up, but then it is perhaps too 
late to change the jury's estimate of the witnesses. An 
opinion once formed by a juror is not easily changed by 
a speech, however eloquent. This is the experience of 
every trial lawyer. 

As evidence of how completely this part of Mr. Choate's 
case flattened out because it was left until the final argu- 
ment, it is only necessary to call the reader's attention to 
all that was said on the subject in the summing up, viz. : 
" Her letter was read to the jury, which she had delivered 
to the defendant on the fifteenth of March, revealing her 
stepfather's barbarous treatment of her. When I was 
cross-examining her, I did it with that letter in my hand, 
with a view to what was written in it; so I asked her 
about the relations existing between herself and her step- 
father, and she said he was always kind and loving and 
considerate, tender and gentle." 

Instead of nailing this point in the cross-examination, 
as Sir Charles Russell, for instance, would have done, 
Mr. Choate turns quietly to the next subject of his ex- 

233 



THE ART OF CROSS-EXAMINATION 

amination, which is one of vital importance to his client, 
and to the theory of his defence. 

Mr. Choate. " Can you fix the date in January when 
you first saw the defendant, Mr. del Valle ? " 

Miss Martinez. " It was on the fifteenth day of Janu- 
ary, — either the fourteenth or the fifteenth. It was on 
a Thursday. I had an appointment with my dentist." 

Mr. Choate. " Thursday appears by the calendar of 
•that year to have been on \}cv^ fourteenth of January." 

Miss Martinez. " That was the day." 

The supreme importance of this inquiry lies in the 
fact that Mr. Choate was in possession of the account 
books of the jeweller from whom the alleged "engage- 
ment ring " had been purchased. These records 
showed that the ring had been bought on the fifteenth 
day of January, or one day after the plaintiff and the 
defendant first met, and before there had been any 
opportunity for acquaintance or love making, or any 
suggestion or possibility of a proposition of marriage 
and presentation of an engagement ring, which, as the 
plaintiff said in her own story, had been given her 
with the express request that she should wear it until 
another ring should take its place. 

Mr. del Valle's version of the story, which Mr. Choate 
was intending to develop later in the case, was that he 
had met the plaintiff, was pleased with her, had assisted 
her to her home, had met her again the following day, 
had suggested to her, as a little memento of their 

234 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

acquaintance and his coming to her assistance, that 
she would allow him to present her with a ring, and 
that after lunching together in a private room at 
Solaris, they had gone to a jeweller's and he had 
selected for her an amethyst ring in commemoration 
of the day of their meeting. It was this ring which 
the plaintiff later tried to convert into an engagement 
ring, which she claimed was given her three or /our 
weeks after she had first made the acquaintance of Mr. 
del Valle, and after he had repeatedly asked her hand 
in marriao^e. 

Mr. Choate. " What time in the day was it that you 
first met Mr. del Valle on this Thursday, the fourteenth 
day of January } " 

Miss Martinez. " About half-past two o'clock in the 
afternoon." 

Mr. Choate. " Have you any means of fixing the 
hour of that day ? " 

Miss Martinez. " Yes. I had an appointment with 
my dentist at three o'clock." 

Mr. Choate. " Your appointment with the dentist had 
been previously made, and you were on your way there } " 

Miss Martinez. " I was on my way there." 

Mr. Choate. " It was at the corner of Broadway and 
29th Street that you fell on the ice, was it not 1 " 

Miss Marti7tez. " It was." 

Mr. Choate. " You did not observe the defendant 
before you fell .? " 

235 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " I did not." 

Mr. Choate. " And you had never seen him before ? " 
Miss Martinez. " I had never seen him before." 
Mr. Choate. " Did this fall render you insensible ? " 
Miss Martinez. " Very nearly so. I fell on my side 
and was lying down on the ground when Mr. del Valle 
raised me up. I remember there were some iron rail- 
ings near there, and I was leaning against these railings 
while Mr. del Valle hailed a cab, assisted me into 
it, and took me home. He told me in the cab that 
he had been following me all the way up Broadway." 
Mr. Choate. " Did he tell you for what object he fol- 
lowed you ? " 

Miss Martinez. " He did not. He merely told me 
that he was followinsf me." 

Mr. Choate. " And you did not ask him for what 
purpose he followed you ? " 
Miss Martinez. " I did not." 
Mr. Choate. " Did he drive you to your home } " 
Miss Martinez. " He did, and when we arrived he 
assisted me into the house. I had sprained my ankle. 
He explained my accident to my mother, and that he 
had brought me home. My mother thanked him and 
he asked if he might call again and see how I was get- 
ting along with my injury." 

The plaintiff had explained that it was the serious 
nature of her injury which had occasioned her allow- 
ing a stranger to get her a cab and take her home. 

236 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Whereas the clerks in the jeweller's store where the ring 
was bought the day following the accident, remembered 
distinctly seeing the plaintiff and the defendant together 
in the jewellery store for over half an hour while they 
were selecting the ring. 

In order to involve the plaintiff in further difficulties 
and contradictions, Mr. Choate continues in the same 
vein: — 

Mr. Choate. " You were somewhat seriously disabled 
by your accident, were you not ? " 

Miss Martinez. " I was." 

Mr. Choate. " For how long } " 

Miss Martinez. " Well, for two or three days." 

Mr. Choate. " A sprained ankle .? " 

Miss Martinez. " My ankle hurt me very much. I 
had it bandaged with cold water and lay on the bed for 
two days. The third day I was able to limp around 
the room only a little, and the fourth day I could walk 
around." 

Mr. Choate. " How long was it before you got entirely 
over it so as to be able to go out of doors .? " 

Miss Martinez. " Well, / went out the fifth dayV 

Mr. Choate. " And not before .? " 

Miss Martinez. "And not before." 

Mr. Choate. " So that because of the Injuries that you 
sustained, you were confined to the house for five 
days .? " 

Miss Martinez. " I was." 

237 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. "And the first day, or January i6 (this 
was the day she had bought the ring), you were confined 
to your room and lying upon the bed ? " 

Miss Martinez. " Yes, sir. I recHned upon my bed. 
I was not confined in bed as sick." 

Mr. Choate. " When was the first time that you were 
with Mr. del Valle at any time except at your father's 
or your mother's house ? " 

Miss Martinez. "Do you mean the first time that I 
went out with him ? " 

Mr. Choate. " Yes." 

Miss Martinez. " It was during the week following 
that in which I met him. I met him on Thursday, 
the fourteenth, and went out with him sometime during 
the following week." 

Mr. Choate. " What was the place '^. " 

Miss Martinez. " We went to Delmonico's to dine." 

^L. ^L. ^. ^ «Jj^ ^L. ^ ^ 

Mr. Choate. " Was the ring the only present he gave 
you, or the first present ? " 

Miss Martinez. " Oh, no, not by any means." 

Mr. Choate. " When did you begin to accept presents 
from him } " 

Miss Martinez. " The first day I went out with him, 
when we went to Delmonico's, I accepted books from 
him." 

Mr. Choate. " What was the book that he then pre- 
sented to you } " 

238 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " Oh, well, I forget the title of it. I 
think it was ' Les Miserables ' by Victor Hugo." 

Mr. Choate. " And from that time he continued, when 
you went out with him, as a general thing, giving you 
something ? " 

Miss Martinez. " Giving me books and buying me 
candies. After we were through dining, he would stop 
at a confectioner's and buy me something." 

Mr. Choate. " Down to the first time of the first talk 
of marriage, which you say was about three weeks after 
you met, how many times did you go with him to Del- 
monico's, or other restaurants ? " 

Miss Martinez. " Well, on an average of about two 
or three times a week." 

Mr. Choate. " Where else did you go besides Del- 
monico's } " 

Miss Martinez. " The first time I went to any place 
with him besides Delmonico's was at the time of the 
engagement, when he gave me the ring, — when he 
bought the ring for me." 

Mr. Choate. " Where did you go then ? " 

Miss Martinez. " We went in University Place some- 
where. I do not exactly know what street." 

Mr. Choate. "What side of University Place was it?" 

Miss Martinez. " On the opposite side from Chris- 
tern's book store." 

Mr. Choate (with a smile). "Was it a place called 
Solari's?" 

239 



THE ART OF CROSS-EXAMINATION 

Miss Martmez (hesitating). " I think it was." 

Mr. Choate. " How many times did you go there 
with him before he gave you the ring ? " 

Miss Martinez. " I never went there before he gave 
me the ring. That was the first time I ever went to 
this place." 

Mr. Choate. *' How came you way down there in 
University Place if you live up in 56th Street.? Did 
you make an appointment to be there ? " 

Miss Martinez. "He came up to the house for me." 

Mr. Choate. " Came up and took you down there ? " 

Miss Martinez. " Yes. Didn't he come up to in- 
quire if I had accepted him as a husband, and ask me 
if I had consulted with my mother, and ask me what 
answer I had for him, and had I not told him that I 
would marry him? It was then that he took me to 
this restaurant in a carriage, and after that he bought 
the ring for me." 

Mr. Choate. " The same day .? " 

Miss Martinez. " The very same day." 

Mr. Choate. " Some considerable number of weeks, 
you say, intervened between your first acquaintance 
and this dinner at Solari's, — this engagement and the 
giving of the ring } " 

Miss Marti7tez. " About three weeks as nearly as 
I can fix the time." 

Mr. Choate. " Where was this jewellery store where 

the ring was bought .? " 

240 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " It was on Sixth Aveni j. I cannot 
say near what street it was. I felt cold and tired that 
day. We walked from Solari's and it seemed to me 
as though the walk was rather long." 

Mr. Choate. " You remember the name of the store .f* " 

Miss Martinez. " I do not." 

Mr. Choate. " Should you know the name if I told 
you ? " 

Miss Martinez. "No, I never knew the name." 

This jeweller took the witness-stand for the defence, 
and testified that Miss Martinez was present on the fif- 
teenth of January, when the ring was bought, according 
to the entry made in his books, and that in consequence 
of the ring being too large she had ordered it made 
smaller, and had returned three days later herself alone, 
had taken the ring from his hand, and had given 
him a letter addressed to Mr. del Valle, asking him to 
deliver it when Mr. del Valle should call to pay for the 
ring, " although," as Mr. Choate sarcastically put it, " it 
had been in her fond memory as a cherished remem- 
brance that Mr. del Valle had put it on her finger 
and told her to keep it there until he replaced it with 
another. Who does not see," said Mr. Choate, in his 
summing up, " that the disappearance of the ring from 
the case as a gift upon a promise of marriage three weeks 
after the first acquaintance carries down with it all 
this story of the return of the ring to the defendant, 
and the defendant's re-return of it to the plaintiff?" 
Q 241 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " Did you ever go to this store but the 
one time ? " 

Miss Martinez. " Never went there but the one time." 

Mr. Choate. " And you are sure of that ? " 

Miss Martinez. " I am very sure of that." 

Mr. Choate. " The only time you were there was 
with Mr. del Valle ? " 

Miss Martinez. " That was the only time I have ever 
been in that store in my life." 

Mr. Choate. " You say you looked at a solitaire 
diamond ring } " 

Miss Martinez. " Yes, but Mr. del Valle told me 
that he preferred an amethyst, and I took the amethyst." 

Mr. Choate. " There was a considerable difference 
in the cost, wasn't there, between them ? " 

Miss Martinez. " There was." 

Mr. Choate. " Do you know the cost of the amethyst 
ring ? " 

Miss Martinez. " I think it was forty-five dollars." 

Mr. Choate. " The cost of a solitaire diamond ring 
might be many hundreds of dollars ? " 

Miss Martinez. " One hundred and five dollars, one 
hundred and ten dollars, one hundred and fifteen dol- 
lars, — I do not know." 

Mr. Choate. " Did you look at any other jewellery .? " 

Miss Martinez. " Mr. del Valle asked me if I wished 
anything else, but I did not." 

Mr. Choate here deviated from his former plan of not 

242 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

confronting the witness with the evidence he was in- 
tending to contradict her with, and having first shown 
the witness the letter addressed to Mr. del Valle which 
she had left at the jeweller's on her second visit there, 
the handwriting of which the witness denied, Mr. 
Choate followed with this question : ^ — 

Mr. Choate. " Now let me refresh your recollection a 
little. Miss Martinez. Didn't this visit to the jeweller's 
take place on the fifteenth of January, the day after you 
made the acquaintance of Mr. del Valle 1 " 

Miss Martinez. " Oh, no, not by any means, sir." 

Mr. Choate. " Sure of that } " 

Miss Martinez. " I am very sure of it, for I was con- 
fined to my room the day after I first made the acquaint- 
ance of Mr. del Valle." 

Mr. Choate. " Then you never went to that jeweller's 
store but once ? " 

Miss Martinez. " Never. I would not know the store, 
and do not know. I do not recollect the name or any- 
thing about it" 

Mr. Choate. " There was some trouble about the ring 
being too large, wasn't there ? " 

Miss Martinez. " Yes, the ring was too large for the 
finger I wished it for." 

1 This is an illustration of a practice recommended in a former chapter, of 
asking questions upon the cross-examination which you know the witness will 
deny, but which will acquaint the jury with the nature of the defence and 
serve to keep up their interest in the examination. 

243 



THE ART OF CROSS-EXAMINATION 

Mr, Choate. " And orders were left to have it made 
smaller ? " 

Miss Marti7iez. " Yes." 

Mr. Choate. " What arrangement was made, if any, 
for your getting the ring when it should be made 
smaller ? " 

Miss Martinez. " There was no arrangement made. 
Mr. del Valle merely said that when he called upon me 
again he would bring it to me, and he did bring it to 
me." 

Mr. Choate. " About what time was that ; in Feb- 
ruary ? " 

Miss Martinez. " It was, I should say, the first week 
in February. I cannot give the exact date." 

Mr. Choate. " Now let me again try to refresh your 
recollection. Didn't you yourself go to the jewellery 
store and get the ring ? " 

Miss Marti7iez. " I myself ? " 

Mr. Choate. " You yourself." 

Miss Martinez. " I never went to that jewellery store 
but once in my life and that was with Mr. del Valle 
himself while I selected the ring." 

On behalf of the defendant Mr. Choate was intending 
to swear as witnesses a Mr. Louis, who kept the store 
on Ninth Avenue around the corner from where the 
plaintiff lived in 44th Street, and a Mrs. Krank, who 
lived around the corner from her residence on 56th 

244 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Street, who would both testify that the plaintiff had a 
confirmed habit of having letters left there, — letters 
from various gentlemen, some of them having the mono- 
gram " F. H.," the initials of Frederick Hammond, the 
clerk of the Hotel Royal. Mr. Choate also had in his 
possession a letter of the twenty-second of January, in 
the plaintiff's handwriting and addressed to Mr. del 
Valle at the inception of their acquaintance, which read, 
" Should you deem it necessary to write to me, a line ad- 
dressed ' Miss Howard, in care of J. Krank, 1060 First 
Avenue,' will reach me." In anticipation of this testi- 
mony, Mr. Choate next interrogated the witness as 
follows : — 

Mr. Choate. "Did you ever go by any other name 
than your own father's name, Martinez, or your step- 
father's name, Henriques .? " 

Miss Martinez. " I did not." 

Mr. Choate. " Did you ever have letters left for you 
directed to ' Miss Howard, care of J. Krank, No. 1060 
First Avenue'.?"^ 

Miss Martinez. " I never did." 

Mr. Choate. " Do you know No. 1060 First Avenue ? ** 

Miss Martinez. " I do not. I have no idea where 
it is." 

Mr. Choate. " Do you know what numbers on First 
Avenue are near to your house on 56th Street .? " 

* Mr. Choate took as one theme for his summing up : " The woman who 
possesses an alias in the big cities of the world." 

24s 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " I do not. I never went on First 
Avenue." 

Mr. Choate. " Did you ever have any letters sent to 
you addressed to ' Miss Howard, care of Mrs. C. Nelson,' 
on Ninth Avenue.-^" 

Miss Martinez. " I never did." 

Here Mr. Choate again treads upon the toes of the 
witness' veracity, but it is difficult to see why he did not 
confront her then and there with her own letter. By 
adopting such a course he took no chances whatever. 
He would have dealt her a serious blow in the eyes of 
the jury. Instead, Mr. Choate contents himself by put- 
ting this letter in evidence, while the defendant himself 
was on the witness-stand, and the jury never really saw 
the point of it until the summing up, when their heads 
were so full of other things that this serious prevarica- 
tion of the plaintiff probably went almost unnoticed.^ 

^ ^ ^ ^ ^ ^ ^ Hz 

Mr. Choate. " At the meeting when Mr. del Valle 
brought the ring to your house, was anybody present ? " 
Miss Martinez. " Nobody was present." 
Mr. Choate. "And I have forgotten how long you 
said it was that you kept the ring before returning it to 
him.?" 

Miss Martinez. " I never told you any stated time." 
Mr. Choate. " Well, I would like to know now." 

^ The jury remained locked up for twenty-six hours unable to agree upon a 
verdict, several of them voting for large damages. 

246 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Marti7iez. " I returned the ring to him when I 
dissolved the engagement between him and me — about 
a week or so after I had received the ring." 

Mr. Choate. " Then it was only a week that the en- 
gagement lasted at first before it was resumed the 
second time ? " 

Miss Martinez. " Well, I think so." 

The plaintiff had already read in evidence to the 
jury a fabricated copy of a letter breaking her engage- 
ment to the defendant, and returning him the ring. 
There had been no such letter in fact handed to Mr. 
del Valle, but the plaintiff had substituted this alleged 
copy for a letter, the original of which Mr. Choate had 
in his possession, which was the one already referred 
to, wherein the plaintiff had complained of the brutal 
solicitations of her stepfather, and had requested him 
not to read until he was alone. 

Mr. Choate. " Now you have spoken of the circum- 
stances under which you returned him the ring in a 
letter, with injunctions not to open the letter until you 
separated. What was your purpose in requiring him 
not to open the letter until he should be out of your 
presence .? " 

Miss Martinez. " Because I knew if I told him what 
my purpose was, he would not accept of it. He would 
not dissolve the engagement between us, and I wished 
him to see that I was determined upon it. That was 
my purpose." 

247 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " Was not the fact of the ring being in 
the letter quite obvious from the outside?" 

Miss Martinez. "It was, and he asked me what it 
was." 

Mr. Choate. " Where was it that you handed him 
that letter?" 

Miss Martinez. " When we were dining." 

Mr. Choate. " At what place ? Was it this place you 
have just mentioned, — Solaris ? " 

Miss Martinez. " Yes, sir." 

Mr. Choate. " How many times had you been there 
then ? " 

Miss Martinez. " We went there after our engage- 
ment very frequently." 

Mr. Choate. " Was that your regular place of meeting 
after your engagement?" 

Miss Martinez. " Sometimes we went to Delmonico's ; 
more frequently we went to Solari's." 

Mr. Choate. " And it was there that you handed him 
the letter? How long before going there had. you 
written the letter ? " 

Miss Martinez. " It was written the day after he 
spoke to me of having a compromise in Cuba. The 
very day after, I made up my mind to break the 
engagement." 

Mr. Choate. " Tell me, if you please, all that he said 
when he spoke about this compromise." 

Miss Martinez. " Well, we were coming home in a 

248 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

carnage, and he asked me when we should be married, 
and I told him I did not know ; that I was not thinking 
of it yet for some time, and he said that when we should 
be married, he would like to be married privately, with- 
out anybody knowing anything about it. That he had 
a good many friends here in New York and people that 
were apt to talk, and he requested me to marry him 
privately and at once." 

Mr. Choate. " Did he say that he already had a wife 
as a ' compromise ' ? " 

Miss Martinez. " He did not." 

Mr. Choale. " Did he explain in any way what this 
' compromise,' as you call it, was } " 

Miss Martinez. "He merely told me, ' Oh, there is 
no secrecy. I have a compromise in Cuba — some 
trouble there, for reasons best known to myself,' but 
that it was better to marry privately." 

Mr. Choate. " Did you believe he had another wife 
living in Cuba ? " 

Miss Martinez. " No." 

Mr. Choate. " What was there that you supposed 
could prevent a man marrying again if he loved a 
woman, as he said he did you, except the existence of a 
wife already ? " 

Miss Martinez. "Well, I thought perhaps he had 
some alliance with some woman whom he had promised 
to marry, or was obliged to marry, and could not marry 
any other woman under those circumstances." 

249 



THE ART OF CROSS-EXAMINATION 

Mr. CJioate. " He did not suggest anything of that 
sort ? " 

Miss Marti7tez. " That was only the impression that I 
received at the time, — what I thought." 

Mr. Choate. " And you never had any other impres- 
sion but that, had you ? " 

Miss Martinez. " No, I had not." 

Mr. Choate. " When you concluded to take him again, 
it was under that impression ? " 

Miss Martinez. " Not at all. He told me that the 
compromise was arranged and had been adjusted. I 
took him again and became engaged to him." 

Mr. Choate. " Your idea of the nature of the com- 
promise when you took him again was that he had been 
engaged to another woman in Cuba and promised to 
marry her. Is that it ? " 

Miss Martinez. " Yes, sir, it was something of that 
kind." 

Mr. Choate. " Then when you concluded to take back 
the ring, it was upon the understanding that he had 
broken an engagement with a woman in Cuba. Did 
it not occur to you as an obstacle, when you took him 
again, that he had just broken a match with another 
woman } " 

Miss Martiitez. " No, not at all." 

Mr. Choate. " You did not care for that ? " 

Miss Martinez. " No. I did not care for it, because 
I trusted him." 

250 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate. " How often did Mr. del Valle visit you 
at this time ? " 

Miss Martinez. " Four or five times a week." 

Mr. Choate. " Did you and your mother keep these 
visits of this gentleman and the engagement a secret 
from your stepfather ? " 

Miss Martinez. " We did." 

Mr. Choate. " And that because of his threat to shoot 
you and the man if you ever married t " 

Miss Martinez. " Yes, sir." 

Mr. Choate. " Had your father kept weapons ready } " 

Miss Martinez. " Well, no, I do not think he did." 

Mr. Choate seems to have changed his mind suddenly 
upon the advisability of introducing the atrocious step- 
father's letter. This was the wrong time to introduce it, 
if at all, and his feeble attempt was productive of noth- 
ing but a hasty retreat upon his own part. 

Mr. Choate. " Did you ever make any complaint to 
Mr. del Valle of being harshly treated by your step- 
father ? " 

Miss Martinez. " I never did. My father never treated 
me harshly." 

Mr. Choate. " I want you to look at this signature 
and see whether that is yours on the paper now handed 
you " (passing a paper to witness). 

Miss Martinez. " I could not say whether it is mine 
or not." 

Mr. Choate. " What is your opinion .? " 

251 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " I do not think it is. It does not 
look like my signature." 

^fp ^ "f? ^ 'tP "T^ ^ W? 

Mr. Choate. " How is it that you have produced here 
a copy of the letter in which you say you enclosed the 
ring in February or March. How is that ? " 

Miss Martijiez. " I do not know. I merely found a 
copy one day in a book. I never made a practice of 
copying." 

Mr. Choate. " When and where did you make the 
copy of that letter ? " 

Miss Martinez. " I did not make any copy of it after 
I had sent the letter to Mr. del Valle, but the paper 
upon which I wrote was defective when I wrote it to 
him. There was a blot or something on it, and I found 
the copy afterwards ! " 

Mr. Choate. " Then you do know exactly how you 
came to have a copy.?" 

Miss Martinez. " Yes, it was in my desk drawer, that 
is all, but I did not make a practice of keeping copies of 
all the papers." 

Mr. Choate. " Did you not say a moment ago that 
you did not know how you came to have a copy } " 

Miss Martinez. " No ; I did not say I did not know 
how I came to have a copy." 

Mr. Choate. "In what respect did this copy differ 
from the original enclosing the ring ? " 

Miss Martinez. " It did not differ. I only said there 

252 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

was a blot upon the paper and I put it into a drawer and 
wrote another one, and that paper remained blotted in 
the drawer for a considerable length of time." 

Mr, Choate. " What part of the paper was the blot 
on ? " 

Miss Marti7iez. " The first page." 

Mr. Choate (handing the letter to the witness). 
" Whereabouts do you see the blot?'''' 

Miss Martinez. " Oh, well, it is not on the copy at all." 

Mr. Choate. " Oh, you sent the blotted one .? " 

Miss Martinez. " No, I did not. I kept the blotted 
one in the drawer. I did not send that." 

Mr. Choate. " Where is the blotted one ? " 

Miss Martinez. " I have it at home. I have a copy 
of all these letters at home." 

Mr. Choate. " Then you made a second copy from 
that blotted copy .? " 

Miss Marti7iez. " I did." 

Mr. Choate put one question too many by asking, 
" Where is the blotted one t " The effect of his pre- 
vious questions concerning this fabricated copy of a 
letter was entirely lost by allowing her a chance to 
reply, " I have the blotted copy at home. I have a 
copy of all these letters at home." The reply was false, 
but had she been called upon to produce the blotted 
copy she could have easily supplied it over night. Mr. 
Choate had made his point, a good one, but he didn't 
leave it alone and so spoiled it. 

253 



THE ART OF CROSS-EXAMINATION 

All through his examination Mr. Choate skipped from 
one subject to another, and then, without any apparent 
reason, returned to the same subject again. This may- 
have been intentional art on his part or it may have been, 
as is so often the case in the excitement of a long trial, 
that new ideas occurred to him which brought him back 
to old subjects that had apparently already been ex- 
hausted. It would have been far more intelligible to 
the jury to have exhausted one subject at a time. It is 
asking too much of an ordinary juryman to shift his 
attention back and forth from one subject to another 
and expect him to catch all the points and carry clearly 
in his memory all that has been previously said on the 
subject. This mistake is almost unavoidable unless 
the cross-examination is thought out thoroughly in 
advance, which, of course, is sometimes impracticable, 
as perhaps in the present case. 

It was part of the plaintiff's evidence that Mr. del 
Valle had induced her to leave her home and go to 
the Hotel Royal under an assumed name until he 
could engage a house in the country where she could 
live as the governess to his children, pending their mar- 
riage, and on a salary of $ioo a month.^ She said 

^ Mr. Choate cross-examined the plaintiff at length on this part of the 
case and in his summing up exclaimed, "Well, outlandish foreigners have 
done all sorts of things, and men have various ways of looking at the same 
thing, but here is a point and here is a question at which I think there are no 
two ways of looking, and that is that it is contrary to the common instincts 
of mankind, and a libel upon the common instincts of woman, that when 

254 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. del Valle's object was to avoid the threat of her 
stepfather to shoot any man to whom she might become 
engaged. Mr. del Valle's own version of the story 
was that Miss Martinez went to the Hotel Royal of 
her own accord; notified him that she was there, that 
she had deserted her home in consequence of her step- 
father's advances to her, and that she was afraid to 
return. She then begged him to allow her to teach 
his children and to live with him in the country. Evi- 
dently it was with these facts in mind that Mr. Choate 
cross-questioned the plaintiff as follows: — 

Mr. Choate. " Now you say. Miss Martinez, that you 
went to the hotel on the twenty-eighth day of April } " 

Miss Martinez. " I did." 

Mr. Choate. " From where did you go } " 

Miss Martinez. " From my own home." 

Mr. Choate. " Did you know anybody at that hotel ? " 

Miss Martinez. " I did not." 

Mr. Choate was prepared to show that the plaintiff 
was acquainted with the clerk of the Hotel Royal, a man 
by the name of Frederick Hammond, who on several 
occasions was seen by the bell-boys in her room at the 
Hotel Royal, at which times the door of her bedroom 

a betrothal has taken place between a fair and unsophisticated virgin and a 
man of any description, that in the interval between the betrothal and the 
wedding ceremony, he should take her to his house and she should consent to 
go upon a salary of $ioo a month, to serve in the capacity of a housekeeper, 
I leave the argument upon the point with you." 

255 



THE ART OF CROSS-EXAMINATION 

was locked. The defendant's evidence subsequently 
showed, also, that many of the letters sent to the plain- 
tiff under the name of Miss Howard, and addressed to 
different letter boxes on First Avenue, etc., had on the 
envelope the monogram " F. H." (Frederick Hammond). 

Mr. Choate. " Did you know any of the managers or 
clerks at the Hotel Royal ? " 

Miss Martinez. " I did not." 

Mr. Choate. " Did you register your name at that 
hotel .? " 

Miss Marti7tez. " I just merely gave my name as 
' Miss Livingston.' I did not register. I suppose I was 
registered." (The name " Miss Livingston" registered on 
the hotel register was in the handwriting of this same 
Frederick Hammond.) 

Mr. Choate. " To whom did you give your name as 
' Miss Livingston ' 1 " 

Miss Martinez. " To a gentleman whom I saw be- 
fore taking board there. I went to arrange for a room 
the day before, and he asked me my name and showed 
me a room and I told him my name was ' Miss Living- 
ston,' and he put it down." 

Mr. Choate. " Who was that gentleman } " 

Miss Martinez. " I do not know who he was, or 
what he was." 

Mr. Choate. " Do you know a gentleman named 
Frederick Hammond 1 " 

Miss Martinez. '* My receipts were signed that way, 

256 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

by the name of Hammond. Mr. del Valle told me 
that he was acquainted with some of the managers of 
the hotel, and it was that hotel that he suggested my 
going to." 

Mr. Choate. " You went by his suggestion .? " 

Miss Martinez. " Went by his suggestion to this 
hotel." 

Mr. Choate. " Did he tell you of Frederick Ham- 
mond } " 

Miss Martinez. " He did not. He merely said that 
he knew some of the managers." 

Mr. Choate. " You say that Hammond was the name 
signed to your receipt ? " 

Miss Martinez. " Yes, sir." 

Mr. Choate. " Was that the name of the gentleman 
to whom you gave your name as ' Miss Livingston ' } " 

Miss Martinez. " I really do not know." 

Mr. Choate. " Was it anybody you had ever seen 
before ? " 

Miss Martinez. *' I had never seen the person before 
in my life."^ 

Mr. Choate. *' And you do not know how or by 
whom your name was registered in that hotel book } " 

^ Mr. Choate, in his argument to the jury, said : " They went to her room 
on two separate occasions and found her there with Mr. Hammond with the 
door locked, Mr. Hammond sitting on the bed. This might have been ex- 
plained had she not already said in her cross-examination that she did not 
know Mr. Hammond. Now how do they meet it ? " 



THE ART OF CROSS-EXAMINATION 

Miss Marthiez. " I do not know. The gentleman 
merely asked me my name and I told him. I told him 
the room would suit me, and I would come the next 
day." 

Mr. Choate. " Then you went alone both days 1 " 

Miss Martinez. " I did." 

Mr. Choate. " And both times without the de- 
fendant ? " 

Miss Martinez. " Without the defendant." 

Mr. Choate. " You selected a room that suited you ? " 

Miss Martinez. " I did. On the top floor. It was 
the only room that was available." 

It was shown later that this room was a small-sized 
hall bedroom, and yet Miss Martinez was supposed to 
have made this arrangement with this hotel at the re- 
quest of her w^ealthy affianced husband. In speaking of 
this in his summing up, Mr. Choate says : — 

" That does not look like Mr. del Valle's generous ac- 
commodations. Mr. del Valle was profuse, lavish. She 
had the richest meats, the finest terrapin, wines of her own 
choice, always, at Solari's. But here in a little four-by- 
ten room, in the fourth story of the Hotel Royal, — why, 
gentlemen, that looks to me a little more like Fred- 
erick Hammond, who wrote her name in the hotel 
register ! " 

Mr. Choate. " Did the defendant select this name of 
Livingston for you ? " 

Miss Martinez. " He merely told me to take an as- 

258 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

sumed name, — to go under some other name, — and 
I chose the name of Livingston." 

The purpose of this line of questions was shown in 
the summing up to have been as follows : — 

" Now, gentlemen, you have all been married, I infer 
from your appearance. \_Laugkler.'\ You have been 
through this mill of an engagement to be married. No 
matter what kind of a man he is, — he may be as bad as 
men are ever made, or from that all the way to the next 
grade below the archangels, — and I put it to you on your 
judgment and common sense and your conscience, that 
you cannot find a man who would take the betrothed of 
his heart, the woman whom he had chosen to be his wife, 
and the mother of his children, who would take her to a 
hotel in the city of New York to live for a longer or 
shorter period under an assumed name. 

" The plaintiff went to this hotel by the name of 
' l^Wirvgstone.' It was a good selection ! She says Del 
Valle did not choose that name. She had already 
passed by the name under which she could claim the 
blood of all the Howards, but now she claimed alliance 
with the noble stock of Livingstons." 

Mr. Choate. " Did you object to it when he told you 
to go there under an assumed name } " 

Miss Martinez. " No, I did not." 

Mr. Choate. " You were entirely willing to go to a 
strange hotel alone under an assumed name ? " 

Miss Martinez. " Yes. For a short while." 

259 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " I wish you would tell us again precisely 
what it was that induced you to go to this strange hoteJ 
under such circumstances ? " 

Miss Martinez. " Well, Mr. del Valle suggested that 
perhaps it would be better for me. He did not wish to 
have any trouble with my stepfather concerning my dis- 
appearance, neither did I wish to give him any unneces- 
sary trouble if my father should take any violent steps of 
any kind, as he had so often threatened to do, and he 
suggested that I should take a room somewhere at some 
hotel, and see how papa would act." 

Mr. Choate. " How was papa to know anything about 
it if you were under an assumed name } " 

Miss Martiiiez. " Well, he certainly would know 
something about it when I left home." 

Mr. Choate. " And the plan was that he should know 
about it } " 

Miss Martinez. " Should know what ? " 

Mr. Choate. " Should know that you had gone ? ** 

Miss Marti7tez. " Why, of course." 

Mr. Choate. " To this hotel ? " 

Miss Martinez. " No, not to the hotel. He knew that 
I had left home, and my fear was that he would hire 
detectives to search for me, and of course, if he discov- 
ered me in Mr. del Valle's home, I could not answer for 
the consequences." 

Mr. Choate. " What consequences did you appre- 
hend.?" 

260 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " I apprehended that he would kill 
Mr. del Valle and kill me." 

Mr. Choate. " And rather than that, you were willing 
to go to this hotel in this manner .? " 

Miss Marti^iez. " Certainly, Mr. del Valle suggested 
it."i 

Mr. Choate. " Do you know whether your father did 
do anything because of your leaving ? " 

Miss Martinez. " Yes, I know that he put a personal 
in the Herald for me." 

Mr. Choate. " Did you show this ' personal ' to Mr. 
del Valle .? " 

Miss Martinez. " I showed it to him." 

Mr. Choate. " Did you discover it in the Herald? " 

Miss Martinez. " I did." 

Mr. Choate. " The 'personal' in the Herald of the sec- 
ond day of May, or about five days after you had reached 
the hotel, is contained in this paper which I now show 
you, isn't it ? " 

Miss Martinez. " Yes." 

Mr. Choate. " Now after the second day of May, 
therefore, you knew that this ' personal ' had come from 
your father, didn't you } " 

Miss Martinez. " I did." 

Mr. Choate. " After you knew that your father * was 

^All through the discussion of the plaintiff's testimony, Mr. Choate kept 
exclaiming to the jury in his final argument, " What sort of an engaged yoang 
lady is this I " 

261 



THE ART OF CROSS-EXAMINATION 

inconsolable and would make all satisfactory,' you did 
not have any more fear of his shooting you or Mr. del 
Valle either, did you ? " 

Miss Martinez. " I most certainly did. My father 
was not to be relied upon in what he said at all. He 
said a great many things which he never meant." 

Mr. Choate. " Do you mean that he did not have a 
good reputation for veracity } " 

Miss Martinez. " Not at all. But I knew that he had 
always threatened to shoot me and my husband, if I ever 
had one, and I knew that he would not make ' all satis- 
factory,' and that is why I did not return home." 

Mr. Choate. " Did you answer this ' personal ' } " 

Miss Martinez. " I did not." 

Mr. Choate. " Did you take any notice of your un- 
happy father 1 " 

Miss Martinez. " I did not." 

Mr. Choate. " Made no effort to console him ? " 

Miss Martinez. " I did not. I loved Mr. del Valle, 
and went with Mr. del Valle and trusted him. I had 
nothing to do with my father. My father had many 
others to console him." 

Mr. Choate. "While you were at the Hotel Royal 
did you make a visit to the Central Park with Mr. del 
Valle ? " 

Miss Martinez. " Yes, frequently we went up to the 
Park and walked all round. It was the only chance I 
had of going out — when he took me up there." 

262 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate. " Do you remember anything you told 
him at that time ? " 

Miss Martinez. " Nothing in particular." 
Mr. Choate. " Did you tell him that your stepfather 
had been using you brutally ? " 

Miss Martinez. " I did not. I never told him any 
such thing." 

Mr. Choate. *' Did you say that you had to leave 
home and 2:0 to the hotel because of the bad treatment 
of your stepfather ? " 

Miss Martijiez. " I never did tell him so." 
Mr. Choate. " Did you ever tell anybody that ? " 
Miss Marti^iez. " I could never tell any one so, be- 
cause my stepfather never treated me badly." 

Later in the trial Mrs. Quackenbos testified on the 
part of the defendant that while she was visiting Mr. 
del Valle's summer home at Poughkeepsie, she was 
introduced to the plaintiff as " Miss Henriques, the 
housekeeper," and that during the conversation that 
followed she expressed her surprise at seeing so young a 
lady in that position. Whereupon the plaintiff had re- 
plied that she "had a mystery attached to her life, which 
she would tell Mrs. Quackenbos and perhaps she would 
then think differently." She testified that the plaintiff 
had told her that her mother had married her uncle, and 
that she lived very unhappily at home owing to her step- 
father's constant overtures to her; that her stepfather 
was enamored of her ; that the plaintiff in making this 

263 



THE ART OF CROSS-EXAMINATION 

confession had used these words, " That is why I am 
here, madame. My mamma asked Mr. del Valle to take 
me from my home." The plaintiff told Mrs. Quacken- 
bos that it was impossible for her to remain at home ; 
that she was almost exhausted from fighting for her 
honor; and that her mother had begged Mr. del Valle 
to take her away. In speaking of this evidence in the 
summing up, Mr. Choate said: — 

" Why, she said, gentlemen, that she had been driven 
from her home by the amorous persecutions of her step- 
father, and that her mother had besought Mr. del Valle 
to take her to his house as his governess and house- 
keeper. You can't rub that out, gentlemen, if you 
dance on it all night with India-rubber shoes ! " 

JlU 4U ^ ^ ^ ^ ^ jl. 

Mr. Choate. " When was it that the arrangements 
were completed and the family moved to the summer 
home in Poughkeepsie } " 

Miss Martinez. " The ist of June." 

Mr. Choate. " Did you go direct to Poughkeepsie 
with Mr. del Valle and his children 1 " 

Miss Martinez. " I did." 

Mr. Choate. " Now, I understand you that until the 
end of the first week of your stay at Mr. del Valle 's 
house in Poughkeepsie, that is until this 6th of June 
which you have spoken about, and from the 14th of 
January, when you first made Mr. del Valle's acquaint- 
ance, he was uniformly kind and courteous .? " 

264 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. "Always." 

Mr. Choate. "And there was not the least symptom 
of impropriety in his conduct towards you ? " 

Miss Martinez. " Never, sir. He never offered me 
the slightest indignity on any occasion." 

Mr. Choate. "And no approach towards impropriety 
on his part .? " 

Miss Martinez. " Never. Not on any single occasion. 
Not a breath of it." 

Mr. Choate. " As to this occurrence of the 6th of 
June, I understand you to say that after breakfast you 
went up to your room and lay down .? " 

Miss Martinez. " I did." 

Mr. Choate. " And I understand you to say that was 
your usual habit ? " 

Miss Martijiez. " Yes, sir. It was not an everyday 
habit ; it was more of a Sunday habit." 

Mr. Choate. " What time of the day did you have 
breakfast on that Sunday?" 

Miss Martinez. " At eleven o'clock in the morn- 
ing." 

Mr. Choate. " How do you fix the date 1 " 

Miss Martinez. " I think it is a day in a woman's life 
that she can never forget." ^ 

^ Mr. Choate had in his hand at the time of this examination a letter 
written by Adele, the plaintiflTs sister, who had just left Poughkeepsie, where 
she had been making a visit, and in which she referred to her sister as being 
"as happy as a queen." This letter was later offered in evidence. 

265 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " And you fix it as your first Sunday 
in Poughkeepsie ? " 

Miss Marti7iez. " I do." 

Mr. Choate. " Who were the members of the house- 
hold at that time on that day ? Who were they besides 
yourself and Mr. del Valle ? " 

Miss Martinez. " There were the two younger chil- 
dren, Mr. Alvarez, and the servants." 

Mr. Choate. " How many servants were there } ** 

Miss Martinez. " There were seven servants." 

Mr. Choate. "And your room was where?" 

Miss Martinez. " My room was on the same floor with 
the family and Mr. del Valle's and the children's, and 
next to the nurse and the two younger children, — all 
the children, in fact." 

Mr. Choate. " Now at breakfast who were present 
that morning ? " 

Miss Martinez. " The children, Mr. Alvarez, Mr. del 
Valle, and myself." 

Mr. Choate. " What time was it you finished break- 
fast.?" 

Miss Martinez. " About half-past eleven or a quar- 
ter to twelve, perhaps twelve o'clock; I do not re- 
member." 

Mr. Choate. " And how soon after you had finished 
breakfast did you go to your room .? " 

Miss Martinez. " Immediately after." 

Mr. Choate. " Did you go alone ? " 

266 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Marti7tez. " I did." 

Mr, Choate. "What did you do?" 

Miss Martinez. " I lay on my bed reading. I could 
hear the children downstairs. They were on the ve- 
randa. I heard their voices as they went away from 
the house with the nurse-" 

Mr. Choate. " You remained on your bed, did you ? " 

Miss Martinez. " I did. I was interested in my 
book and I commenced to read." 

Mr. Choate. " Did you remain upon the bed from 
the time you first took your place upon it until 
Mr. del Valle had accomplished what you charged 
upon him yesterday t " 

Miss Martinez. " I did." 

Mr. Choate. " And were not off the bed at all .? " 

Miss Martiitez. " I was not. I had partially arisen 
when he entered." 

Mr. Choate. " The door of your room opened into 
the centre of the house, did it not } " 

Miss Martinez. " It did." 

Mr. Choate. " Did you close the door?" 

Miss Martinez. " I did." 

Mr. Choate. " Did you lock it ? " 

Miss Martinez. " I did not." 

Mr. Choate. " Did you hear any other sound before 
Mr. del Valle appeared in your room ? " 

Miss Martinez. " I did not. Merely the children's 
receding voices in the distance." 

267 



THE ART OF CROSS-EXAMINATION 

Mr, Choate. " This was a warm summer day, was 
it not?" 

Miss Martinez, " It was. The sixth of June." 

Mr. Choate. " Were the windows open ? " 

Miss Martinez. " Yes." 

Mr. Choate. "Did Mr. del Valle knock upon the 
door?" 

Miss Martinez. " He did not." 

Mr. Choate. " You heard the door open ? " 

Miss Martinez. " I did." 

Mr. Choate. " You saw him enter ? " 

Miss Martinez. " I did." 

Mr. Choate. '* And were you lying upon the bed?" 

Miss Martinez. " I was." 

Mr. Choate. " Did you get up from the bed ? " 

Miss Martinez. " I just attempted to rise." 

Mr. Choate. " Who prevented you ? " 

Miss Martinez. " He came over to me and sat down 
on the side of the bed." 

Mr. Choate. " Did he shut the door? " 

Miss Martinez. " He did." 

Mr. Choate. "While he was doing that did you at- 
tempt to rise ? " 

Miss Martinez. " I did." 

Mr. Choate. " Why didn't you rise ? " 

Miss Martinez. " Because I could not. He came 
over to me before I had partially risen." 

Mr. Choate, " Do you mean to say that in the time 

268 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

of his coming in and presenting himself and opening 

and shutting the door, there was not time for you to 

spring up from the bed ? " 

Miss Martmez. " There was not, because he was 

already half in the room before I heard that he was 

in. I was engaged in reading at the time, and he had 

opened the door very softly." 

Mr. CJwate. " Was there time for you to begin to 

start from the bed ? " 

Miss Martinez. " Well, I do not know. I did not 

study the time." 

Mr. Choate. " How long was he in your room that 

morning } " 

Miss Martinez. " I cannot say exactly." 

Mr. Choate. " You can say whether he was there an 

hour, or two hours, or half an hour } " 

Miss Martinez. " Well, he was there about an hour." 
Mr. Choate. " Did you make an outcry while he was 

in the room .? " 

Miss Martinez. " No, I did not scream." 

Mr. Choate. " Did not attempt to scream, did you } " 

Miss Martinez. " No, I did not attempt to scream. 

I remonstrated with him." 

Mr. Choate. " Did you speak in a loud voice ? " 
Miss Martinez. " Well, not to be heard all over 

the house, but if anybody had been in the room he 

would have heard me." 

Mr. Choate, " Did you speak low } " 

269 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " Lower than I am speaking now." 

Mr. Choate. " You did not make any effort to make 
yourself heard by anybody in the house, or outside ? " 

Miss Martinez. " No, I was not afraid of Mr. del 
Valle. I did not think he came into my room to murder 
me, nor to hurt me." 

Mr. Choate. " You found out, according to your story, 
what he did come for, after a while, didn't you } " 

Miss Martinez. " Yes." 

Mr. Choate. " And before he accomplished his pur- 
pose ? " 

Miss Martinez. " Yes." 

Mr. Choate. " Now, didn't you speak above a low 
voice then ? " ' 

Miss Martinez. " Well, perhaps I did." 

Mr. Choate. " Well, did you ? " 

Miss Marti7tez. " I think I did." 

Mr. Choate. " Well, did you scream out } " 

Miss Martinez. " I did not." 

Mr. Choate. " Did you call out .? " 

Miss Martinez. " I did not." 

Mr. Choate. " Did you speak loud enough to be heard 
by any of the servants below, or anybody in the hall 
or on the veranda } " 

Miss Martinez. " I do not think anybody could have 
heard me." 

Mr. Choate. " Why didn't you cry out .? " 

Miss Martinez. " Because — he told me not to." 

270 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate, " Oh, he told you not to ? " 

Miss Martmez. " Yes." 

Mr, Choate. " Then it was a spirit of obedience to 

him." 

Miss Martijiez. " Just as you please to look upon it." 
Mr. Choate. '"Just as I please to look upon it'.?" 

Well, I look upon it so. Now you say that you do not 

think he had any evil purpose when he came into the 

room ? " 

Miss Martinez. " No, I cannot believe he did." 

Mr. Choate. " And you do not think so now ? " 

Miss Martinez. " Oh, I do think so now, certainly." 

Mr. Choate. "You did not think so then.?" 

Miss Marti^iez. " No, I did not when he entered the 

room." 

Mr. Choate. " There was nothing indicating an evil 

purpose on his part t " 

Miss Martinez. " No, I do not think so." 

Mr. Choate. " How long had he been there before 

there was anything on his part that indicated to you 

any evil intent } " 

Miss Martinez. " About fifteen minutes." 

Mr. Choate. " Before you had the least idea of any 

evil intent on his part ? " 

Miss Martinez. " Well, I did not then think he had 

any evil intent." 

Mr. Choate. "Were you fully dressed that morning.?" 
Miss Martinez. " Fully dressed." 

271 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. '* And fully dressed when he came into 
the room ? " 

Miss Martinez. " Fully dressed." 

Mr. Choate. "Just as you had been at breakfast?" 

Miss Martinez. " Just the very same." 

Mr. Choate, " You were lying on the bed. Where 
was he 1 " 

Miss Martinez. " He was also on the bed." 

Mr. Choate. "Sitting by your side.?" 

Miss Martinez. " Yes." 

Mr. Choate. " And you and he were engaged in 
conversation, were you ? " 

Miss Martinez. " We were." 

Mr. Choate. " Sometime during that hour you became 
partly undressed, I suppose. When was that } " 

Miss Martinez. " How do you know I became partly 
undressed? " 

Mr. Choate. " I judge so from what you have stated. 
I beg your pardon. Did you, or did you not ? " 

Miss Martinez. " No, I did not become undressed. 
Merely Mr. del Valle took my belt off. I had a wrapper 
on. I had a black silk belt." 

Mr. Choate, " You had a belt ? H ow was that secured .? " 

Miss Martinez. " Just merely by hook and eye. It 
was a black silk ribbon belt." 

Mr. Choate. " And that became unhooked } " 

Miss Martinez. " It did not become unhooked ; Mr, 
del Valle unhooked it." 

272 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate. " What was it you did when he unhooked 
the belt ? Did you cry out ? " 

Miss Martinez. " No, I did not cry out. I told you 
I made no outcry whatever." 

Mr. Choate had made his point. Immediately the 
idea flashed across his mind that if he stopped here 
he had one of the opportunities of his life for the sum- 
ming up. This is how he made use of it : — 

" Gentlemen of the jury : This is not a story of Lucre- 
tia and Tarquin, who came with his sword. Oh, no, 
there was not any sword. They conversed together. 
There is not a word as to what was said, and after a 
while, the story is, he unbuckled her belt and then it 
was all over ! On the unloosening of her belt, she went 
all to pieces ! Gentlemen, my question to you, which 
I want you to take to the jury room and answer, is 
whether, under such circumstances, by the mere un- 
doing of that hook and eye, and the unloosening of 
that belt, a woman would go all to pieces unless there 
was something of a very loose woman behind the belt ! 
All the household was there. Why did she not cry 
out 1 Why did she not raise that gentle-tempered voice 
of hers a little 1 A silent seduction, by her own story ! " 

^t, ^L. ^L, ^t, At, ^ ^ M. 

Mr. Choate. " Now, Miss Martinez, you have spoken 
of your father being sometime or other informed of your 
having gone to Poughkeepsie, and did you also under- 
stand that he was informed of your project of marriage } " 
s 273 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " Yes, sir, he was." 

Mr. Choate. " Did he come up with his revolver ? *' 

Miss Martinez. " He did not." 

Mr. Choate. " Did he make any effort to see you ? " 

Miss Martinez. " No, he did not." 

Mr. Choate. " Did he make any effort to see Mr. del 
Valle?" 

Miss Martinez. " He did not." 

Mr. Choate. " He appeared at Poughkeepsie after a 
while, did he not } " 

Miss Martinez. " Yes, he did. My mother revealed 
the fact to him that I was at Poughkeepsie and engaged 
to be married to Mr. del Valle, and insisted upon his 
acting reasonably." 

Mr. Choate. " And he did act reasonably, did he not .? " 

Miss Martinez. " He did." 

Mr. Choate. " He came up making visits? " 

Miss Martinez. " He did." 

Mr. Choate. " Was Mr. del Valle at home ? " 

Miss Martinez. "He was." 

Mr. Choate. " And you were there } " 

Miss Martinez. " I was." 

Mr. Choate. " Did you see the meeting between your 
father and Mr. del Valle t " 

Miss Martinez. " I did. I introduced my father to 
Mr. del Valle." 

Mr. Choate. " Everything was agreeable and pleasant, 

was it.?" 

274 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " Very pleasant indeed." 

Mr. Choate. " And your father stayed to dinner?" 

Miss Martinez. "He did." 

Mr. Choate. " Did he make any threats 1 " 

Miss Martinez. "He did not." 

Mr. Choate. " Did he exhibit any violence ? " 

Miss Martinez. "He did not." 

Mr. Choate. " Then all your fears proved to have been 
unfounded, didn't they ? " 

Miss Martinez. " Not at all." 

Mr. Choate. " You think that after all, if you had 
married Mr. del Valle, he would have carried his threats 
into execution .? " 

Miss Martinez. " I think he would, most certainly." 

Mr. Choate. " And yet he came up pleasantly and 
spent the day with Mr. del Valle and you at Mr. del 
Valle's house, knowing that you were living in his 
house ? " 

Miss Martinez. " Yes." 

Mr. Choate. " Upon a promise of marriage ? " 

Miss Martinez. " He did." 

Mr. Choate. " Did he try to dissuade you from marry- 
ing.?" 

Miss Martinez. " He did not." 

Mr. Choate. " And yet you think that if you married, 
he would have shot you and Mr. del Valle ? " 

Miss Martinez. " I do most certainly think so." 

275 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " Miss Martinez, did you write a letter, 
dated September 8, to Mr. del Valle ? " ^ 

Miss Martinez. " I did." 

Mr. Choate. " Is this the letter which I now show 
you i 

Miss Martinez. " Well, it may be, but I would not 
swear to it." 

Mr. Choate. " Will you swear it is not ? " 

Miss Martinez. " No, I would not swear it is not." 

Mr. Choate. " In this letter you say, ' I have been 
very happy in your house ' } " 

Miss Martinez. " Yes." 

Mr. Choate. " That was true, was it not } " 

Miss Martinez. " It was very true." 

Mr. Choate. " During that period was it true that 
you were ' very happy ' in his house ? " 

Miss Martinez. " Until the 6th of June, the Sunday I 
told you about a little while ago." 

Mr. Choate. " That was four days ? " 

Miss Martinez. " Well, that was some time." 

Mr. Choate. "You got there on the night of the ist, 
didn't you ? " 

Miss Martinez. " Yes, I did." 

Mr. Choate. " And your happiness came to an end on 
the morning of the 6th ? " 

^ The student's attention is directed to this extremely clever use, in cross- 
examination, of a letter which was wholly inconsistent with the story of her 
stay at Poughkeepsie, which the plaintiff had already sworn to. 

276 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " Yes, it did." 

Mr. Choate. " And that was what you meant when 
you wrote, ' I have been very happy in your house ' ? " 

Miss Martinez. " I did, and up to the time when I 
heard of the compromise not being adjusted." 

Mr. Choate. " Oh, you were very happy till then } " 

Miss Martinez. " Yes." 

Mr. Choate. " ' I will always think of the many happy 
hours spent with you.' What did you mean by ' the 
many happy hours ' } " 

Miss Martiiiez. " What did I mean by it .? " 

Mr. Choate. " Yes, what hours did you mean ? " 

Miss Martinez. " I meant the hours that I spent with 
Mr. del Valle and which were happy." 

Mr. Choate. " Before the 6th of June ? " 

Miss Martinez. " Yes." 

Mr. Choate. " And none after.? " 

Miss Martijiez. " Not many." 

Mr. Choate. " Then your object in writing this letter 
was to thank him for the many happy hours spent with 
him between the afternoon of the ist of June, when 
you arrived, and the morning of the 6th of June, 
was it?" 

Miss Martinez. "It was." 

Mr. Choate. " ' And which were the only ones I have 
ever known.' What did you mean by that, — to com- 
pare the hours of those four days of June with all the 

previous hours of your life ? " 

277 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " I meant with all the previous hours 
of my life — I had never been happy in all my life." 

Mr. Choate. " As in those four days ? " 

Miss Martinez. " No." 

Mr. Choate. " What was it that prevented your being 
equally happy from the time of your engagement down 
to the ist of June ? " 

Miss Martinez. " Oh, I don't think it was a very 
happy state of mind I was in, to be engaged to Mr. del 
Valle and could not see him as I wished to, occasionally 
in the evenings. I was restricted." 

Mr. Choate. " It was the restrictions that were placed 
upon your seeing Mr. del Valle, and yet you saw him 
eight times a week, I think you testified, and every day 
you spent hours in his company t " 

Miss Martinez. " Not every day." 

Mr. Choate. " Well, whenever you met } " 

Miss Martinez. " Yes." 

Mr. Choate. "And you were alone together.?" 

Miss Martinez. " We were." 

Mr. Choate. " And his conduct towards you during 
all these hours was absolutely unquestionable t " 

Miss Martinez. " Unquestionable." 

Mr. Choate. " Why, then, did you say that the hours 
of the 2d, 3d, 4th, and 5th of June that you spent 
with him, were the only happy hours that you had ever 
known compared with the previous hours spent with 
Mr. del Valle.?" 

278 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " It was just merely from the fact 
that my father's manner and way towards me made 
me always unhappy." 

Mr. Choate. " That is, the fear that your father, if he 
found it out, would shoot you and your intended ? " 

Miss Martinez. "It was." 

Mr. Choate. "You still had that fear during the 2d, 
'i^^, 4th, and 5th of June, it seems, didn't you? " 

Miss Martinez. " No, I didn't have that fear as much 
as I had." 

Mr. Choate. " You said that was not dissipated until 
your father's second visit in August." 

Miss Martinez. " So it was not, but I did not have as 
much fear then as I had before." 

Mr. Choate. " Oh, because your father was in New 
York and you at Poughkeepsie 1 " 

Miss Martinez. " Yes." 

Mr. Choate. " ' I leave it to God to grant you the 
reward you so much deserve, and which is impossible 
for you to receive on this earth.' Reward for what, 
do you mean t " 

Miss Martinez. " Oh, I had a conversation with Mr. 
del Valle before I wrote that letter to him." 

Mr. Choate. " I am asking you now the meaning of 
this letter. What acts and conduct of his was it, taken 
all together, that you left it to God to reward him for, 
because it was impossible for him to have any reward on 
earth for it .? " 

279 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " I did not mean at all what I 
wrote." 

Mr. Choate. " Oh, you did not mean what you 
wrote ? " 

Miss Martinez. " No, I did not. I merely wished to 
keep Mr. del Valle as my friend." 

Mr. Choate. " Are you in the habit now of writing 
what you do not mean ? " 

Miss Martinez. " I am certainly not in the habit." 

Mr. Choate. " But this you did not mean at all, did 
you t 

Miss Martinez. " Oh, I meant some of it, some I 
didn't." 

Mr. Choate. " How much of it did you mean ? Did 
you mean that you ' left it to God to grant the reward 
he so much deserved ' ; or did you mean ' that it was 
impossible for him to receive that reward on earth ' } 
Which part of it did you mean ? " 

Miss Martinez. " I meant no part of that." 

Mr. Choate. " Did you understand that Mr. del Valle 
was to come and see you in New York .? " 

Miss Martinez. " I did, certainly." 

Mr. Choate. " And so you understood when you 
wrote this letter ? " 

Miss Martinez. " I did." 

Mr. Choate. " Now you began, ' My dear friend, it 
may be that I may never see you again.' What did 
you mean by that ? " 

280 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " Because I doubted his word, and 
thought perhaps I should never see Mr. del Valle again, 
treating me as he had." 

Mr. Choate. " You doubted his word, and you wrote 
him what you did not mean at all. Does that represent 
the real state of the relations between you at that 
time.?" 

Miss Martinez. " Well, the relations between us at 
the time would be very difficult indeed to define." 

Mr. Choate. " I will complete the first sentence, 
' still, I feel that I cannot leave your house without 
thanking you for all your kindness to me.' " 

Miss Martinez. " Mr. del Valle always was very kind 
to me, always." 

Mr. Choate. " And you thought that, taking his whole 
conduct together from the beginning to the end of your 
stay, it was incumbent upon you not to leave without 
thanking him for all his kindness to you. Is that so.? " 

Miss Martinez. " Yes." 

Mr. Choate. " And you meant that, didn't you .? " 

Miss Martinez. " Well, no, I didn't mean it exactly." 

Mr. Choate. " ' I have been very happy in your 
house.' Did you mean that .? " 

Miss Martinez. " I was very happy in his house and 
I was very miserable." 

Mr. Choate. " After you got to New York, Mr. del 
Valle did not come to see you .? " 

Miss Martinez. "He did not." 

281 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " And you have never seen him since 
until you saw him in this court room ? " 
Miss Martinez. " I have not." 

*d£. 4f, 4{. *J£. .U. 4C 4^ 

TT ■TV' Tt* Tt* -IP tF tF 

J/r. Choate. " In those visits to Solari's you spoke of 
the other day, did you always have a private room, no 
one being present but yourselves and the waiter ? " 

Miss Martinez. " We did have a private room." 

Mr. Choate. " Did you always have the same room ? " 

Miss Martinez. " No, not always." 

Mr. Choate. " How many different private rooms 
should you think you had at Solari's ? " 

Miss Martinez. " I can't tell you how many different 
ones, — perhaps two or three." 

Mr. Choate. " Was Mr. del Valle's demeanor to you 
on such occasions the same as it was when you were 
in your mother's house and in the street, and in public 
places like the opera and matinee } " 

Miss Martinez. " Always the same in a private room 
as he was at home when my mother was not there. He 
used to kiss me frequently, but he never kissed me at 
matinees, nor did he kiss me in the street. Our inter- 
course and behavior, therefore, must have been dif- 
ferent." 

Mr. Choate. " Otherwise it was the same .? " 

Miss Martinez. " Always most respectful." 

Mr. Choate. " As to his kisses, of course you made 
no objection } " 

282 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Miss Martinez. " None at all." 

Mr. Choate. " How long were these interviews at 
Solari's, — these meetings when you went there and had 
a private room generally ? " 

Miss Marti^iez. " They varied in length. Sometimes 
we arrived there at two o'clock and remained until four, 
— sometimes we arrived there a little earlier." 

Mr. Choate. " About a couple of hours." 

Miss Marti7iez. " Two or three hours." 

Mr. Choate. " What were you doing all that time } " 

Miss Martinez. " We were eating." 

Mr. Choate. " What, not eating all the time } " 

Miss Martinez. " Eating all the time." 

Mr. Choate. " Two hours eating ! Well, you must 
have grown fat during that period ! " 

Miss Martinez. " Well, perhaps you eat much quicker 
than I do." 

Mr. Choate. " You think you ate all that time } " 

Miss Martinez. " Well, I do not say we gormandized 
continually." 

Mr. Choate. " But pretty constantly eating ; that was 
the only business ? " 

Miss Martinez. " First we had our dinner and then 
there was a digression of about half an hour before we 
called for dessert. That perhaps took up another hour." 

Mr. Choate. " During that ' digression ' what did you 
generally do ? " 

Miss Martinez. " We used to talk." 

283 



THE ART OF CROSS-EXAMINATION 

Mr. CJioate. " How did Mr. del Valle progress with 
his English ? " 

Miss Martinez. *' Very well indeed. Remarkably 
well." 

Mr. Choate. " Did you practise English at Solari's.?" 

Miss Martinez. " Yes, frequently." 

Mr. Choate. " That was a pretty constant occupation 
at all your meetings in those private rooms at Solari's, 
wasn't it, — practising or speaking English.?" 

Miss Martinez. " We frequently spoke about the 
rules of the language." 

Mr. Choate. " Did his English during these intervals 
improve ? " 

Miss Martinez. " I think it did." 

Mr. Choate. " And you did all you could to improve 
it, I suppose } " 

Miss Martinez. " Undeniably so." 

Mr. Choate. " You even had a book of conversation 
with you .? " 

Miss Martinez. " We had." 

Mr. Choate. " And did he make great efforts at those 
times to improve and advance his English } " 

Miss Martinez. " I believe he did." 

Referring in his summing up to this part of the 
examination, Mr. Choate said : — 

" What I am endeavoring to show you, gentlemen, is 
that the action of the parties does not confirm this idea 
of a promise of marriage, because from what you have 

284 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

heard of this place, from the sentiment which has made 
itself apparent in this court room whenever the name 
Solari was mentioned, I think you will bear me out in 
saying that it is not a place where ladies and gentle- 
men go for courtship with a view to matrimony. From 
what you know of the place, if you had made the ac- 
quaintance of a young woman and become betrothed 
to her, is it to Solari's you would go to do your court- 
ing with a view to matrimony? All of us, every jury- 
man, will say ' No,' and will you not judge the 
defendant as you judge yourselves? 

" The defendant was tickled, attracted, and pleased. 
Here was a woman who could speak his own language 
and they could pick up the broken fragments of his 
English and her Spanish, and put them together, and 
he liked nothing better, and so they went to Solari's ! 

"Well, gentlemen, I do not know anything about 
Solari's except what is shown here upon the evidence. 
So far as I can make out, however, people go to Solari's 
for all sorts of purposes. Men go there with ladies, 
ladies with ladies, men with men, theatre parties, family 
parties, matinee parties, — all sorts of parties, — and these 
parties went there together. But under the develop- 
ments of this case, Solari's assumes new importance 
and acquires a new fame. It is no longer a mere res- 
taurant. It is no longer a mere place of refreshment 
for the body, where you can get meat and wine and 
whatever is pleasant for the inner mind ; it now attains 

285 



THE ART OF CROSS-EXAMINATION 

celebrity as a new school of learning, patronized, brought 
into notice, by my client and the fair plaintiff as a place 
where you can go to drink of the Fountain of Knowl- 
edge. \Laughter^ They had a ' Guide to Conversation.' 
" I think the fair plaintiff said that there were ' digres- 
sions ' there. They ate and drank, — she thinks they ate 
and drank for two hours at a time, but I compelled her 
to say that there was an intermediate ' digression.' 
What there was in the digressions does not exactly 
appear ; for one thing, there was this ' Guide to Con- 
versation,' but there were limits even to the regions to 
which this Guide led them, for they both agreed that it 
did not bring them even to the vestibule of Criminal 
Conversation, which is a very important point to con- 
sider in connection with the history of these meetings 
at Solari's." \Roars of laughter^ 

Mr. Choate. " During the period of your engagement 
from early in February down to the time of going to 
Poughkeepsie, did you ever, while with Mr. del Valle, 
fall in with any of his friends or acquaintances } " 

Miss Martinez. " I did, on several occasions." 

Mr. Choate. " Were you introduced 1 " 

Miss Martinez. " No, but on one occasion some of his 
friends were at the matinee." ^ 

* When speaking of this phase of the case to the jury, Mr. Choate said, " I 
will say this, that where there is a betrothal, the parties do give some symp- 
toms of it sooner or later. You cannot prevent their showing it, and there is 

286 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Mr. Choate. " Were you introduced to them there, 
and if so, who were they ? " 

Miss Martinez. " I was not." 

Mr. Choate. " During the period of this engagement, 
as you say, to you, did he introduce you at all to any- 
body?" 

Miss Martinez. " During the period of our engage- 
ment ? " 

Mr. Choate. " Yes." 

Miss Martinez. " No, I think not." 

Mr. Choate. " Then he certainly did not introduce 
you to anybody as his intended wife } " 

Miss Martinez. " He did not. I was not introduced 
to anybody." 

Mr. Choate. " When you were at Poughkeepsie did 
any person come to the house to make a visit t " 

Miss Martinez. " They did." 

Mr. Choate. " Were you introduced to them ? " 

Miss Marthiez. " I was." 

Mr. Choate. " By whom .? " 

Miss Martinez. " By Mr. del Valle." 

Mr. Choate. " How ? " 

Miss Martinez. " As the instructress of his children, 
or governess, or something of that kind." 

Mr Choate. " Never in all that time did he introduce 
you to anybody as his intended wife ? " 

no suggestion of evidence that anybody saw these parties together acting 
towards each other as though they were engaged." 

287 



THE ART OF CROSS-EXAMINATION 

Miss Martinez. " No, he did not wish anybody to 
know it, he said." 

Mr. Choate. " When did he say that ? '* 

Miss Martinez. " He told me so when he expected 
Mrs. Quackenbos' visit before she arrived." 

Mr. Choate. " That was some three months after your 
engagement .? " 

Miss Marti^iez. "It was." 

Mr. Choate. " He did not intimate for the first three 
months a desire that nobody should know, did he } " 

Miss Marti7iez. " He never said a word to me about 
any one's knowing anything about it." 

Mr. Choate. " And if there was any concealment, it 
was not on his part .? " 

Miss Marti^iez. " It was not, nor on my part either." 

Mr. Choate. " Nor his desire t " 

Miss Martinez. " Nor on my part either." 

This gave Mr. Choate an opportunity for this final 
shaft at the plaintiff in his summing up : — 

" You see, gentlemen, what an immense advantage it 
would be for her, for this family, if they could make 
this 'consolidated Virginia,' in the form of my client, 
their own. They had no possible means of support ; he 
hove in sight, a craft laden, as they supposed, with treas- 
ure for themselves. If there had been this engagement 
of marriage, the world would have heard of it. I don't 
mean the World newspaper — it hears of everything — 
but all the world that surrounds the Henriques and 

288 



CROSS-EXAMINATION BY JOSEPH H. CHOATE 

Martinez family. The news would have spread that 
they had captured a prize and brought it into court for 
condemnation ! " 

After deliberating for twenty-six hours the jury re- 
turned a verdict in favor of the plaintiff, and assessed 
the damages at $50. 



CHAPTER XIII 

THE CROSS-EXAMINATION OF RICHARD PIGOTT BY SIR CHARLES 
RUSSELL BEFORE THE PARNELL COMMISSION 

Probably one of the most dramatic and successful of 
the more celebrated cross-examinations in the histor}' 
of the English courts is Sir Charles Russell's cross- 
examination of Pigott, the chief witness in the investi- 
gation groxs-ing out of the attack upon Charles S. Parnell 
and sixt}-five Irish members of Parliament, by name, for 
belonging to a lawless and even murderous organization, 
whose aim was the overthrow of English rule. 

This cross-examination is in marked contrast with the 
method used by Mr. Choate in his cross-examination of 
the plaintiff in the Martinez case in the preceding chapter. 
During the entire cross-examination of Miss Martinez, 
Mr. Choate carefully concealed from her the fact that he 
had in his p>ossession a letter written by her, with which 
he intended to and did destroy her, in his summing up. 

But here the opposite method was adopted by Sir 
Charles Russell, and after adroitly leading Pigott to 
commit himself irretrie\'ably to certain absolute state- 
ments, RusseU suddenly confronted him with his own 
letters in a wav that was masterlv and deadlv to Pieott 

T^he case is also an admirable illustration of the 

290 



CROSS-EXAMINATION OF RICHARD PIGOTT 

importance of so using a damaging letter that a dishonest 
witness cannot escape its effect by ready and ingenious 
explanations, when given an opportunity, as is often done 
by an unskilful cross-examiner. Attention has already 
been drawn to this vital point in the chapter upon the 
proper " Sequence of Cross-Examination." The cross- 
examination of Pigott shows that Sir Charles Russell 
thoroughly understood this branch of the art, for he 
read to Pigott only a portion of his damaging letter, and 
then mercilessly impaled him upon the sharp points of 
his questions before dragging him forward in a bleeding 
condition to face other portions of his letter, and repeated 
the process until Pigott was cut to pieces. 

The principal charge against Parnell, and the only one 
that interests us in the cross-examination of the witness 
Pigott, was the writing of a letter by Parnell which the 
Times claimed to have obtained and published in 
facsimile, in which he excused the murderer of Lord 
Frederick Cavendish, Chief Secretary for Ireland, and of 
Mr. Burke, Under Secretary, in Phoenix Park, Dublin, 
on May 6, 1882. One particular sentence in the letter 
read, " I cannot refuse to admit that Burke got no more 
than his deserts." 

The publication of this letter naturally made a great 
stir in Parliament and in the countrv' at large. Parnell 
stated in the House of Commons that the letter was a 
forgery, and later asked for the appointment of a select 
committee to inquire whether the facsimile letter was 

291 



THE ART OF CROSS-EXAMINATION 

a forgery. The Government refused this request, but 
appointed a special committee, composed of three judges, 
to investigate all the charges made by the Times. 

The writer is indebted again to Russell's biographer, 
Mr. O'Brien, for the details of this celebrated case. 
Seldom has any legal controversy been so graphically 
described as this one. One seems to be living with 
Russell, and indeed with Mr. O'Brien himself, through- 
out those eventful months. We must content ourselves, 
however, with a reproduction of the cross-examination 
of Pigott as it comes from the stenographer's minutes 
of the trial, enlightened by the pen of Russell's facile 
biographer. 

Mr. O'Brien speaks of it as " the event in the life of 
Russell — the defence of Parnell." In order to under- 
take this defence, Russell returned to the Times the 
retainer he had enjoyed from them for many previous 
years. It was known that the Times had bought the 
letter from Mr. Houston, the secretary of the Irish 
Loyal and Patriotic Union, and that Mr. Houston had 
bought it from Pigott. But how did Pigott come by 
it.'' That was the question of the hour, and people 
looked forward to the day when Pigott should go into 
the box to tell his story, and when Sir Charles Russell 
should rise to cross-examine him. Mr. O'Brien writes: 
" Pigott's evidence in chief, so far as the letter was con- 
cerned, came practically to this : he had been employed 
by the Irish Loyal and Patriotic Union to hunt up 

292 



CROSS-EXAMINATION OF RICHARD PIGOTT 

documents which might incriminate Parnell, and he had 
bought the facsimile letter, with other letters, in Paris 
from an agent of the Clan-na-Gael, who had no objection 
to injuring Parnell for a valuable consideration. . . . 

" During the whole week or more Russell had looked 
pale, worn, anxious, nervous, distressed. He was impa- 
tient, irritable, at times disagreeable. Even at luncheon, 
half an hour before, he seemed to be thoroughly out of 
sorts, and gave you the idea rather of a young junior 
with his first brief than of the most formidable advocate 
at the Bar. Now all was changed. As he stood facing 
Pigott, he was a picture of calmness, self-possession, 
strength ; there was no sign of impatience or irritabil- 
ity ; not a trace of illness, anxiety, or care ; a slight tinge 
of color lighted up the face, the eyes sparkled, and a 
pleasant smile played about the mouth. The whole 
bearing and manner of the man, as he proudly turned 
his head toward the box, showed courage, resolution, 
confidence. Addressing the witness with much courtesy, 
while a profound silence fell upon the crowded court, he 
began : ' Mr. Pigott, would you be good enough, with 
my Lords' permission, to write some words on that sheet 
of paper for me } Perhaps you will sit down in order to 
do so .? ' A sheet of paper was then handed to the wit- 
ness. I thought he looked for a moment surprised. 
This clearly was not the beginning that he had ex- 
pected. He hesitated, seemed confused. Perhaps Rus- 
sell observed it. At all events he added quickly: — 

293 



THE ART OF CROSS-EXAMINATION 

*' ' Would you like to sit down ? ' 

" ' Oh, no, thanks,' replied Pigott, a little flurried. 

" The Presideni. ' Well, but I think it is better that 
you should sit do\vn„ Here is a table upon which you 
can write in the ordinary way — the course you always 
pursue.' 

" Pigott sat down and seemed to recover his equi- 
librium. 

" Russell. ' Will you write the word " livelihood " .? ' 

" Pigott wrote. 

''Russell 'Just leave a space. Will you write the 
word " likelihood " ? ' 

" Pigott wrote. 

" Russell * Will you write your own name ? Will 
you write the word " proselytism," and finally (I think 
I will not trouble you at present with any more) " Pat- 
rick Egan " and " P. Egan " ? ' 

" He uttered these last words with emphasis, as if they 
imported something of great importance. Then, when 
Pigott had written, he added carelessly, ' There is one 
word I had forgotten. Lower down, please, leaving 
spaces, write the word *' hesitancy." ' Then, as Pigott 
was about to write, he added, as if this were the vital 
point, ' with a small " h." ' Pigott wrote and looked 
relieved. 

" Russell ' Will you kindly give me the sheet ? * 

" Pigott took up a bit of blotting paper to lay on 
the sheet, when Russell, with a sharp ring in his voice, 

294 



CROSS-EXAMINATION OF RICHARD PIGOTT 

said rapidly, 'Don't blot it, please.' It seemed to me 
that the sharp ring in Russell's voice startled Pigott. 
While writing he had looked composed; now again he 
looked flurried, and nervously handed back the sheet. 
The attorney general looked keenly at it, and then said, 
with the air of a man who had himself scored, ' My 
Lords, I suggest that had better be photographed, if 
your Lordships see no objection.' 

''Russell (turning sharply toward the attorney general, 
and with an angry glance and an Ulster accent, which 
sometimes broke out when he felt irritated). ' Do not 
interrupt my cross-examination with that request' 

" Little did the attorney general at that moment know 
that, in the ten minutes or quarter of an hour which it 
had taken to ask these questions, Russell had gained a 
decisive advantage. Pigott had in one of his letters to 
Pat Egan spelt ' hesitancy ' thus, ' hesitency.' In one of 
the incriminatory letters ' hesitancy ' was so spelt ; and 
in the sheet now handed back to Russell, Pigott had 
written ' hesitency,' too. In fact it was Pigott 's spelling 
of this word that had put the Irish members on his 
scent. Pat Egan, seeing the word spelt with an ' e ' in 
one of the incriminatory letters, had written to Parnell, 
saying in effect, ' Pigott is the forger. In the letter 
ascribed to you " hesitancy " is spelt " hesitency." That 
is the way Pigott always spells the word.' These things 
were not dreamt of in the philosophy of the attorney 
general when he interrupted Russell's cross-examination 

295 



THE ART OF CROSS-EXAMINATION 

with the request that the sheet 'had better be photo- 
graphed.' So closed the first round of the combat. 

" Russell went on in his former courteous manner, and 
Pigott, who had now completely recovered confidence, 
looked once more like a man determined to stand to his 
guns. 

" Russell, having disposed of some preliminary points 
at length (and after he had been perhaps about half an 
hour on his feet), closed with the witness. 

" Russell. ' The first publication of the articles " Par- 
nellism and Crime " was on the 7th March, 1887.? ' 

" Pigott (sturdily), ' I do not know.' 

" Russell (amiably). ' Well, you may assume that is the 
date.' 

" Pigott (carelessly). ' I suppose so.' 

"■Russell. 'And you were aware of the intended 
publication of the correspondence, the incriminatory 
letters t ' 

" Pigott (firmly). ' No, I was not at all aware of it.' 

" Russell (sharply, and with the Ulster ring in his 
voice). ' What .'' ' 

*' Pigott (boldly). ' No, certainly not.' 

" Russell ' Were you not aware that there were grave 
charges to be made against Mr. Parnell and the leading 
members of the Land League } ' 

" Pigott (positively). ' I was not aware of it until they 
actually commenced.' 

296 



CROSS-EXAMINATION OF RICHARD PIGOTT 

^^Russell {2ig3.\r\ with the Ulster ring). 'What?' 

" Pigott (defiantly). ' I was not aware of it until the 
publication actually commenced.' 

" Russell (pausing, and looking straight at the witness). 
* Do you swear that 1 ' 

" Pigott (aggressively). ' I do.' 

" Russell (making a gesture with both hands, and look- 
ing toward the bench). ' Very good, there is no mistake 
about that.' 

" Then there was a pause ; Russell placed his hands 
beneath the shelf in front of him, and drew from it some 
papers — Pigott, the attorney general, the judges, every 
one in court looking intently at him the while. There 
was not a breath, not a movement. I think it was the 
most dramatic scene in the whole cross-examination, 
abounding as it did in dramatic scenes. Then, handing 
Pigott a letter, Russell said calmly : — 

'" Is that your letter.? Do not trouble to read it; tell 
me if it is your letter.' 

" Pigott took the letter, and held it close to his eyes 
as if reading it. 

''Russell (sharply). ' Do not trouble to read it.' 

''Pigott. 'Yes, I think it is.' 

" Russell (with a frown). ' Have you any doubt of it } ' 

"Pigott. 'No.' 

"Russell (addressing the judges). 'My Lords, it is 
from Anderton's Hotel, and it is addressed by the wit- 
ness to Archbishop Walsh. The date, my Lords, is the 

297 



THE ART OF CROSS-EXAMINATION 

4tli of March, three days before the first appearance of 
the first of the articles, " Parnellism and Crime." ' 

" He then read : — 

" ' Private and confidential.' 

" ' My Lord : — The importance of the matter about 
which I write will doubtless excuse this intrusion on 
your Grace's attention. Briefly, I wish to say that I 
have been made aware of the details of certain proceed- 
ings that are in preparation with t4ie object of destroying 
the influence of the Parnellite party in Parliament.' 

" Having read this much Russell turned to Pigott and 
said : — 

" ' What were the certain proceedings that were in 
preparation ? ' 

" Pigott. ' I do not recollect.* 

" Russell (resolutely). ' Turn to my Lords and repeat 
the answer.' 

" Pigott. ' I do not recollect' 

" Russell. ' You swear that — writing on the 4th of 
March, less than two years ago } ' 

''Pigott. 'Yes.' 

" Russell. ' You do not know what that referred to ? * 

" Pigott. ' I do not really.' 

" Russell. ' May I suggest to you ? * 

" Pigott. ' Yes, you may.' 

" Russell. ' Did it refer to the incriminatory letters 
among other things ? ' 

" Pigott. ' Oh, at that date ? No, the letters had not 

298 



CROSS-EXAMINATION OF RICHARD PIGOTT 

been obtained, I think, at that date, had they, two years 
ago?' 

" Russell (quietly and courteously). ' I do not want to 
confuse you at all, Mr. Pigott.' 

" Pigott. ' Would you mind giving me the date of 
that letter.?' 

''Russell ' The 4th of March.' 

''Pigott. 'The 4th of March.' 

" Russell. ' Is it your impression that the letters had 
not been obtained at that date t ' 

" Pigott. ' Oh, yes, some of the letters had been ob- 
tained before that date.' 

" Russell. ' Then, reminding you that some of the 
letters had been obtained before that date, did that pas- 
sage that I have read to you in that letter refer to these 
letters among other things 1 ' 

" Pigott. ' No, I rather fancy they had reference to 
the forthcoming articles in the Times'. 

"Russell (glancing keenly at the witness). ' I thought 
you told us you did not know anything about the forth- 
coming articles.' 

"Pigott (looking confused). 'Yes, I did. I find now 
I am mistaken — that I must have heard something 
about them.' 

" Russell (severely). * Then try not to make the same 
mistake again, Mr. Pigott. " Now," you go on (continu- 
ing to read from Pigott's letter to the archbishop), " I 
cannot enter more fully into details than to state that the 

299 



THE ART OF CROSS-EXAMINATION 

proceedings referred to consist in the publication of cer- 
tain statements purporting to prove the compHcity of 
Mr. Parnell himself, and some of his supporters, with 
murders and outrages in Ireland, to be followed, in all 
probability, by the institution of criminal proceedings 
against these parties by the Government." ' 

" Having finished the reading, Russell laid down the 
letter and said (turning toward the witness), ' Who told 
you that } ' 

" Pigott. ' I have no idea.' 

" Russell (striking the paper energetically with his 
fingers). ' But that refers, among other things, to the 
incriminatory letters.' 

" Pigott. ' I do not recollect that it did.' 

^*' Russell {sN\i\\ energy). 'Do you swear that it did not.?' 

" Pigott. ' I will not swear that it did not.' 

" Russell. ' Do you think it did ? ' 

" Pigott. ' No, I do not think it did.' 

" Russell. ' Do you think that these letters, if genuine, 
would prove or would not prove Parnell's complicity in 
crime } * 

" Pigott. ' I thought they would be very likely to 
prove it.' 

" Russell. ' Now, reminding you of that opinion, I ask 
you whether you did not intend to refer — not solely, I 
suggest, but among other things — to the letters as being 
the matter which would prove complicity or purport to 
prove complicity } ' 

300 



CROSS-EXAMINATION OF RICHARD PIGOTT 

^^ Pigott. 'Yes, I may have had that in my mind.* 

" Russell. ' You could have had hardly any doubt that 
you had ? ' 

" Pigott. ' I suppose so.' 

" Russell ' You suppose you may have had } ' 

''Pigott. 'Yes.' 

" Russell ' There is the letter and the statement 
(reading), " Your Grace may be assured that I speak with 
full knowledge, and am in a position to prove, beyond all 
doubt and question, the truth of what I say." Was that 
true } ' 

" Pigott. ' It could hardly be true.' 

" Russell. ' Then did you write that which was false ? ' 

" Pigott. ' I suppose it was in order to give strength 
to what I said. I do not think it was warranted by what 
I knew.' 

" Russell. ' You added the untrue statement in order 
to add strength to what you said ? ' 

''Pigott. 'Yes.' 

" Russell. ' You believe these letters to be genuine } * 

"Pigott. ' I do.' 

" Russell ' And did at this time ? ' 

"Pigott. 'Yes.' 

" Russell (reading). ' " And I will further assure your 
Grace that I am also able to point out how these designs 
may be successfully combated and finally defeated." How, 
if these documents were genuine documents, and you be- 
lieved them to be such, how were you able to assure his 

301 



THE ART OF CROSS-EXAMINATION 

Grace that you were able to point out how the design 
might be successfully combated and finally defeated ? ' 

" Pigott. ' Well, as I say, I had not the letters actually 
in my mind at that time. So far as I can gather, I do 
not recollect the letter to Archbishop Walsh at all. My 
memory is really a blank on the circumstance.' 

" Russell. ' You told me a moment ago, after great 
deliberation and consideration, you had both the in- 
criminatory letters and the letter to Archbishop Walsh 
in your mind.' 

" Pigott. ' I said it was probable I did ; but I say the 
thing has completely faded out of my mind.' 

" Russell (resolutely). ' I must press you. Assuming 
the letters to be genuine, what were the means by which 
you were able to assure his Grace that you could point 
out how the design might be successfully combated and 
finally defeated t ' 

" Pigott (helplessly). ' I cannot conceive really.' 

" Russell. ' Oh, try. You must really try.' 

" Pigott (in manifest confusion and distress). ' I cannot.' 

" Russell (looking fixedly at the witness). ' Try.' 

" Pigott. ' I cannot.' 

''Russell 'Try.' 

" Pigott. ' It is no use.' 

" Russell (emphatically). ' May I take it, then, your 
answer to my Lords is that you cannot give any ex- 
planation ? ' 

" Pigott. ' I really cannot absolutely.' 

302 



CROSS-EXAMINATION OF RICHARD PIGOTT 

•* Russell (reading). * " I assure your Grace that I have 
no other motive except to respectfully suggest that youi 
Grace would communicate the substance to some one 
or other of the parties concerned, to whom I could fur- 
nish details, exhibit proofs, and suggest how the coming 
blow may be effectually met." What do you say to 
that, Mr. Pigott ? ' 

" Pigott. ' I have nothing to say except that I do not 
recollect anything about it absolutely.' 
" Russell. ' What was the coming blow .? ' 
" Pigott. ' I suppose the coming publication.* 
^''Russell. ' How was it to be effectively met.? * 
" Pigott. ' I have not the slightest idea.' 
" Russell ' Assuming the letters to be genuine, does 
it not even now occur to your mind how it could be 
effectively met ? ' 
''Pigott. 'No.' 

" Pigott now looked like a man, after the sixth round 
in a prize fight, who had been knocked down in every 
round. But Russell showed him no mercy. I shall 
take another extract. 



" Russell ' Whatever the charges in " Parnellism and 
Crime," including the letters, were, did you believe them 
to be true or not ? ' 

" Pigott. ' How can I say that when I say I do not 
know what the charges were ? I say I do not recollect 

303 



THE ART OF CROSS-EXAMINATION 

that letter to the archbishop at all, or any of the circum* 
stances it refers to.' 

" Russell. ' First of all you knew this : that you pro- 
cured and paid for a number of letters ? ' 

'' Pigott. *Yes.' 

" Russell. * Which, if genuine, you have already told 
me, would gravely implicate the parties from whom these 
were supposed to come. ' 

" Pigott. ' Yes, gravely implicate.* 

" Russell. ' You would regard that, I suppose, as a 
serious charge ? ' 

''Pigott. 'Yes.' 

" Russell. ' Did you believe that charge to be true or 
false .? ' 

" Pigott. ' I believed that charge to be true.* 

" Russell. ' You believed that to be true 1 * 

" Pigott. * I do.' 

" Russell. ' Now I will read this passage [from Pigott's 
letter to the archbishop], " I need hardly add that, did 
I consider the parties really guilty of the things charged 
against them, I should not dream of suggesting that 
your Grace should take part in an effort to shield them ; 
I only wish to impress on your Grace that the evi- 
dence is apparently convincing, and would probably 
be sufficient to secure conviction if submitted to 
an English jury." What do you say to that, Mr. 
Pigott ? ' 

" Pigott (bewildered). * I say nothing, except that I am 

304 



CROSS-EXAMINATION OF RICHARD PIGOTT 

sure I could not have had the letters in my mind when I 
said that, because I do not think the letters conveyed a 
sufficiently serious charge to cause me to write in that 
way.' 

" Russell. ' But you know that was the only part of 
the charge, so far as you have yet told us, that you had 
anything to do in getting up ? ' 

" Pigott. ' Yes, that is what I say ; I must have had 
something else in my mind which I cannot at present 
recollect — that I must have had other charges.' 

" Russell ' What charges ? ' 

" Pigott. ' I do not know. That is what I cannot tell 
you.' 

" Russell. ' Well, let me remind you that that particu- 
lar part of the charges — the incriminatory letters — 
were letters that you yourself knew all about.' 

" Pigott. ' Yes, of course.' 

''Russell (reading from another letter of Pigott's to 
the archbishop). ' " I was somewhat disappointed in not 
having a line from your Grace, as I ventured to expect 
I might have been so far honored. I can assure your 
Grace that I have no other motive in writing save to 
avert, if possible, a great danger to people with whom 
your Grace is known to be in strong sympathy. At the 
same time, should your Grace not desire to interfere in 
the matter, or should you consider that they would refuse 
me a hearing, I am well content, having acquitted myself 
of what I conceived to be my duty in the circumstances. 
u 305 



THE ART OF CROSS-EXAMINATION 

I will not further trouble your Grace save to again beg 
that you will not allow my name to transpire, seeing that 
to do so would interfere injuriously with my prospects, 
without any compensating advantage to any one. I 
make the request all the more confidently because I have 
had no part in what is being done to the prejudice of 
the Parnellite party, though I was enabled to become 
acquainted with all the details." ' 

" Pigott (with a look of confusion and alarm). ' Yes.' 

" Russell. ' What do you say to that ? ' 

" Pigott. ' That it appears to me clearly that I had 
not the letters in my mind.' 

" Russell. ' Then if it appears to you clearly that you 
had not the letters in your mind, what had you in your 
mind 1 ' 

" Pigott. * It must have been something far more 
serious.' 

" Russell. ' What was it 1 ' 

" Pigott (helplessly, great beads of perspiration stand- 
ing out on his forehead and trickling down his face). ' I 
cannot tell you. I have no idea.' 

" Russell. ' It must have been something far more 
serious than the letters ? ' 

" Pigott (vacantly). ' Far more serious.' 

" Russell (briskly). ' Can you give my Lords any clew 
of the most indirect kind to what it was } ' 

" Pigott (in despair). ' I cannot.' 

•' Russell. ' Or from whom you heard it? ' 

306 



CROSS-EXAMINATION OF RICHARD PIGOTT 

" Pigott. ' No.' 

^'Russell. ' Or when you heard it?* 

" Pigott. ' Or when I heard it.' 

" Russell. ' Or where you heard it ? ' 

" Pigott. ' Or where I heard it' 

" Russell ' Have you ever mentioned this fearful mat- 
ter — whatever it is — to anybody 1 ' 

" Pigott. ' No.' 

" Russell. ' Still locked up, hermetically sealed in your 
own bosom ? ' 

" Pigott. ' No, because it has gone away out of my 
bosom, whatever it was.' 

" On receiving this answer Russell smiled, looked at 
the bench, and sat down. A ripple of derisive laughter 
broke over the court, and a buzz of many voices followed. 
The people standing around me looked at each other 
and said, ' Splendid.' The judges rose, the great crowd 
melted away, and an Irishman who mingled in the 
throng expressed, I think, the general sentiment in a 
single word, ' Smashed.' " 

Pigott 's cross-examination was finished the following 
day, and the second day he disappeared entirely, and 
later sent back from Paris a confession of his guilt, 
admitting his perjury, and giving the details of how he 
had forged the alleged Parnell letter by tracing words 
and phrases from genuine Parnell letters, placed against 
the window-pane, and admitting that he had sold the 
forged letter for ^605. 

307 



THE ART OF CROSS-EXAMINATION 

After the confession was read, the Commission " found " 
that it was a forgery, and the Times withdrew the 
facsimile letter. 

A warrant was issued for Pigott's arrest on the charge 
of perjury, but when he was tracked by the police to a 
hotel in Madrid, he asked to be given time enough to 
collect his belongings, and, retiring to his room, blew out 
his brains. 



308 



CHAPTER XIV 

THE CROSS-EXAMINATION OF DR. IN THE CARLYLE W. 

HARRIS CASE 

The records of the criminal courts in this country- 
contain few cases that have excited so much human in- 
terest among all classes of the community as the prose- 
cution and conviction of Carlyle W. Harris. 

Even to this day — ten years after the trial — there is 
a widespread belief among men, perhaps more especially 
among women, who did not attend the trial, but simply 
listened to the current gossip of the day and followed 
the newspaper accounts of the court proceedings, that 
Harris was innocent of the crime for the commission of 
which his life was forfeited to the state. 

It is proposed in this chapter to discuss some of the 
facts that led up to the testimony of one of the most distin- 
guished toxicologists in the country, who was called for 
the defence on the crucial point in the case ; and to give 
extracts from his cross-examination, his failure to with- 
stand which was the turning-point in the entire trial. 
He returned to his home in Philadelphia after he left the 
witness-stand, and openly declared in public, when asked 

309 



THE ART OF CROSS-EXAMINATION 

to describe his experiences in New York, that he had 
" gone to New York only to make a fool of himself and 
return home again." 

It is also proposed to give some of the inside history 
of the case — facts that never came out at the trial, not 
because they were unknown at the time to the district 
attorney, nor unsusceptible of proof, but because the 
strict rules of evidence in such Cases often, as it seems 
to the writer, withhold from the ears of the jury certain 
facts, the mere recital of which seems to conclude the 
question of guilt. For example, the rule forbidding the 
presentation to the jury of anything that was said by 
the victim of a homicide, even to witnesses surrounding 
the death-bed, unless the victim in express terms makes 
known his own belief that he cannot live, and that he has 
abandoned all hope or expectation of recovery before he 
tells the tale of the manner in which he was slain, or the 
causes that led up to it, has allowed many a guilty 
prisoner, if not to escape entirely, at least to avoid the 
full penalty for the crime he had undoubtedly committed. 

Carlyle Harris was a gentleman's son, with all the 
advantages of education and breeding. In his twenty- 
second year, and just after graduating with honors from 
the College of Physicians and Surgeons in New York 
City, he was indicted and tried for the murder of Miss 
Helen Potts, a young, pretty, intelligent, and talented 
school girl in attendance at Miss Day's Ladies' Boarding 
School, on 40th Street, New York City. 

310 



THE CROSS-EXAMINATION OF DR. 



Harris had made the acquaintance of Miss Potts in 
the summer of 1889, and all during the winter paid 
marked attention to her. The following spring, while 
visiting her uncle, who was a doctor, she was delivered 
of a four months' child, and was obliged to confess to 
her mother that she was secretly married to Harris under 
assumed names, and that her student husband had him- 
self performed an abortion upon her. 

Harris was sent for. He acknowledged the truth of 
his wife's statements, but refused to make the marriage 
public. From this time on, till the day of her daughter's 
death, the wretched mother made every effort to induce 
Harris to acknowledge his wife publicly. She finally 
wrote him on the 20th of January, 1891, "You must go 
on the 8th of February, the anniversary of your secret 
marriage, before a minister of the gospel, and there have 
a Christian marriage performed — no other course than 
this will any longer be satisfactory to me or keep me quiet." 

That very day Harris ordered at an apothecary store 
six capsules, each containing 4J grains of quinine and 
J- of a grain of morphine, and had the box marked : 
" C. W. H. Student. One before retiring." Miss Potts 
had been complaining of sick headaches, and Harris 
gave her four of these capsules as an ostensible remedy. 
He then wrote to Mrs. Potts that he would agree to her 
terms " unless some other way could be found of satisfy- 
ing her scruples," and went hurriedly to Old Point Com- 
fort. Upon hearing from his wife that the capsules 

3" 



THE ART OF CROSS-EXAMINATION 

made her worse instead of better, he still persuaded her 
to continue taking them. On the day of her death she 
complained to her mother about the medicine Carlyle 
had given her, and threatened to throw the box with the 
remaining capsule out of the window. Her mother per- 
suaded her to try this last one, which she promised to do. 
Miss Potts slept in a room with three classmates who, 
on this particular night, had gone to a symphony concert. 
Upon their return they found Helen asleep, but woke 
her up and learned from her that she had been having 
" such beautiful dreams," she " had been dreaming of 
Carl." Then she complained of feeling numb, and 
becoming frightened, begged the girls not to let her go 
to sleep. She repeated that she had taken the medicine 
Harris had given her, and asked them if they thought it 
possible that he would give her anything to harm her. 
She soon fell into a profound coma, breathing only twice 
to the minute. The doctors worked over her for eleven 
hours without restoring her to consciousness, when she 
stopped breathing entirely. 

The autopsy, fifty-six days afterward, disclosed an 
apparently healthy body, and the chemical analysis of 
the contents of the stomach disclosed the presence of 
morphine but not of quinine, though the capsules as 
originally compounded by the druggist contained twenty- 
seven times as much quinine as morphine. 

This astounding discovery led to the theory of the 
prosecution: that Harris had emptied the contents of 

312 



THE CROSS-EXAMINATION OF DR. 



one of the capsules, had substituted morphine in suffi- 
cient quantities to kill, in place of the \\ grains of qui- 
nine (to the eye, powdered quinine and morphine are 
identical), and had placed this fatal capsule in the box 
with the other three harmless ones, one to be taken each 
night. He had then fled from the city, not knowing 
which day would brand him a murderer. 

Immediately after his wife's death Harris went to one 
of his medical friends and said : " I only gave her four 
capsules of the six I had made up ; the two I kept out 
will show that they are perfectly harmless. No jury can 
convict Tne with those in my possession ; they can be ajta- 
lyzed and proved to be harmless^ 

They were analyzed and it was proved that the pre- 
scription had been correctly compounded. But often- 
times the means a criminal uses in order to conceal his 
deed are the very means that Providence employs to 
reveal the sin that lies hidden in his soul. Harris failed 
to foresee that it was the preservation of these capsules 
that would really convict him. Miss Potts had taken 
all that he had given her, and no one could ever have 
been certain that it was not the druggist's awful mistake, 
had not these retained capsules been analyzed. When 
Harris emptied one capsule and reloaded it with mor- 
phine, he had himself become the druggist. 

It was contended that Harris never intended to recog- 
nize Helen Potts as his wife. He married her in secret, 
it appeared at the trial, — as it were from his own lips 

313 



THE ART OF CROSS-EXAMINATION 

through the medium of conversation with a friend, — 
" because he could not accomplish her ruin in any 
other way." He brought her to New York, was mar- 
ried to her before an alderman under assumed names, 
and then having accomplished his purpose, burned the 
evidence of their marriage, the false certificate. Finally, 
when the day was set upon which he must acknowledge 
her as his wife, he planned her death. 

The late recorder, Frederick Smyth, presided at the 
trial with great dignity and fairness. The prisoner was 
ably represented by John A. Taylor, Esq., and William 
Travers Jerome, Esq., the present district attorney of 
New York. 

Mr. Jerome's cross-examination of Professor Witthaus, 
the leading chemist for the prosecution, was an ex- 
tremely able piece of work, and during its eight hours 
disclosed an amount of technical information and re- 
search such as is seldom seen in our courts. Had it 
not been for the witness's impregnable position, he cer- 
tainly would have succumbed before the attack. The 
length and technicality of the examination render its use 
impracticable in this connection ; but it is recommended 
to all students of cross-examination who find themselves 
confronted with the task of examination in so remote a 
branch of the advocate's equipment as a knowledge of 
chemistry. 

The defence consisted entirely of medical testimony, 
directed toward creating a doubt as to our theory that 

314 



THE CROSS-EXAMINATION OF DR. 

morphine was the cause of death. Their cross-exami- 
nation of our witnesses was suggestive of death from 
natural causes : from heart disease, a brain tumor, apo- 
plexy, epilepsy, uremia. In fact, the multiplicity of their 
defences was a great weakness. Gradually they were 
forced to abandon all but two possible causes of death, 
— that by morphine poisoning and that by uremic poi- 
soning. This narrowed the issue down to the question, 
Was it a large dose of morphine that caused death, or 
was it a latent kidney disease that was superinduced 
and brought to light in the form of uremic coma by 
small doses of morphine, such as the one-sixth of a grain 
admittedly contained in the capsules Harris admin- 
istered ? In one case Harris was guilty ; in the other 
he was innocent. 

Helen Potts died in a profound coma. Was it the 
coma of morphine, or that of kidney disease ? Many of 
the leading authorities in this city had given their con- 
victions in favor of the morphine theory. In reply to 
those, the defence was able to call a number of young 
doctors, who have since made famous names for them- 
selves, but who at the time were almost useless as 
witnesses with the jury because of their comparative 
inexperience. Mr. Jerome had, however, secured the 
services of one physician who, of all the others in the 
country, had perhaps apparently best qualified himself 
by his writings and thirty years of hospital experience to 
speak authoritatively upon the subject. 

315 



THE ART OF CROSS-EXAMINATION 

His direct testimony was to the effect that — basing 
his opinion partly upon wide reading of the Hterature of 
the subject, and what seemed to him to be the general 
consensus of professional opinion about it, and " very 
largely on his own experience'' — no living doctor can dis- 
tinguish the coma of morphine from that of kidney dis- 
ease ; and as the theory of the criminal law is that, if the 
death can be equally as well attributed to natural causes 
as to the use of poison, the jury would be bound to give 
the prisoner the benefit of the doubt and acquit him. 

It was the turning-point in the trial. If any of the 
jurors credited this testimony, — the witness gave the 
reasons for his opinion in a very quiet, conscientious, 
and impressive manner, — there certainly could be no 
conviction in the case, nothing better than a disagree- 
ment of the jury. It was certain Harris had given the 
capsules, but unless his wife had died of morphine poi- 
soning, he was innocent of her death. 

The cross-examination that follows is much abbreviated 
and given partly from memory. It was apparent that the 
witness would withstand any amount of technical exami- 
nation and easily get the better of the cross-examiner if 
such matters were gone into. He had made a profound 
impression. The court had listened to him with breath- 
less interest. He must be dealt with gently and, if 
possible, led into self-contradictions where he was least 
prepared for them. 

The cross-examiner sparred for an opening with the 

316 



THE CROSS-EXAMINATION OF DR. 



determination to strike quickly and to sit down if he got 
in one telling blow. The first one missed aim a little, 
but the second brought a peal of laughter from the jury 
and the audience, and the witness retired in great con- 
fusion. Even the lawyers for the defence seemed to lose 
heart, and although two hours before time of adjourn- 
ment, begged the court for a recess till the following 
day. 

Counsel (quietly). " Do you wish the jury to under- 
stand, doctor, that Miss Helen Potts did not die of 
morphine poisoning?" 

Witness. " I do not swear to that." 
Counsel. " What did she die of .? " 
Witness. " I don't swear what she died of." 
Counsel. " I understood you to say that in your opin- 
ion the symptoms of morphine could not be sworn to 
with positiveness. Is that correct ? " 

Witness. " I don't think they can, with positiveness." 

Cotmsel. " Do you wish to go out to the world as 

saying that you have never diagnosed a case of morphine 

poisoning excepting when you had an autopsy to exclude 

kidney disease } " 

Witness. " I do not. I have not said so." 
Counsel. " Then you have diagnosed a case on the 
symptoms alone, yes.^* or no.? I want a categorical 
answer." 

Witness (sparring). " I would refuse to answer that 
question categorically ; the word ' diagnosed * is used 

317 



THE ART OF CROSS-EXAMINATION 

with two different meanings. One has to make what is 
known as a ' working diagnosis ' when he is called to a 
case, not a positive diagnosis." 

Counsel. " When was your last case of opium or mor- 
phine poisoning ? " 

Witness. " I can't remember which was the last." 

Counsel (seeing an opening). " I don't want the name 
of the patient. Give me the date approximately, that is, 
the year — but under oath." 

Witness. " I think the last was some years ago." 

Counsel. *' How many years ago 1 " 

Witness (hesitating). "It may be eight or ten years 
ago." 

Counsel. "Was It a case of death from morphine 
poisoning ? " 

Witness. " Yes, sir." 

Counsel. " Was there an autopsy } " 

Witness. " No, sir." 

Counsel. " How did you know it was a death from 
morphine, if, as you said before, such symptoms cannot 
be distinguished } " 

Witness. " I found out from a druggist that the woman 
had taken seven grains of morphine." 

Counsel " You made no diagnosis at all until you 
heard from the druggist } " 

Witness. " I began to give artificial respiration." 

Counsel " But that is just what you would do in a 
case of morphine poisoning ? " 

318 



THE CROSS-EXAMINATION OF DR. 



Wit7tess (hesitating). " Yes, sir. I made, of course, a 
working diagnosis." 

Counsel. " Do you remember the case you had before 
that.?" 

Witness. " I remember another case." 

Counsel. " When was that } " 

Witness. " It was a still longer time ago. I don't 
know the datec" 

Counsel. "■ How many years ago, on your oath ? " 

Witness. *' Fifteen, probably." 

Counsel. " Any others .? " 

Witness. *' Yes, one other." 

Counsel. "When.?" 

Witness. " Twenty years ago." 

Counsel. " Are these three cases all you can remember 
in your experience ? " 

Witness. " Yes, sir." 

Counsel (chancing it). " Were more than one of them 
deaths from morphine 1 " 

Witness. " No, sir, only one." 

Counsel (looking at the jury somewhat triumphantly). 
"Then it all comes down to this: you have had the 
experience of one case of morphine poisoning in the 
last twenty years ? " 

Witness (in a low voice). *' Yes, sir, one that I can 
remember." 

Counsel (excitedly). "And are you willing to come 
here from Philadelphia, and state that the New York 

319 



THE ART OF CROSS-EXAMINATION 

doctors who have already testified against you, and who 
swore they had had seventy-five similar cases in their 
own practice, are mistaken in their diagnoses and 
conclusions ? " 

Witness (embarrassed and in a low tone). " Yes, sir, 

am. 

Counsel. " You never heard of Helen Potts until a 
year after her death, did you.?" 

Witness. " No, sir." 

Counsel. " You heard these New York physicians say 
that they attended her and observed her symptoms for 
eleven hours before death ? " 

Witness. " Yes, sir." 

Counsel " Are you willing to go on record, with your 
one experience in twenty years, as coming here and 
saying that you do not believe our doctors can tell 
morphine poisoning when they see it?" 

Witness (sheepishly). " Yes, sir." 

Counsel. " You have stated, have you not, that the 
symptoms of morphine poisoning cannot be told with 
positiveness .'' " 

Witness. " Yes, sir." 

Counsel. " You said you based that opinion upon 
your own experience, and it now turns out you have 
seen but one case in twenty years." 

Witness. " I also base it upon my reading." 

Cou-nsel (becoming almost contemptuous in manner). 
•' Is your reading confined to your own book ? " 

320 



THE CROSS-EXAMINATION OF DR. 

Witness (excitedly). " No, sir ; I say no." 

Counsel (calmly). " But I presume you embodied in 
your own book the results of your reading, did you 
not.?" 

Witness (a little apprehensively). " I tried to, sir." 

It must be explained here that the attending physi- 
cians had said that the pupils of the eyes of Helen 
Potts were contracted to a pin-point, so much so as 
to be practically unrecognizable, and symmetrically 
contracted — that this symptom was the one invariably 
present in coma from morphine poisoning, and dis- 
tinguished it from all other forms of death, whereas 
in the coma of kidney disease one pupil would be 
dilated and the other contracted ; they would be un- 
symmetrical. 

Counsel (continuing). " Allow me to read to you from 
your own book on page i66, where you say (reading), 
' I have thought that inequality of the pupils' — that is, 
where they are not symmetrically contracted — ' is proof 
that a case is not one of narcotism ' — or morphine poi- 
soning — ' but Professor Taylor has recorded a case of 
morphine poisoning in which it [the unsymmetrical con- 
traction of the pupils] occurred^ Do I read it as you 
intended it.?" 

Witness. "Yes, sir." 

Counsel. " So until you heard of the case that Professor 
Taylor reported^ you had always supposed symmetri- 
cal contraction of the pupils of the eyes to be the distin- 
X 321 



THE ART OF CROSS-EXAMINATION 

guishing symptom of m,orphine poisoning, and it is on 
this that you base your statement that the New York doc- 
tors could 7iot tell Tnorphi^te poisoning positively when 
they see it ? " 

Witness (little realizing the point). "Yes, sir." 
Counsel (very loudly). " Well, sir, did you investigate 
that case far e^tough to discover that Professor Taylor s 
patie7it had 07ie glass eye / " ^ 

Witness (in confusion). " I have no memory of it." 
Counsel. " That has been proved to be the case here. 
You would better go back to Philadelphia, sir." 

There were roars of laughter throughout the audience 
as counsel resumed his seat and the witness walked out 
of the court room. It is difficult to reproduce in print 
the effect made by this occurrence, but with the retire- 
ment of this witness the defendant's case suffered a 
collapse from which it never recovered. 

It is interesting to note that within a year of Harris's 
conviction, Dr. Buchanan was indicted and tried for a 
similar offence — wife poisoning by the use of morphine. 

It appeared in evidence at Dr. Buchanan's trial that, 
during the Harris trial and the examination of the medi- 
cal witnesses, presumably the witness whose examination 
has been given above, Buchanan had said to his mess- 

^ The reports of six thousand cases of morphine poisoning had been ex- 
amined by the prosecution in this case before trial, and among them the case 
reported by Professor Taylor. 

322 



THE CROSS-EXAMINATION OF DR. 



mates that " Harris was a fool, he didn't know how 

to mix his drugs. If he had put a little atropine with his 
morphine, it would have dilated the pupil of at least one 
of his victim's eyes, and no doctor could have deposed to 
death by morphine." 

When Buchanan's case came up for trial it was dis- 
covered that, although morphine had been found in the 
stomach, blood, and intestines of his wife's body, the pupils 
of the eyes w^ere not symmetrically contracted. No posi- 
tive diagnosis of her case could be made by the attending 
physicians until the continued chemical examination of 
the contents of the body disclosed indisputable evidence 
of atropine (belladonna). Buchanan had profited by the 
disclosures in the Harris trial, but had made the fatal 
mistake of telling his friends how it could have been 
done in order to cheat science. It was this statement of 
his that put the chemists on their guard, and resulted in 
Buchanan's conviction and subsequent execution. 

Carlyle Harris maintained his innocence even after the 
Court of Appeals had unanimously sustained his convic- 
tion, and even as he calmly took his seat in the electric 
chair. 

The most famous English poison case comparable to 
the Harris and Buchanan cases was that of the celebrated 
William Palmer, also a physician by profession, who poi- 
soned his companion by the use of strychnine in order 
to obtain his money and collect his racing bets. The 
trial is referred to in detail in another chapter. 

323 



THE ART OF CROSS-EXAMINATION 

Palmer, like Harris and Buchanan, maintained a stoical 
demeanor throughout his trial and confinement in jail, 
awaiting execution. The morning of his execution he 
ate his eggs at breakfast as if he were going on a journey. 
When he was led to the gallows, it was demanded of him 
in the name of God, as was the custom in England in 
those days, if he was innocent or guilty. He made no 
reply. Again the question was put, " William Palmer, in 
the name of Almighty God, are you innocent or guilty.?" 
Just as the white cap came over his face he murmured in 
a low breath, " Guilty," and the bolts were drawn with a 
crash. 



324 



CHAPTER XV 

THE BELLEVUE HOSPITAL CASE 

On December 15, 1900, there appeared in the New 
York World an article written by Thomas J. Minnock, a 
newspaper reporter, in which he claimed to have been an 
eye-witness to the shocking brutality of certain nurses in 
attendance at the Insane Pavilion of Bellevue Hospital, 
which resulted in the death, by strangulation, of one of 
its inmates, a Frenchman named Hilliard. This French- 
man had arrived at the hospital at about four o'clock in 
the afternoon of Tuesday, December 11. He was suffer- 
ing from alcoholic mania, but was apparently otherwise 
in normal physical condition. Twenty-six hours later, 
or on Wednesday, December 12, he died. An autopsy 
was performed which disclosed several bruises on the 
forehead, arm, hand, and shoulder, three broken ribs and 
a broken hyoid bone In the neck (which supports the 
tongue), and a suffusion of blood or haemorrhage on both 
sides of the windpipe. The coroner's physician reported 
the cause of death, as shown by the autopsy, to be stran- 
gulation. The newspaper reporter, Minnock, claimed to 
have been in Bellevue at the time, feigning insanity for 
newspaper purposes ; and upon his discharge from the 

325 



THE ART OF CROSS-EXAMINATION 

hospital he stated that he had seen the Frenchman stran- 
gled to death by the nurses in charge of the Pavilion by 
the use of a sheet tightly twisted around the insane man's 
neck. The language used in the newspaper articles writ- 
ten by Minnock to describe the occurrences preceding the 
Frenchman's death was as follows : — 

" At supper time on Wednesday evening, when the 
Frenchman, Mr. Milliard, refused to eat his supper, the 
nurse, Davis, started for him. Hilliard ran around 
the table, and the other two nurses, Dean and Marshall, 
headed him off and held him ; they forced him down on 
a bench, Davis called for a sheet, one of the other two, 
I do not remember which, brought it, and Davis drew 
it around Milliard's neck like a rope. Dean was behind 
the bench on which Hilliard had been pulled back ; he 
gathered up the loose ends of the sheet and pulled the 
linen tight around Milliard's neck, then he began to 
twist the folds in his hand. I was horrified. I have 
read of the garrote ; I have seen pictures of how persons 
are executed in Spanish countries ; I realized that here, 
before my eyes, a strangle was going to be performed. 
Davis twisted the ends of the sheet in his hands, round 
and round ; he placed his knee against Milliard's back 
and exercised all his force. The dying man's eyes 
began to bulge from their sockets ; it made me sick, 
but I looked on as if fascinated. Milliard's hands 
clutched frantically at the coils around his neck. ' Keep 
his hands down, can't you } ' shouted Davis in a rage. 

326 



THE BELLEVUE HOSPITAL CASE 

Dean and Marshall seized the helpless man's hands ; 
slowly, remorselessly, Davis kept on twisting the sheet. 
Milliard began to get black in the face; his tongue was 
hanging out. Marshall got frightened. ' Let up, he is 
getting black ! ' he said to Davis. Davis let out a couple 
of twists of the sheet, but did not seem to like to do it. 
At last Hilliard got a little breath, just a little. The 
sheet was still brought tight about the neck. ' Now 
will you eat ? ' cried Davis. ' No,' gasped the insane 
man. Davis was furious. ' Well, I will make you eat ; 
I will choke you until you do eat,' he shouted, and he 
began to twist the sheet again. Hilliard's head would 
have fallen upon his breast but for the fact that Davis 
was holding it up. He began to get black in the face 
again. A second time they got frightened, and Davis 
eased up on the string. He untwisted the sheet, but 
still kept a firm grasp on the folds. It took Hilliard 
some time to come to. When he did at last, Davis 
again asked him if he would eat. Hilliard had just 
breath enough to whisper faintly, ' No.' I thought the 
man was dying then. Davis twisted up the sheet again, 
and cried, ' Well, I will make him eat or I will choke 
him to death.' He twisted and twisted until I thought 
he would break the man's neck. Hilliard was uncon- 
scious at last. Davis jerked the man to the floor and 
kneeled on him, but still had the strangle hold with his 
knee giving him additional purchase. He twisted the 
sheet until his own fingers were sore, then the three 

327 



THE ART OF CROSS-EXAMINATION 

nurses dragged the limp body to the bath-room, heaved 
him into the tub with his clothes on, and turned the 
cold water on him. He was dead by this time, I believe. 
He was strangled to death, and the finishing touches 
were put on when they had him on the floor. No big, 
strong, healthy man could have lived under that awful 
strangling. Hilliard was weak and feeble." 

The above article appeared in the morning Journaly 
a few days after the original publication in the New 
York World. The other local papers immediately took 
up the story, and it is easy to imagine the pitch to which 
the public excitement and indignation were aroused. The 
three nurses in charge of the pavilion at the time of Hil- 
liard's death were immediately indicted for manslaughter, 
and the head nurse, Jesse R. Davis, was promptly put on 
trial in the Court of General Sessions, before Mr. Justice 
Cowing and a "special jury." The trial lasted three 
weeks, and after deliberating five hours upon their ver- 
dict, the jury acquitted the prisoner. 

The intense interest taken in the case, not only by the 
public, but by the medical profession, was increased by 
the fact that for the first time in the criminal courts of 
this country two inmates of the insane pavilion, them- 
selves admittedly insane, were called by the prosecution, 
and sworn and accepted by the court as witnesses against 
the prisoner. One of these witnesses was suffering from 
a form of insanity known as paranoia, and the other from 
general paresis. With the exception of the two insane 

328 



THE BELLEVUE HOSPITAL CASE 

witnesses and the medical testimony founded upon the 
autopsy, there was no direct evidence on which to con- 
vict the prisoner but the statement of the newspaper 
reporter, Minnock. He was the one sane witness called 
on behalf of the prosecution, who was an eye-witness to 
the occurrence, and the issues in the case gradually nar- 
rowed down to a question of veracity between the news- 
paper reporter and the accused prisoner, the testimony 
of each of these witnesses being corroborated or 
contradicted on one side or the other by various other 
witnesses. 

If Minnock's testimony was credited by the jury, the 
prisoner's contradiction would naturally have no effect 
whatever, and the public prejudice, indignation, and 
excitement ran so high that the jury were only too ready 
and willing to accept the newspaper account of the trans- 
action. The cross-examination of Minnock, therefore, 
became of the utmost importance. It was essential that 
the effect of his testimony should be broken, and counsel 
having his cross-examination in charge had made the 
most elaborate preparations for the task. Extracts from 
the cross-examination are here given as illustrations of 
many of the suggestions which have been discussed in 
previous chapters. 

The district attorney in charge of the prosecution was 
Franklin Pierce, Esq. In his opening address to the 
jury he stated that he " did not believe that ever in the 
history of the state, or indeed of the country, had a jury 

329 



THE ART OF CROSS-EXAMINATION 

been called upon to decide such an important case as the 
one on trial." He continued: " There is no fiction — no 
' Hard Cash ' — in this case. The facts here surpass any- 
thing that fiction has ever produced. The witnesses will 
describe the most terrible treatment that was ever given 
to an insane man. No writer of fiction could have put 
them in a book. They would appear so improbable and 
monstrous that his manuscript would have been rejected 
as soon as offered to a publisher." 

When the reporter, Minnock, stepped to the witness- 
stand, the court room was crowded, and yet so intense 
was the excitement that every word the witness uttered 
could be distinctly heard by everybody present. He 
gave his evidence in chief clearly and calmly, and with 
no apparent motive but to narrate correctly the details of 
the crime he had seen committed. Any one unaware 
of his career would have regarded him as an unusually 
clever and apparently honest and courageous man with a 
keen memory and with just the slightest touch of gratifi- 
cation at the important position he was holding in the 
public eye in consequence of his having unearthed the 
atrocities perpetrated in our public hospitals. 

His direct evidence was practically a repetition of his 
newspaper article already referred to, only much more in 
detail. After questioning him for about an hour, the 
district attorney sat down with a confident " He is your 
witness, if you wish to cross-examine him." 

No one who ha? never experienced it can have the 

330 



THE BELLEVUE HOSPITAL CASE 

slightest appreciation of the nervous excitement attendant 
on being called upon to cross-examine the chief witness 
in a case involving the life or liberty of a human being. 
If Minnock withstood the cross-examination, the nurse 
Davis, apparently a most worthy and refined young man 
who had just graduated from the Mills Training School 
for Nurses, and about to be married to a most estimable 
young lady, would have to spend at least the next twenty 
years of his life at hard labor in state prison. 

The first fifteen minutes of the cross-examination were 
devoted to showing that the witness was a thoroughly 
educated man, twenty-five years of age, a graduate of 
Saint John's College, Fordham, New York, the Sacred 
Heart Academy, the Francis Xavier, the De Lasalle In- 
stitution, and had travelled extensively in Europe and 
America. The cross-examination then proceeded : — 

Counsel (amiably). " Mr. Minnock, I believe you have 
written the story of your life and published it in the 
Bridgeport Sunday Herald as recently as last December } 
I hold the original article in my hand." 

Witness. " It was not the story of my life." 

Counsel " The article is signed by you and purports 
to be a history of your life." 

Witness. "It is an imaginary story dealing with hyp- 
notism. Fiction partly, but it dealt with facts." 

Counsel " That is, you mean to say you mixed fiction 
and fact in the history of your life } " 

Witness. " Yes, sir." 

331 



THE ART OF CROSS-EXAMINATION 

Counsel. " In other words, you dressed up facts with 
fiction to make them more interesting ? " 

Witness. " Precisely." 

Counsel. " When in this article you wrote that at the 
age of twelve you ran away with a circus, was that dressed 
up?" 

Witness. " Yes, sir." 

Counsel. "It was not true?** 

Witness. " No, sir." 

Counsel " When you said that you continued with 
this circus for over a year, and went with it to Belgium, 
there was a particle of truth in that because you did, as 
a matter of fact, go to Belgium, but not with the circus 
as a public clown ; is that the idea 1 " 

Witness. " Yes, sir." 

Counsel " So there was some little truth mixed in at 
this point with the other matter.? '* 

Witftess. " Yes, sir." 

Counsel " When you wrote that you were introduced 
in Belgium, at the Hospital General, to Charcot, the cele- 
brated Parisian hypnotist, was there some truth in that.'*" 

Witness. " No, sir." 

Counsel " You knew that Charcot was one of the 
originators of hypnotism in France, didn't you ? " 

Witness. " I knew that he was one of the original 
hypnotists." 

Counsel " How did you come to state in the news- 
paper history of your life that you were introduced to 

332 



THE BELLEVUE HOSPITAL CASE 

Charcot at the Hospital General at Paris if that was not 
true?" 

Witness. " While there I met a Charcot." 

Counsel. " Oh, I see." 

Witness. " But not the original Charcot." 

Counsel. " Which Charcot did you meet ? " 

Witness. " A woman. She was a lady assuming the 
name of Charcot, claiming to be Madame Charcot." 

Counsel. " So that when you wrote in this article that 
you had met Charcot, you intended people to understand 
that it was the celebrated Professor Charcot, and it was 
partly true, because there was a woman by the name of 
Charcot whom you had really met } " 

Witness. " Precisely." 

Counsel (quietly). " That is to say, there was some 
truth in it } " 

Witness. " Yes, sir." 

Counsel. " When in that article you said that Charcot 
taught you to stand pain, was there any truth in that } " 

Witness. "No." 

Counsel. " Did you as a matter of fact learn to stand 
pain?" 

Witness. "No." 

Counsel. " When you said in this article that Charcot 
began by sticking pins and knives into you little by 
little, so as to accustom you to standing pain, was that 
all fiction ? " 

Witness. " Yes, sir." 

333 



THE ART OF CROSS-EXAMINATION 

Counsel. " When you wrote that Charcot taught you 
to reduce your respirations to two a minute, so as to 
make your body insensible to pain, was that fiction ? " 

Witness. " Purely imagination." 

Court (interrupting). " Counsellor, I will not allow 
you to go further in this line of inquiry. The witness 
himself says his article was almost entirely fiction, some 
of it founded upon fact. I will allow you the greatest 
latitude in a proper way, but not in this direction." 

Counsel. " Your Honor does not catch the point." 

Court. " I do not think I do." 

Counsel. " This prosecution was started by a news- 
paper article written by the witness, and published in 
the morning Journal. It is the claim of the defence 
that the newspaper article was a mixture of fact and fic- 
tion, mostly fiction. The witness has already admitted 
that the history of his life, published but a few months 
ago, and written and signed by himself and sold as a his- 
tory of his life, was a mixture of fact and fiction, mostly 
fiction. Would it not be instructive to the jury to learn 
from the lips of the witness himself how far he dressed 
up the pretended history of his own life, that they may 
draw from it soma inference as to how far he has like- 
wise dressed up the article which was the origin of this 
prosecution } " 

Court. " I shall grant you the greatest latitude in ex- 
amination of the witness in regard to the newspaper 
article which he published in regard to this case, but I 

334 



THE BELLEVUE HOSPITAL CASE 

exclude all questions relating to the witness's newspaper 
history of his own life." 

Counsel, " Did you not have yourself photographed 
and published in the newspapers in connection with the 
history of your life, with your mouth and lips and ears 
sewed up, while you were insensible to pain ? " 

Court. " Question excluded." 

Counsel. " Did you not publish a picture of yourself 
in connection with the pretended history of your life, 
representing yourself upon a cross, spiked hand and foot, 
but insensible to pain, in consequence of the instruction 
you had received from Professor Charcot.^ " 

Court. " Question excluded." 

Counsel. " I offer these pictures and articles in evi- 
dence." 

Court (roughly). " Excluded." 

Counsel. "In the article you published in the New 
York Jourftal, wherein you described the occurrences in 
the present case, which you have just now related upon 
the witness-stand, did you there have yourself represented 
as in the position of the insane patient, with a sheet 
twisted around your neck, and held by the hands of the 
hospital nurse who was strangling you to death ? " 

Witness. " I wrote the article, but I did not pose for 
the picture. The picture was posed for by some one else 
who looked like me." 

Counsel (stepping up to the witness and handing him 
the newspaper article). " Are not these words under 

335 



THE ART OF CROSS-EXAMINATION 

your picture, ' This is how I saw it done, Thomas J. 
Minnock,' a facsimile of your handwriting? " 

Witness. " Yes, sir, it is my handwriting." 

Counsel. " Referring to the history of your life again 
how many imaginary articles on the subject have you 
written for the newspapers throughout the country ? " 

Witness. " One." 

Counsel. " You have put several articles in New York 
papers, have you not ? " 

Witness. " It was only the original story. It has since 
been redressed, that's all." 

Counsel " Each time you signed the article and sold 
it to the newspaper for money, did you not } " 

Court. " Excluded." 

Counsel (with a sudden change of manner, and in a 
loud voice, turning to the audience)o " Is the chief of 
police of Bridgeport, Connecticut, in the court room.? 
(Turning to the witness.) Mr. Minnock, do you know 
this gentleman ? " 

Witness. " I do." 

Coujisel. " Tell the jury when you first made his 
acquaintance." 

Witness. " It was when I was arrested in the At- 
lantic Hotel, in Bridgeport, Connecticut, with my 
wife." 

Counsel. " Was she your wife at the time ? " 

Witness. " Yes, sir." 

Counsel. " She was but sixteen years old } " 

336 



THE BELLEVUE HOSPITAL CASE 

Witness. " Seventeen, I guess." 

Counsel. " You were arrested on the ground that you 
were trying to drug this sixteen-year-old girl and kidnap 
her to New York. Do you deny it } " 

Witness (doggedly). " I was arrested." 

Counsel (sharply). " You know the cause of the arrest 
to be as I have stated ? Answer yes or no ! " 

Witness (hesitating). " Yes, sir." 

Counsel. " You were permitted by the prosecuting 
attorney, F. A. Bartlett, to be discharged without 
trial on your promise to leave the state, were you 
not.?" 

Witness. " I don't remember anything of that." 

Counsel. " Do you deny it 1 " 

Witness, " I do." 

Counsel. " Did you have another young man with you 
upon that occasion .? " 

Witness. " I did. A college chum." 

Counsel. " Was he also married to this sixteen-year- 
old girl ? " 

Witness (no answer). 

Counsel (pointedly at witness). "Was he married to 
this girl also ? " 

Witness. " Why, no." 

Counsel. " You say you were married to her. Give 
me the date of your marriage." 

Witness (hesitating). " I don't remember the date." 

Counsel. " How many years ago was it ? " 

337 



THE ART OF CROSS-EXAMINATION 

Witness. " I don't remember." 

Counsel. " How many years ago was it ? " 

Wiiness. " I couldn't say." 

Counsel. " What is your best memory as to how many 
years ago it was ? " 

Witness. " I can't recollect." 

Counsel " Try to recollect about when you were 
married." 

Witness. " I was married twice, civil marriage and 
church marriage." 

Counsel " I am talking about Miss Sadie Cook. 
When were you married to Sadie Cook, and where is 
the marriage recorded } " 

Witness. " I tell you I don't remember." 

Counsel " Try." 

Witness. " It might be five or six or seven or ten 
years ago." 

Counsel " Then you cannot tell within five years of 
the time when you were married, and you are now only 
twenty-five years old ? " 

Witness. " I cannot." 

Counsel " Were you married at fifteen years of age ? " 

Witness. " I don't think I was." 

Counsel " You know, do you not, that your marriage 
was several years after this arrest in Bridgeport that I 
have been speaking to you about } " 

Witness. " I know nothing of the kind." 

Counsel (resolutely), " Do you deny it } " 

338 



THE BELLEVUE HOSPITAL CASE 

Witness (hesitating). " Well, no, I do not deny it." 

Counsel. " I hand you now what purports to be the 
certificate of your marriage, three years ago. Is the date 
correct .? " 

Witness. " I never saw it before." 

Counsel. " Does the certificate correctly state the time 
and place and circumstances of your marriage } " 

Witness. " I refuse to answer the question on the 
ground that it would incriminate my wife." 

The theory on which the defence was being made 
was that the witness, Minnock, had manufactured the 
story which he had printed in the paper, and later swore 
to before the grand jury and at the trial. The effort in 
his cross-examination was to show that he was the kind 
of man who would manufacture such a story and sell it 
to the newspapers, and afterward, when compelled to do 
so, swear to it in court. 

Counsel next called the witness's attention to many 
facts tending to show that he had been an eye-witness 
to adultery in divorce cases, and on both sides of them, 
first on one side, then on the other, in the same case, 
and that he had been at one time a private detective. 
Men whom he had robbed and blackmailed and cheated 
at cards were called from the audience, one after another, 
and he was confronted with questions referring to these 
charges, all of which he denied in the presence of his 
accusers. The presiding judge having stated to the 
counsel in the hearing of the witness that although he 

339 



THE ART OF CROSS-EXAMINATION 

allowed the witness to be brought face to face with his 
alleged accusers, yet he would allow no contradictions 
of the witness on these collateral matters. Minnock's 
former defiant demeanor immediately returned. 

The next interrogatories put to the witness developed 
the fact that, feigning insanity, he had allowed himself 
to be taken to Bellevue with the hope of being trans- 
ferred to Ward's Island, with the intention of finally 
being discharged as cured, and then writing sensational 
newspaper articles regarding what he had seen while an 
inmate of the public insane asylums; that in Bellevue 
Hospital he had been detected as a malingerer by one 
of the attending physicians, Dr. Fitch, and had been 
taken before a police magistrate where he had stated in 
open court that he had found everything in Bellevue 
"far better than he had expected to find it," and that he 
had " no complaint to make and nothing to criticise." 

The witness's mind was then taken from the main sub- 
ject by questions concerning the various conversations 
had with the different nurses while in the asylum, all 
of which conversations he denied. The interroo^atories 
were put in such a way as to admit of a " yes " or " no " 
answer only. Gradually coming nearer to the point 
desired to be made, the following questions were asked : — 

Counsel. " Did the nurse Gordon ask you why you 
were willing to submit to confinement as an insane 
patient, and did you reply that you were a newspaper 
man and under contract with a Sunday paper to write 

340 



THE BELLEVUE HOSPITAL CASE 

up the methods of the asylum, but that the paper had 
repudiated the contract ? " 

Witness. "No." 

Counsel. " Or words to that effect ? " 

Witness. "No." 

Counsel. " I am referring to a time subsequent to 
your discharge from the asylum, and after you had 
returned to take away your belongings. Did you, at 
that time, tell the nurse Gordon that you had expected to 
be able to write an article for which you could get ^140 V 

Witness. " I did not." 

Counsel. " Did the nurse say to you, ' You got fooled 
this time, didn't you } ' And did you reply, * Yes, but I 
will try to write up something and see if I can't get 
square with them ! ' " 

Witness. " I have no memory of it." 

Counsel. " Or words to that effect ? " 

Witness. " I did not." 

All that preceded had served only as a veiled introduc- 
tion to the next important question. 

Counsel (quietly). " At that time, as a matter of fact, 
did you know anything you could write about when you 
got back to the Herald office ? " 

Witness. " / knew there was nothing to write^^ 

Counsel. " Did you know at that time, or have any 
idea, what you would write when you got out } " 

Witness. " Did I at that time know.? Why, I knew 
there was nothing to write.'' 

341 



THE ART OF CROSS-EXAMINATION 

Counsel (walking forward and pointing excitedly at the 
witness). " Although you had seen a man choked to 
death with a sheet on Wednesday night, you knew on 
Friday morning that there was nothing you could write 
about ? " 

Witness (hesitating). " I didn't know they had killed 
the man." 

Counsel. " Although you had seen the patient fall un- 
conscious several times to the floor after having been 
choked with the sheet twisted around his neck, you knew 
there was nothing to write about } " 

Witness. " I knew it was my duty to go and see the 
charity commissioner and tell him about that." 

Counsel. " But you were a newspaper reporter in the 
asylum, for the purpose of writing up an article. Do 
you want to take back what you said a moment ago — 
that you knew there was nothing to write about ? " 

Witness. " Certainly not. I did not know the man 
was dead." 

CotmseL " Did you not testify that the morning after 
you had seen the patient choked into unconsciousness, 
you heard the nurse call up the morgue to inquire if 
the autopsy had been made } " 

Witness (sheepishly.) " Well, the story that I had the 
contract for with the Herald was cancelled." 

Counsel. " Is it not a fact that within four hours of the 
time you were finally discharged from the hospital on 
Saturday afternoon, you read the newspaper account of 

342 



THE BELLEVUE HOSPITAL CASE 

the autopsy, and then immediately wrote your story of 
having seen this patient strangled to death and offered 
it for sale to the New York World? " 

Witness. " That is right ; yes, sir." 

Counsel. " You say you knew it was your duty to go 
to the charity commissioner and tell him what you had 
seen. Did you go to him ? " 

Witness. " No, not after I found out through reading 
the autopsy that the man was killed." 

Counsel. " Instead, you went to the World, and offered 
them the story in which you describe the way Hilliard 
was killed.?" 

Witness. "Yes." 

Counsel. " And you did this within three or four hours 
of the time you read the newspaper account of the 
autopsy ? " 

Witness. "Yes." 

Counsel. " The editors of the World refused your 
story unless you would put it in the form of an affidavit, 
did they not ? " 

Witness. "Yes." 

Counsel. " Did you put it in the form of an affidavit.'^" 

Witness. "Yes." 

Counsel. " And that was the very night that you were 
discharged from the hospital ? " 

Witness. "Yes." 

Cou7tsel. " Every occurrence was then fresh in your 
mind, was it not ? " 

343 



THE ART OF CROSS-EXAMINATION 

Witness (hesitating). "What?" 

Counsel. " Were the occurrences of the hospital fresh 
in your mind at the time ? " 

Witness. " Well, not any fresher then than they are 
now." 

Counsel. " As fresh as now } " 

Witness. " Yes, sir." 

Couizsel (pausing, looking among his papers, selecting 
one and walking up to the witness, handing it to him). 
" Take this affidavit, made that Friday night, and sold 
to the World ; show me where there is a word in it 
about Davis having strangled the Frenchman with a 
sheet, the way you have described it here to-day to this 
jury." 

Witness (refusing paper). " No, I don't think that it is 
there. It is not necessary for me to look it over." 

C^z^/^j-^/ (shouting). "Don't think I You know that 
it is not there, do you not ? " 

Witness (nervously). " Yes, sir ; it is not there." 

Counsel. " Had you forgotten it when you made that 
affidavit .? " 

Witness. " Yes, sir." 

Counsel (loudly). " You had forgotten it, although only 
three days before you had seen a man strangled in your 
presence, with a sheet twisted around his throat, and 
had seen him fall lifeless upon the floor; you had forgot- 
ten it when you described the incident and made the 
affidavit about it to the World?'' 

344 



THE BELLEVUE HOSPITAL CASE 

Witness (hesitating). " I made two affidavits. I be« 
lieve that is in the second affidavit." 

Counsel. "Answer my questions, Mr. Minnock. Is 
there any doubt that you had forgotten it when you 
made the first affidavit to the World? " 

Witness. " I had forgotten it." 

Counsel (abruptly). " When did you recollect ? " 

Witness. " I recollected it when I made the second 
affidavit before the coroner." 

Counsel. " And when did you make that ? " 

Witness. "It was a few days afterward, probably the 
next day or two." 

Counsel (looking among his papers, and again walking 
up to the witness). " Please take the coroner's affidavit 
and point out to the jury where there is a word about 
a sheet having been used to strangle this man." 

Witness (refusing paper). " Well, it may not be there." 

Counsel. " Is it there } " 

Witness (still refusing paper). " I don't know." 

Counsel " Read it, read it carefully." 

Witness (reading). " I don't see anything about it." 

Counsel. " Had you forgotten it at that time as well.'*" 

Witness (in confusion). " I certainly must have." 

Counsel. " Do you want this jury to believe that, hav- 
ing witnessed this horrible scene which you have de- 
scribed, you immediately forgot it, and on two different 
occasions when you were narrating under oath what 
took place in that hospital, you forgot to mention it } " 

345 



THE ART OF CROSS-EXAMINATION 

Witness. " It escaped my memory." 

Counsel. " You have testified as a witness before in 
this case, have you not ? " 

Witness. " Yes, sir." 

Counsel. " Before the coroner ? ** 

Witness. " Yes, sir." 

Counsel. " But this sheet incident escaped your 
memory then } " 

Witness. " It did not." 

Counsel (taking in his hands the stenographer's min- 
utes of the coroner's inquest). " Do you not recollect 
that you testified for two hours before the coroner with- 
out mentioning the sheet incident, and were then ex- 
cused and were absent from the court for several days 
before you returned and gave the details of the sheet 
incident } " 

Witness. " Yes, sir ; that is correct." 

Counsel. " Why did you not give an account of the 
sheet incident on the first day of your testimony ? " 

Witness. " Well, it escaped my memory ; I forgot 
it." 

Counsel. " Do you recollect, before beginning your 
testimony before the coroner, you asked to look at the 
affidavit that you had made for the World ? " 

Witness. " Yes, I had been sick, and I wanted to 
refresh my memory." 

Counsel. " Do you mean that this scene that you 
have described so glibly to-day had faded out of your 

346 



THE BELLEVUE HOSPITAL CASE 

mind then, and you wanted your affidavit to refresh 
your recollection ? " 

Wihtess. " No, it had not faded. I merely wanted to 
refresh my recollection." 

Counsel. " Was it not rather that you had made up 
the story in your affidavit, and you wanted the affidavit 
to refresh your recollection as to the story you had 
manufactured ? " 

Witness. " No, sir ; that is not true." 

The purpose of these questions, and the use made of 
the answers upon the argument, is shown by the follow- 
ing extract from the summing up : — 

" My point is this, gentlemen of the jury, and it is 
an unanswerable one in my judgment, Mr. District At- 
torney : If Minnock, fresh from the asylum, forgot this 
sheet incident when he went to sell his first newspaper 
article to the World ; if he also forgot it when he went 
to the coroner two days afterward to make his second 
affidavit ; if he still forgot it two weeks later when, at 
the inquest, he testified for two hours, without mention- 
ing it, and only first recollected it when he was recalled 
two days afterward, then there is but one inference to 
be drawn, and that is, that he never saw it, because he 
could not forget it if he had ever seen it ! And the 
important feature is this : he was a newspaper reporter ; 
he was there, as the district attorney says, ' to observe 
what was going on.' He says that he stood by in that 
part of the room, pretending to take away the dishes in 

347 



THE ART OF CROSS-EXAMINATION 

order to see what was going on. He was sane, the 
only sane man there. Now if he did not see it, it is 
because it did not take place, and if it did not take place, 
the insane men called here as witnesses could not have 
seen it. Do you see the point ? Can you answer it } 
Let me put it again. It is not in mortal mind to believe 
that this man could have seen such a transaction as he 
describes and ever have forgotten it. Forget it when he 
writes his article the night he leaves the asylum and 
sells it to the morning World ! Forget it two days 
afterward when he makes a second important affidavit ! 
He makes still another statement, and does not mention 
it, and even testifies at the coroner's inquest two weeks 
later, and leaves it out. Can the human mind draw any 
other inference from these facts than that he never saw 
it — because he could not have forgotten it if he had 
ever seen it ? If he never saw it, it did not take place. 
He was on the spot, sane, and watching everything 
that went on, for the very purpose of reporting it. Now 
if this sheet incident did not take place, the insane men 
could not have seen it. This disposes not only of 
Minnock, but of all the testimony in the People's case. 
In order to say by your verdict that that sheet incident 
took place, you have got to find something that is con- 
trary to all human experience ; that is, that this man, 
Minnock, having seen the horrible strangling with the 
sheet, as he described, could possibly have immediately 
forgotten it." 

348 



THE BELLEVUE HOSPITAL CASE 

The contents of the two affidavits made to the 
World and the coroner were next taken up, and the 
witness was first asked what the occurrence really was 
as he now remembered it. After his answers, his 
attention was called to what he said in his affidavits, and 
upon the differences being made apparent, he was asked 
whether what he then swore to, or what he now swore 
to, was the actual fact ; and if he was now testifying from 
what he remembered to have seen, or if he was trying to 
remember the facts as he made them up in the affidavit. 

Counsel. " What was the condition of the Frenchman 
at supper time ? Was he as gay and chipper as when 
you said that he had warmed up after he had been walk- 
ing around awhile ? " 

Witness. " Yes, sir." 

Counsel. " But in your affidavit you state that he 
seemed to be very feeble at supper. Is that true } " 

Witness. " Well, yes ; he did seem to be feeble." 

Counsel. " But you said a moment ago that he warmed 
up and was all right at supper time." 

Witness. " Oh, you just led me into that." 

Counsel. " Well, I won't lead you into anything more. 
Tell us how he walked to the table." 

Witness. " Well, slowly." 

Counsel. " Do you remember what you said in the 
affidavit .? " 

Witness. " I certainly do." 

Counsel. " What did you say ? " 

349 



THE ART OF CROSS-EXAMINATION 

Witness. " I said he walked in a feeble condition." 

Counsel. " Are you sure that you said anything in the 
affidavit about how he walked at all ? " 

Witness. " I am not sure." 

Counsel. " The sheet incident, which you have de- 
scribed so graphically, occurred at what hour on Wednes- 
day afternoon ? " 

Witness. " About six o'clock." 

Counsel " Previous to that time, during the afternoon, 
had there been any violence shown toward him } " 

Witness. " Yes ; he was shoved down several times by 
the nurses." 

Coujisel " You mean they let him fall ? " 

Witness. " Yes, they thought it a very funny thing to 
let him totter backward, and to fall down. They then 
picked him up. His knees seemed to be kind of muscle- 
bound, and he tottered back and fell, and they laughed. 
This was somewhere around three o'clock in the after- 
noon." 

Counsel. " How many times, Mr. Minnock, would you 
swear that you saw him fall over backward, and after 
being picked up by the nurse, let fall again .? " 

Witness. " Four or five times during the afternoon." 

Counsel. " And would he always fall backward ? " 

Witness. " Yes, sir ; he repeated the operation of tot- 
tering backward. He would totter about five feet, and 
would lose his balance and would fall over backward." 

The witness was led on to describe in detail this pro- 

350 



THE BELLEVUE HOSPITAL CASE 

cess of holding up the patient, and allowing him to 
fall backward, and then picking him up again, in order 
to make the contrast more apparent with what he had 
said on previous occasions and had evidently forgotten. 

Counsel, " I now read to you from the stenographer's 
minutes what you said on this subject in your sworn 
testimony given* at the coroner's inquest. You were 
asked, ' Was there any violence inflicted on Wednesday 
before dinner time ? ' And you answered, ' I didn't see 
any.' You were then asked if, up to dinner time at six 
o'clock on Wednesday night, there had been any violence ; 
and you answered : ' No, sir ; no violence since Tuesday 
night. There was nothing happened until Wednesday 
at supper time, somewhere about six o'clock.' Now what 
have you to say as to these different statements, both 
given under oath, one given at the coroner's inquest, and 
the other given here to-day ? " 

Witness. " Well, what I said about violence may have 
been omitted by the coroner's stenographer." 

Counsel. " But did you swear to the answers that I 
have just read to you before the coroner? " 

Witness. " I may have, and I may not have. I don't 
know." 

Counsel. " If you swore before the coroner there was 
no violence, and nothing happened until Wednesday 
after supper, did you mean to say it ? " 

Witness. " I don't remember." 

Counsel " After hearing read what you swore to at 

351 



THE ART OF CROSS-EXAMINATION 

the coroner's inquest, do you still maintain the truth of 
what you have sworn to at this trial, as to seeing the nurse 
let the patient fall backward four or five times, and pick 
him up and laugh at him ? " 

Witness. " I certainly do." 

Counsel. " I again read you from the coroner's min- 
utes a question asked you by the coroner himself. 
Question by the coroner, ' Did you at any time while in 
the office or the large room of the asylum see Hilliard 
fall or stumble ? ' Answer, ' No, sir; I never did.' What 
have you to say to that } " 

Witness. " That is correct." 

Counsel. " Then what becomes of your statement 
made to the jury but fifteen minutes ago, that you saw 
him totter and fall backward several times } " 

Witness. " It was brought out later on before the 
coroner." 

Coujisel " Brought out later on ! Let me read to 
you the next question put to you before the coroner. 
Question, ' Did you at any time see him try to walk 
or run away and fall ? ' Answer, ' No, I never saw him 
fall.' What have you to say to that ? " 

Witness. " Well, I must have put in about the tot- 
tering in my affidavit, and omitted it later before the 
coroner." 

At the beginning of the cross-examination it had been 
necessary for the counsel to fight with the Court over 
nearly every question asked ; and question after question 

352 



THE BELLEVUE HOSPITAL CASE 

was ruled out. As the examination proceeded, however, 
the Court began to change its attitude entirely toward 
the witness. The presiding judge constantly frowned 
on the witness, kept his eyes riveted upon him, and finall}, 
broke out at this juncture : " Let me caution you, Mr 
Minnock, once for all, you are here to answer counsel's 
questions. If you can't answer them, say so ; and if you 
can answer them, do so ; and if you have no recollection, 
say so." 

Witness. "Well, your Honor, Mr. has been 

cross-examining me very severely about my wife, which 
he has no right to do." 

Court. " You have no right to bring that up. He has 
a perfect right to cross-examine you." 

Witness (losing his temper completely). " That man 
wouldn't dare to ask me those questions outside. He 
knows that he is under the protection of the court, or 
I would break his neck." 

Court. " You are making a poor exhibit of yourself. 
Answer the questions, sir." 

Counsel. " You don't seem to have any memory at all 
about this transaction. Are you testifying from memory 
as to what you saw, or making up as you go along ? " 

Witness (no answer). 

Counsel. Which is it } " 

Witness (doggedly). " I am telling what I saw." 

Counsel. " Well, listen to this then. You said in your 
affidavit : ' The blood was all over the floor. It was covered 
z 353 



THE ART OF CROSS-EXAMINATION 

with Hilliard's blood, and the scrub woman came Tues- 
day and Wednesday morning, and washed the blood away.' 
Is that right ? " 

Wihtess. " Yes, sir." 

Counsel. " Why, I understood you to say that you 
didn't get up Wednesday morning until noon. How 
could you see the scrub woman wash the blood 
away ? " 

Witness. " They were at the farther end of the hall. 
They washed the whole pavilion. I didn't see them 
Wednesday morning; it was Tuesday morning I saw 
them scrubbing." 

Counsel. " You seem to have forgotten that Milliard, 
the deceased, did not arrive at the pavilion until Tuesday 
afternoon at four o'clock. What have you to say to 
that.?" 

Witness. " Well, there were other people who got beat- 
ings besides him." 

Counsel. " Then that is what you meant to refer to in 
your afifidavit, when speaking of Hilliard's blood upon the 
floor. You meant beatings of other people .? " 

Witness. " Yes sir — on Tuesday." 

The witness was then forced to testify to minor details, 
which, within the knowledge of the defence, could be con- 
tradicted by a dozen disinterested witnesses. Such, for 
instance, as hearing the nurse Davis call up the morgue, 
the morning after Hilliard was killed, at least a dozen 
times on the telephone, and anxiously inquire what had 

354 



THE BELLEVUE HOSPITAL CASE 

been disclosed by the autopsy ; whereas, in fact, there was 
no direct telephonic communication whatever between 
the morgue and the insane pavilion ; and the morgue 
attendants were prepared to swear that no one had called 
them up concerning the Hilliard autopsy, and that there 
were no inquiries from any source. The witness was next 
made to testify affirmatively to minor facts that could be, 
and were afterward, contradicted by Dr. Wildman, by Dr. 
Moore, by Dr. Fitch, by Justice Hogman, by night nurses 
Clancy and Gordon, by Mr. Dwyer, Mr. Hayes, Mr. Fayne, 
by Gleason the registrar, by Spencer the electrician, by 
Jackson the janitor, and by several of the state's own 
witnesses who were to be called later. 

By this time the witness had begun to flounder help- 
lessly. He contradicted himself constantly, became red 
and pale by turns, hesitated before each answer, at times 
corrected his answers, at others was silent and made no 
answer at all. At the expiration of four hours he left 
the witness-stand a thoroughly discredited, haggard, and 
wretched object. The court ordered him to return the 
following day, but he never was seen again at the 
trial. 

A week later, his foster-mother, when called to the wit- 
ness-chair by the defence, handed to the judge a letter 
received that morning from her son, who was in Phila- 
delphia (which, however, was not allowed to be shown to 
the jury) in which he wrote that he had shaken from 
his feet the dust of New York forever, and would never 

355 



THE ART OF CROSS-EXAMINATION 

return ; that he felt he had been ruined, and would be 
arrested for perjury if he came back, and requested money 
that he might travel far into the West and commence 
life anew. It was altogether the most tragic incident 
in the experience of the writer. 



356 



CHAPTER XVI 

THE CROSS-EXAMINATION OF GUITEAU, THE ASSASSIN OF 
PRESIDENT GARFIELD, BY MR. JOHN K. PORTER 

The trial of Charles J. Guiteau for the assassination 
of President Garfield was in many respects one of the 
most remarkable trials in the history of our American 
courts. Guiteau's claim was that he shot the President 
acting upon what he believed to be an inspiration, — a 
divine command, which controlled his conscience, 
overpowered his will, and which it was impossible for 
him to resist. Guiteau openly avowed the act of kill- 
ing, but imputed the blame to the Almighty. The 
defence, therefore, was moral insanity. 

The trial was conducted in the June term of the 
Supreme Court of the District of Columbia, in the year 
1 88 1. It lasted two months. The court room was 
daily filled with the scum of Washington, — negroes, 
prostitutes, and curiosity seekers of all kinds. On 
account of the crowds, the doors of the court were kept 
shut, and many of the expert physicians became ill in 
consequence of the excessively foul air. One doctor 
died from the effects of the long infection. 

The prisoner, although represented by counsel, was 

357 



THE ART OF CROSS-EXAMINATION 

permitted to address the jury in his own behalf. He 
was also allowed to interrupt the proceedings practically 
at will. Each day's session was opened with a tirade 
from the prisoner, in which he heaped upon the counsel 
representing the Government, abuse, calumny, and 
vituperation unequalled in the proceedings of any court 
of justice in the history of the country. The evidence 
of the different witnesses was given amid clamor, objec- 
tions, interruptions, and blasphemy upon the part of the 
prisoner. 

Guiteau's attitude in court and in the jail prior to the 
trial were very different. In the latter, while being 
examined by the experts, all his replies were intelligent 
and he talked freely upon every subject but the murder, 
concerning which his set reply was, " I beg your pardon, 
gentlemen, but you will have to excuse me from talking 
about a subject which involves my legal rights." 

Only eighty copies of the Record of the Guiteau 
Trial were preserved by the Government for distribu- 
tion. Every capital in Europe applied for a copy, only 
to be told that there were not any supplied by the Gov- 
ernment for general distribution. A resolution in 
Congress providing for the printing of a large number 
of copies was opposed and defeated in the Senate by 
Senator Sherman, upon the ground that he did not 
believe in perpetuating the history of Guiteau's act in 
documentary form. 

The cross-examination of Guiteau by Mr. John K. 

358 



CROSS-EXAMINATION OF GUITEAU 

Porter is often spoken of as one of the great master- 
pieces of forensic skill. It would be impracticable to 
give more than a few extracts from the examination. 
The record of the trial covers over twenty-five hundred 
closely printed pages in Government print, equal to 
about five thousand pages of ordinary print. All 
together, the report of the trial constitutes probably the 
most complete contribution on the subject of the legal 
responsibility of persons having diseased minds or 
insane habits. 

Mr. Porter's cross-examination showed Guiteau to be 
a beggar, a hypocrite, a swindler; cunning and crafty, 
remorseless, utterly selfish from his youth up, low and 
brutal in his instincts, inordinate in his love of noto- 
riety, eaten up by a love of money ; a lawyer who, after 
many years of practice in two large cities, had never 
won a case; a man who left in every state through 
which he passed a trail of knavery, fraud, and imposi- 
tion. His cross-examination made apparent to every- 
body that Guiteau's vanity was inordinate, his spirit 
of selfishness, jealousy, and hatred absolutely unbounded. 
He was cleverly led to picture himself to the civilized 
world as a moral monstrosity. 

Mr. Porter. " Did you say, as Mr. John R. Scott 
swears, on leaving the depot on the day of the murder 
of the President, ' General Arthur is now the President 
of the United States'?" 

Guiteau. " I decline to say whether I did or not' 

359 



THE ART OF CROSS-EXAMINATION 

Mr. Porter. " You thought so, did you not ? You 

are a man of truth ? " 

Guiteau. " I think I made a statement to that effect." 
Mr. Porter. " You thought you had killed President 

Garfield ? " 

Guiteau. "I supposed so at the time." 
Mr. Porter. " You intended to kill him .? " 
Guiteau. " I thought the Deity and I had done it, sir." 
Mr. Porter. " Who bought the pistol, the Deity or 

you : 

Guiteau (excitedly). " I say the Deity inspired the act, 

and the Deity will take care of it." 

Mr. Porter. " Who bought the pistol, the Deity or 

you t 

Guiteau. " The Deity furnished the money by which 

I bought it, as the agent of the Deity." 

Mr. Porter. " I thought it was somebody else who 

furnished the money } " 

Guiteau. " I say the Deity furnished the money." 
Mr. Porter. " Did Mr. Maynard lend you the money.? " 
Guiteau. "He loaned me ^15, — yes, sir; and I used 

^10 of it to buy the pistol." 

Mr. Porter. " Were you inspired to borrow the $ 1 5 

of Mr. Maynard .? " 

Guiteau. " It was of no consequence whether I got 

it from him or somebody else." 

Mr. Porter. " Were you inspired to buy that British 

bull-dog pistol?" 

360 



CROSS-EXAMINATION OF GUITEAU 

Guiteau. " I had to use my ordinary judgment as to 
ways and means to accomplish the Deity's will." 

Mr. Porter. " Were you inspired to remove the 
President by murder ? " 

Guiteau. " I was inspired to execute the divine will." 

Mr. Porter. " By murder.? " 

Guiteau. " Yes, sir, so-called murder." 

Mr. Porter. " You intended to do it? " 

Guiteau. " I intended to execute the divine will, sir." 

Mr. Porter. " You did not succeed t " 

Guiteau. " I think the doctors did the work." 

Mr. Porter. " The Deity tried, and you tried, and 
both failed, but the doctors succeeded ? " 

Guiteau. " The Deity confirmed my act by letting the 
President down as gently as He did." 

Mr. Porter. " Do you think that it was letting him 
down gently to allow him to suffer with torture, over 
which you professed to feel so much solicitude, during 
those long months ? " 

Guiteau. " The whole matter was in the hands of the 
Deity. I do not wish to discuss it any further." 

Mr. Porter. " Did you believe it was the will of God 
that you should murder him ? " 

Guiteau. " I believe that it was the will of God that 
he should be removed, and that I was the appointed 
agent to do it." 

Mr. Porter. " Did He give you the commission in 
writing ? " 

361 



THE ART OF CROSS-EXAMINATION 

Guiteau. " No, sir." 

Mr. Porter. " Did He give it in an audible tone of 
voice ? " 

Guiteau. " He gave it to me by his pressure upon me." 

Mr. Porter. " Did He give it to you in a vision of 
the night ? " 

Guiteau. " I don't get my inspirations in that way." 

Mr. Porter. " Did you contemplate the President's 
removal otherwise than by murder ? " 

Guiteau. " No, sir, I do not like the word murder. I 
don't like that word. If I had shot the President of the 
United States on my own personal account, no punish- 
ment would be too severe or too quick for me; but act- 
ing as the agent of the Deity puts an entirely different 
construction upon the act, and that is the thing that I 
want to put into this court and the jury and the oppos- 
ing counsel. I say this was an absolute necessity in 
view of the political situation, for the good of the 
American people, and to save the nation from another 
war. That is the view I want you to entertain, and 
not settle down on a cold-blooded idea of murder." 

Mr. Porter. " Do you feel under great obligations to 
the American people 1 " 

Guiteau. " I think the American people may some- 
time consider themselves under great obligations to 
me, sir." 

Mr. Porter. " Did the Republican party ever give 

you an office ? " 

362 



CROSS-EXAMINATION OF GUITEAU 

Guiteau. " I never held any kind of political office in 
my life, and never drew one cent from the Government." 

Mr. Porter. " And never desired an office, did you ? " 

Guiteau. " I had some thought about the Paris con- 
sulship. That is the only office that I ever had any 
serious thought about." 

Mr. Porter. " That was the one which resulted in the 
inspiration, wasn't it .? " 

Gzciteau. " No, sir, most decidedly not. My getting 
it or not getting it had no relation to my duty to God 
and to the American people." 

jj^. 4^ 4^ 4j^ ^ ^ J|^ jjL 

Mr. Porter. "On the i6th of June, in an address to 
the American people, which you intended to be found 
on your person after you had shot the President, you 
said, ' I conceived the idea of removing the President 
four weeks ago.' Was that a lie .f* " 

Gtiiteau. " I conceived it, but my mind was not fully 
settled on it. There is a difference in the idea of 
conceiving things and actually fixing your mind on them. 
You may conceive the idea that you will go to Europe 
in a month, and you may not go. That is no point at 
all." 

Mr. Porter. " Then there was no inspiration in the 
preceding May, as you have described 1 " 
Guiteau. " It was a mere flash." 
Mr. Porter. " It was an embryo inspiration ? " 
Guiteau. " A mere impression that came into my 

363 



THE ART OF CROSS-EXAMINATION 

mind that possibly it might have to be done. I got 
the thought, and that is all I did get at that time. " 

Mr. Porter. " Don't you know when you were in- 
spired to kill the President ? " 

Guiteau. " I have stated all I have got to say on that 
subject. If you do not see it, I will not argue it." 

Mr. Porter. " Do you think you do not know when 
you were inspired to do the act ? " 

Guiteau. " After I got the conception, my mind was 
being gradually transformed. I was finding out whether 
it was the Lord's will or not. Do you understand that } 
And in the end I made up my mind that it was His will. 
That is the way I test the Lord." 

Mr. Porter. " What was your doubt about } " 

Guiteau. " Because all my natural feelings were op- 
posed to the act, just as any man's would be." 

Mr. Porter. " You regarded it as murder, then } " 

Gtiiteau. "So called, yes, sir." 

Mr. Porter. " You knew it was forbidden by human 
law ? " 

Guiteau. " I expected the Deity would take care of 
that. I never had any conception of the matter as a 
murder." 

Mr. Porter. " Why then were you in doubt ? " 

Guiteau. " My mind is a perfect blank on that subject, 
and has been." 

Mr. Porter. " The two weeks of doubt I am referring 
to, your mind is not a blank as to that; for you told us 

364 



CROSS-EXAMINATION OF GUITEAU 

this morning how during those two weeks you walked 
and prayed. During that time did you believe that 
killing the President was forbidden by human law?" 

Guiteau. " I cannot make myself understood any 
more than I have. If that is not satisfactory, I cannot 
do it any better." 

Mr. Porter. " You mentioned the other day that you 
never struck a man in your life. Was that true } " 

Guiteau. " I do not recall ever striking a man, sir. I 
have always been a peace man, naturally very cowardly, 
and always kept away from any physical danger." 

Mr. Porter. " But morally brave and determined } " 

Guiteau. " I presume so, especially when I am sure 
the Deity is back of me." 

Mr. Porter. " When did you become sure of that t " 

Guiteau. " I became sure of it about the first of June 
as far as this case is concerned." 

Mr. Porter. " Before that you did not think He was 
back of you ? Who did you think was back of you with 
a suggestion of murder .? " 

Guiteau. " It was the Deity, sir, that made the 
original suggestion." 

Mr. Porter. " I thought you said that the Deity 
did not make the suggestion until the first of June?" 

Guiteau. " I say that the Deity did make the sug- 
gestion about the middle of May, and that I was 
weighing the proposition for the two weeks succeeding. 

365 



THE ART OF CROSS-EXAMINATION 

I was positive it was the will of the Deity about the first 
of June." 

Mr. Porter. " Whose will did you think it was 
before that ? " 

Guiteau. " It was the Deity's will. No doubt about 
that." 

Mr. Porter. " But you were in doubt as to its being 
His will .? " 

Guiteau. " I was not in any doubt." 

Mr. Porter. " Not even the first two weeks?" 

Guiteau. " There was no doubt as to the inception of 
the act from the Deity ; as to the feasibility of the act, 
I was in doubt." 

Mr. Porter. " You differed in opinion, then, from the 
Deity.?" 

Guiteau. " No, sir, I was testing the feasibility of the 
act, — whether it would be feasible." 

Mr. Porter. " Did you suppose that the Supreme 
Ruler of the Universe would order you to do a thing 
which was not feasible 1 " 

Guiteau. " No, sir, in a certain sense I did not suppose 
it. He directed me to remove the President for the 
good of the American people." 

Mr. Porter. "Did He use the word ' remove ' .'' " 

Guiteau. " That is the way it always came to my 
mind. If two men quarrel, and one kills the other, 
that is murder. This was not even a homicide, for I 
say the Deity killed the President, and not me." 

366 



CROSS-EXAMINATION OF GUITEAU 

Mr, Porter. " Passing from that, your friend Thomas 
North — " 

Guiteau (interrupting). " He is no friend of mine." 

Mr. Porter (continuing). "At page 422 of the evi- 
dence, Thomas North says that in 1859 you struck your 
father from behind his back. Is that true } " 

Gtnteau. " I know nothing about it, sir." 

Mr. Porter. " He swears that you cHnched your 
father after he had risen, and that several blows were 
interchanged. Is that true } " 

Guiteau. " I have no recollection of any such expe- 
rience, sir, at any time. I have no recollection about 
it." 

Mr. Porter. "Your sister swears that in 1876, when 
you were thirty-five years old, that at her place, while 
you were an inmate of her family, you raised an axe 
against her life. Is that true ? " 

Guiteau. " I don't know anything about it, sir." 

Mr. Porter. " You heard the testimony, didn't you } " 

Guiteau. " I heard it." 

Mr. Porter. " You heard your lawyer, in his opening, 
allude to that evidence, and you shouted out at the time 
that it was false } " 

Guiteau. " That is what I did say, but you need not 
look so fierce on me. I do not care a snap for your 
fierce look. Just cool right down. I am not afraid of 
you, just understand that. Go a little slow. Make 
your statements in a quiet, genial way." 

367 



THE ART OF CROSS-EXAMINATION 

Mr. Porter. " Well, it comes to this then, you 
thought God needed your assistance in order to kill 
President Garfield ? " 

Guiteau. " I decline to discuss this matter with you 
any further." 

Mr. Porter. " You thought that the Supreme Power, 
which holds the gifts of life and death, wanted to send 
the President to Paradise for breaking the unity of the 
Republican party, and for ingratitude to General Grant 
and Senator Conkling ? " 

Guiteau. " I think his Christian character had noth- 
ing to do whatever with his political record. Please put 
that down. His political record was in my opinion very 
poor, but his Christian character was good. I myself 
looked upon him as a good Christian man. But he was 
President of the United States, and he was in condition 
to do this republic vast harm, and for this reason the 
Lord wanted him removed, and asked me to do it." 

Mr. Porter. " Have you any communication with the 
Deity as to your daily acts ? " 

Guiteau. " Only on extraordinary actions. He super- 
vises my private affairs, I hope, to some extent." 

Mr. Porter. " Was He with you when you were a 
lawyer 1 " 

Guiteau. " Not especially, sir." 

Mr. Porter. " When you were an unsuccessful law* 
yer.?" 

Guiteau. " Not especially, sir." 

368 



CROSS-EXAMINATION OF GUITEAU 

Mr. Porter. " Was He with you when you were a 
pamphlet pedler ? " 

Guiteau. " I think He was, and took very good care 
of me." 

Mr. Porter. " He left your board bills unpaid ? " 

Guiteau. " Some of them are paid. If the Lord 
wanted me to go around preaching the gospel as I was 
doing as a pamphlet pedler, I had to do my work, 
and let Him look for the result. That is the way the 
Saviour and Paul got in their work. They did not 
get any money in their business, and I was doing the 
same kind of work." 

Mr. Porter. " I think you were kind enough to say 
that the Saviour and Paul were vagabonds on earth ? " 

Guiteau. " That is the fact, I suppose, from the 
record. They did not have any money or any friends." 

Mr. Porter. " Do you think that is irreverent ? " 

Guiteau. " Not in this case. I think it is decidedly 
proper, because the Saviour Himself said that He had 
nowhere to lay His head. Is not that being a vagabond.'' " 

Mr. Porter. " Did you think it was irreverent when 
you said you belonged to the firm, or were working for 
the firm, of ' Jesus Christ and Company ' .? " 

Guiteau. " It is barely possible I may have used that 
expression in one of my letters years ago." 

Mr. Porter. " Did you not hear such a letter read 
on this trial t " 

Guiteau. " If I wrote it, I thought so." 
2 A 369 



THE ART OF CROSS-EXAMINATION 

Mr. Porter. " In your letter to the American people, 
written on the sixteenth of June, more than two weeks 
before the assassination, did you say, * It will make my 
friend Arthur President ' ? " 

Guiteau. " I considered General Arthur my friend 
at that time, and do now. He was a Stalwart, and I 
had more intimate personal relations with him than I 
did with Garfield." 

Mr. Porter. " Had General Arthur, now President, 
ever done anything for you 1 " 

Guiteau. " Not especially, but I was with him every 
day and night during the canvass in New York except 
Sundays. We were Christian men there and we did 
no work on Sundays." 

Mr. Porter. " You never had any conversation with 
him about murder, did you ? " 

Guiteau. " No, sir, I did not." 

Mr. Porter. " Did you, in this letter of the sixteenth 
of June, say, ' I have sacrificed only one ' 1 " 

Guiteau. " I said one life. The word ' life ' should be 
put in." 

Mr. Porter. " That is implied, but not expressed } " 

Guiteau. " Now I object to your picking out sen- 
tences here and there in my letter. You want to read 
the entire letter. I said something there about General 
Arthur and General Grant. You have left all that out. 
You are giving a twist on one word. I decline to talk 
with a man of that character." 

370 



CROSS-EXAMINATION OF GUITEAU 

Mr. Porter. " Did you think you had sacrificed one 
Hfe ? " 

Guiteau. " I can remember it. This is the way [dra- 
matically], — This is not murder. It is a political neces- 
sity. It will make my friend Arthur President and save 
the republic. Grant, during the war, sacrificed thousands 
of lives to save the republic. I have sacrificed only 
one. [Coolly.] Put it in that shape and then you will 
get sense out of it." 

Mr. Porter. " When you sacrificed that one life, it 
was by shooting him with the bull-dog pistol you 
bought ? " 

Guiteau. " Yes, sir, it was. That should have been 
my inspiration. Those are the words that ought to 
go in there, meaning the Deity and me, and then you 
would have got the full and accurate statement. I did 
not do this work on my own account, and you cannot 
persuade this court and the American people ever to 
believe I did. The Deity inspired the act. He has 
taken care of it so far, and He will take care of it." 

Mr. Porter. " Did the American people kill General 
Garfield .? " 

Guiteau. " I decline to talk to you on that subject, 
sir. You are a very mean man and a very dishon- 
est man to try to make my letters say what they do 
not say. That is my opinion of you, Judge Porter. 
I know something about you when in New York. 
I have seen you shake your bony fingers at the jury 

371 



THE ART OF CROSS-EXAMINATION 

and the court, and I repudiate your whole theory on 
this business." 

Mr. Porter. " Did it occur to you that there was a 
commandment, ' Thou shalt not kill ' ? " 

Guiteau. " It did. The divine authority overcame 
the written law." 

Mr. Porter. " Is there any higher divine authority 
than the authority that spoke in the commandments } " 

Guiteau. " To me there was, sir." 

Mr. Porter. " It spoke to you ? " 

Guiteau. " A special divine authority to do that 
particular act, sir." 

Mr. Porter. " And when you pointed that pistol at 
General Garfield and sent that bullet into his back- 
bone, you believed that it was not you, but God, that 
pulled that trigger ? " 

Guiteau. " He used me as an agent to pull the trigger, 
— put it in that shape, — but I had no option in the 
matter. If I had, I would not have done it. Put that 
down." 

Mr. Porter. " Did you walk back and forth in front 
of the door of the ladies' room, watching for the entrance 
of the President .? " 

Guiteau. " I walked backwards and forwards, work- 
ing myself up, as I knew the hour had come." 

Mr. Porter. " Was it necessary to do that to obey 
God ? " 

Guiteau. " I told you I had all I could possibly do 

372 



CROSS-EXAMINATION OF GUITEAU 

to do the act anyway. I had to work myself up and 
rouse myself up." 

Mr. Porter, " Why } " 

Guiteau. " Because all my natural feelings were 
against the act, but I had to obey God Almighty if I 
died the next second, and God had put the work on to 
me, and I had to do it." 

Mr. Porter. " Did you mind about dying the next 
second ? " 

Guiteati. " I knew nothing about what would become 
of me, sir." 

Mr. Porter. " Why did you engage that colored 
man t Was it to drive you to a place of safety .? " 

Guiteau. " I engaged him to drive me to the jail." 

Mr. Porter. " Did you think you would be safer 
there .? " 

Guiteau. " I did not know but what I would be torn 
to pieces before I got there." 

Mr. Porter. " Weren't you a little afraid of it after 
you got there ? " 

Guiteau. " I had no fear about it at all, sir." 

Mr. Porter. " Why did you write to General Sher- 
man to send troops ? " 

Guiteau. " I wanted protection, sir." 

Mr. Porter. " Protection where there was no dan- 
ger?" 

Guiteau. " I expected there would be danger, of 
course." 

373 



THE ART OF CROSS-EXAMINATION 

Mr. Porter. " Why should there be danger ? " 

Guiteau. " I knew the people would not understand 
my view about it, and would not understand my idea 
of inspiration, that they would look upon me r:.s a 
horrible wretch for shooting the President of the 
United States." 

Mr. Porter. " As a murderer ? " 

Gtiitcau. " Yes, I suppose that is so." 

Mr. Porter. " Did you suppose they would hang you 
for it?" 

Guiteau. " No, sir. I expected the Deity would take 
care of me until I could tell the American people that I 
simply acted as His agent ; hence, I wanted protection 
from General Sherman until the people cooled off and 
got possession of my views on the matter. I was not 
going to put myself in the possession of the wild mob. 
I wanted them to have time to tone down so that they 
could have an opportunity to know that it was not my 
personal act, but it was the act of the Deity and me 
associated, and I wanted the protection of these troops, 
and the Deity has taken care of me from that day to 
this." 

Mr. Porter. *' Have you any evidence of that except 
your own statement?" 

Guiteau. " I know it as well as I know that I am 
alive." 

Mr. Porter. •' It depends upon whether the jury be- 
lieve that } " 

374 



CROSS-EXAMINATION OF GUITEAU 

Guiteau. " That is just what the jury is here for, — to 
take into account my actions for twenty years, my travel- 
ling around the country and developing a new system of 
theology, and the way the Deity has taken care of me 
since the second of July, and then the jury are to pass upon 
the question whether I did this thing jointly with the 
Deity, or whether I did it on my own personal account. 
I tell you, sir, that I expect, if it is necessary, that there 
will be an act of God to protect me from any kind of 
violence, either by hanging or shooting." 

Mr. Porter. " Did the Deity tell you that ? " 

Guiteau. " That is my impression about it, sir." 

Mr. Porter. " Oh, it is your impression. Have you 
not had some mistaken impressions in the course of 
your life ? " 

Guiteau. " Never, sir, in this kind of work. I always 
test the Deity by prayer." 

Mr. Porter. " Why did you think you would go to 
jail for obeying a command of God ? " 

Guiteati. " I wanted to go there for protection. I did 
not want a lot of wild men going to jail there. I would 
have been shot and hung a hundred times if it had not 
been for those troops." 

Mr. Porter. " Would there have been any wrong in 
that ? " 

Guiteau. " I won't have any more discussion with you 
on this sacred subject. You are making light of a very 
sacred subject and I won't talk to you." 

375 



THE ART OF CROSS-EXAMINATION 

Mr. Porter. " Did you think to shoot General Gar- 
field without trial — " 

Guiteau (interrupting). " I decline to discuss the 
matter with you, sir." 

Mr. Porter. " Had Garfield ever been tried ? " 
Guiteau. " I decline to discuss the matter with you, 
sir." 

Mr. Porter. " Did God tell you he had to be mur- 
dered ? " 

Guiteau. " He told me he had to be removed, sir." 
Mr. Porter. " Did He tell you General Garfield had 
to be killed without trial ? " 

Guiteau. " He told me he had to be removed, sir." 
Mr. Porter. " When did He tell you so ? " 
Guiteau. " I decline to discuss the matter with you." 
Mr. Porter. " Would it incriminate you if you were 
to answer the jury that question ? " 

Gtiiteau. " I don't know whether it would or not." 

Mr. Porter. " What is your theory of your defence ? " 

Guiteau. " I have stated it very frequently. If you 
have not got comprehension enough to see it by this 
time, I won't attempt to enlighten you." 

Mr. Porter. " It is that you are legally insane, and 
not in fact insane, is it } " 

Guiteau. " The defence is, sir, that it was the Deity's 
act and not mine, and He will take care of it." 

Mr. Porter. " Are you insane at all t " 

376 



CROSS-EXAMINATION OF GUITEAU 

Guiteau. " A great many people think I am very 
badly insane. My father thought I was. My relatives 
think I am badly cranked, and always have thought I 
was off my base." 

Mr. Porter. " You told the jury you were not in fact 
insane } " 

Guiteau. " I am not an expert. Let the experts and 
the jury decide whether I am insane or not. That is 
what they are here for." 

Mr. Porter. " Do you believe you are insane } " 

Guiteau. " I decline to answer the question, sir." 

Mr. Porter. " You did answer before that you were 
legally insane, did you not ? Did you not so state in 
open court ? " 

Guiteau. " I decline to discuss that with you, sir. 
My opinion would not be of any value one way or the 
other. I am not an expert, and not a juryman, and not 
the court." 



377 



CHAPTER XVII 

THE CROSS-EXAMINATION OF RUSSELL SAGE IN LAIDLAW V. 
SAGE (second trial) BY HON. JOSEPH H. CHOATE 

One of the most recent cross-examinations to be made 
the subject of appeal to the Supreme Court General 
Term and the New York Court of Appeals was the 
cross-examination of Russell Sage by the Hon. Joseph H. 
Choate in the famous suit brought against the former 
by William R. Laidlaw. Sage was defended by the late 
Edwin C. James, and Mr. Choate appeared for the 
plaintiff, Mr. Laidlaw. 

On the fourth day of December, 1891, a stranger by 
the name of Norcross came to Russell Sage's New 
York office and sent a message to him that he wanted 
to see him on important business, and that he had a 
letter of introduction from Mr. John Rockefeller. Mr. 
Sage left his private office, and going up to Norcross, 
was handed an open letter which read, " This carpet-bag 
I hold in my hand contains ten pounds of dynamite, and 
if I drop this bag on the floor it will destroy this building 
in ruins and kill every human being in it. I demand 
twelve hundred thousand dollars, or I will drop it. Will 
you give it .? Yes or no ? " 

378 



J 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

Mr. Sage read the letter, handed it back to Norcross, 
and suggested that he had a gentleman waiting for him 
in his private office, and could be through his business 
in a couple of minutes when he would give the matter 
his attention. 

Norcross responded : *' Then you decline my proposi- 
tion ? Will you give it to me ? Yes or no ? " Sage 
explained again why he would have to postpone giving 
it to him for two or three minutes to get rid of some one 
in his private office, and just at this juncture Mr. Laid- 
law entered the office, saw Norcross and Sage without 
hearing the conversation, and waited in the anteroom 
until Sage should be disengaged. As he waited. Sage 
edged toward him and partly seating himself upon the 
table near Mr. Laidlaw, and without addressing him, 
took him by the left hand as if to shake hands with him, 
but with both his own hands, and drew Mr. Laidlaw 
almost imperceptibly around between him and Norcross. 
As he did so, he said to Norcross, " If you cannot trust 
me, how can you expect me to trust you } " 

With that there was a terrible explosion. Norcross 
himself was blown to pieces and instantly killed. Mr. 
Laidlaw found himself on the floor on top of Russell 
Sage. He was seriously injured, and later brought suit 
against Mr. Sage for damages upon the ground that he 
had purposely made a shield of his body from the ex- 
pected explosion. Mr. Sage denied that he had made 
a shield of Laidlaw or that he had taken him by the 

379 



THE ART OF CROSS-EXAMINATION 

hand or altered his own position so as to bring Laid- 
law between him and the explosion. 

The case was tried four times. It was dismissed by 
Mr. Justice Andrews, and upon appeal the judgment 
was reversed. On the second trial before Mr. Justice 
Patterson the jury rendered a verdict of $25,000 in favor 
of Mr. Laidlaw. On appeal this judgment in turn was 
reversed. On a third trial, also before Mr. Justice 
Patterson, the jury disagreed; and on the fourth trial 
before Mr. Justice Ingraham the jury rendered a ver- 
dict in favor of Mr. Laidlaw of $40,000, which judg- 
ment was sustained by the General Term of the 
Supreme Court, but subsequently reversed by the 
Court of Appeals. 

Exception on this appeal was taken especially to the 
method used in the cross-examination of Mr. Sage by 
Mr. Choate. Thus the cross-examination is interesting, 
as an instance of what the New York Court of Appeals 
has decided to be an abuse of cross-examination into 
which, through their zeal, even eminent counsel are 
sometimes led, and to which I have referred in a pre- 
vious chapter. It also shows to what lengths Mr. 
Choate was permitted to go upon the pretext of test- 
ing the witness's memory. 

It was claimed by Mr. Sage's counsel upon the appeal 
that " the right of cross-examination was abused in this 
case to such an extent as to require the reversal of this 
monstrous judgment, which is plainly the precipitation 

380 



THE CROSS-EXAMINATION OP^ RUSSELL SAGE 

and product of that abuse." And the Court of Appeals 
unanimously took this view of the matter. 

After Mr. Sage had finished his testimony in his own 
behalf, Mr. Choate rose from his chair to cross-examine ; 
he sat on the table back of the counsel table, swinging 
his legs idly, regarded the witness smilingly, and then 
began in an unusually low voice. 

Mr. Choate. " Where do you reside, Mr. Sage } " 

Mr. Sage. " At 506 Fifth Avenue." 

Mr. Choate (still in a very low tone). " And what is 
your age now } " 

Mr. Sage (promptly). " Seventy-seven years." 

Mr. Choate (with a strong raising of his voice). " Do 
you ordinarily hear as well as you have heard the two 
questions you have answered me ? " 

Mr. Sage (looking a bit surprised and answering in an 
almost inaudible voice). " Why, yes." 

Mr. Choate. " Did you lose your voice by the ex- 
plosion } " 

Mr. Sage. " No." 

Mr. Choate. " You spoke louder when you were in 
Congress, didn't you ? " 

Mr. Sage. " I may have." 

Mr. Choate, resuming the conversational tone, began 
an unexpected line of questions by asking in a small- 
talk voice, " What jewelry do you ordinarily wear ? " 
Witness answered that he was not in the habit of wear- 
ing jewelry. 

381 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " Do you wear a watch ? " 

Mr. Sage. " Yes." 

Mr. Choate. " And you ordinarily carry it as you 
carry the one you have at present in your left vest 
pocket ? " 

Mr. Sage. " Yes, I suppose so." 

Mr. Choate. " Was your watch hurt by the explo- 
sion.?" 

Mr. Sage. " I believe not." 

Mr. Choate. " It was not even stopped by the explo- 
sion which perforated your vest with missiles } " 

Mr. Sage. " I do not remember about this." 

The witness did not quite enjoy this line of question- 
ing, and swung his eye-glasses as if he were a trifle 
nervous. Mr. Choate, after regarding him in silence 
for some time, said, " I see you wear eye-glasses." The 
witness closed his glasses and put them in his vest 
pocket, whereupon Mr. Choate resumed, " And when 
you do not wear them, you carry them, I see, in your 
vest pocket." 

Mr. Choate. " Were your glasses hurt by that explo- 
sion which inflicted forty-seven wounds on your chest } " 

Mr. Sage. " I do not remember." 

Mr. Choate. " You certainly would remember if you 
had to buy a new pair ? " 

If the witness answered this question, his answer 
was lost in the laughter which the court oflicer could 
not instantly check. 

382 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

Mr. Choate, "These clothes you brought here to show, 
— you are sure they are the same you wore that day? " 

Mr. Sage. " Yes." 

Mr. Clioate. " How do you know ? " 

Mr. Sage. " The same as you would know in a mat- 
ter of that kind." 

Mr. Choate. " Were you familiar with these clothes t " 

Mr. Sage. " Yes, sir." 

Mr. Choate. " How long had you had them } " 

Mr. Sage. " Oh, some months." 

Mr. Choate. " Had you had them three or four 
years ? " 

Mr. Sage. " No." 

Mr. Choate. " And wore them daily except on Sun- 
days?" 

Mr. Sage. " I think not ; they were too heavy for 
summer wear." 

Mr. Choate. " Do you remember looking out of the 
window that morning when you got up to see if it was 
cloudy so you would know whether to wear the old 
suit or not ? " 

Mr. Sage. *' I do not remember." 

Mr. Choate. " Well, let that go now ; how is your 
general health, — good as a man of seventy-seven could 
expect ? " 

Mr. Sage. " Good except for my hearing." 

Mr. Choate. " And that is impaired to the extent 
demonstrated here on this cross-examination ? " 

383 



THE ART OF CROSS-EXAMINATION 

The witness did not answer this question, and after 
some more kindly inquiries regarding his health, Mr. 
Choate began an even more intimate inquiry concerning 
the business career of Mr. Sasre. 

He learned that the millionaire was born in Verona, 
Oneida County, went to Troy when he was eleven years 
old, and was in business there until 1863, when he came 
to this city. 

Mr. Choate. " What was your business in Troy.^ " 

Mr. Sage. " Merchant." 

Mr. Choate. " What kind of a merchant .? " 

Mr. Sage. " A grocer, and I was afterwards engaged 
in banking and railroad operating." 

Mr. Sage, as a railroad builder, excited Mr. Choate's 
liveliest interest. He wanted to know all about that, — 
the name of every road he had built or helped to build, 
when he had done this, and with whom he had 
been associated in doing it. He frequently outlined 
his questions by explaining that he did not wish to ask 
the witness any impudent questions, but merely wanted 
to test his memory. The financier would sometimes 
say that to answer some questions he would have to 
refer to his books, and then the lawyer would pretend 
great surprise that the witness could not remember 
even the names of roads he had built. Mr. Sage said, 
" Possibly we might differ as to what is aiding a road. 
Some I have aided as a director, and some as a stock- 
holder." 

384 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

" No, we won't differ ; we will divide the question," 
Mr. Choate said. " First name the roads you have aided 
in building as a director, and then the roads you have 
aided in building as a stockholder." The witness either 
would not, or could not, and after worrying him with a 
hundred questions on this line, Mr. Choate finally 
exclaimed, " Well, we will let that go." 

Next the cross-examiner brought the witness to con- 
sider his railroad-building experience after he left Troy 
and came to New York, whereby he managed, under 
the license of testing the memory of the witness, to 
show the jury the intimate financial relations which 
had existed between Mr. Sage and Mr. Jay Gould, and 
finally asked the witness point blank how many roads 
he had assisted in building in connection with Mr. 
Gould as director or stockholder. After some very 
lively sparring the witness thought that he had been 
connected in one way or another in about thirty rail- 
roads. " Name them ! " exclaimed Mr. Choate. The 
witness named three and then stopped. 

Mr. Choate (looking at his list). " There are 
twenty-seven more. Please hurry, — you do business 
much faster than this in your office ! " 

Mr. Sage said something about a number of aux- 
iliary roads that had been consolidated, and roads that 
had been merged, and unimportant roads whose directors 
met very seldom, and again said something about refer- 
ring to his books. 

2B 385 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " Your books have nothing to do with 
what I am trying to determine, which is a question of 
your memory." 

The witness continued to spar, and at last Mr. 
Choate exclaimed, " Now is it not true that you have 
millions and millions of dollars in roads that you have 
not named here ? " 

All of the counsel for the defence were on their feet, 
objecting to this question, and Mr. Choate withdrew it, 
and added, " It appears you cannot remember, and 
won't you please say so ? " 

The witness would not say so, and Mr. Choate ex- 
claimed, " Well, I give that up," and then asked, " You 
say you are a banker ; what kind of a bank do you run, 
— is it a bank of deposit.?" The witness said it was 
not, and neither was it a bank for circulating notes. 
" Sometimes I have money to lend," he said. 

Mr. Choate. " Oh, you are a money lender. You 
buy puts and calls and straddles 1 " The witness said 
that he dealt in these privileges. " Kindly explain to 
the jury just what puts and calls and straddles are," 
the lawyer said encouragingly. The witness answered: 
" They are means to assist men of moderate capital to 
operate." 

Mr. Choate. " A sort of benevolent institution, eh ? " 

Mr. Sage. "It is in a sense. It gives men of mod- 
erate means an opportunity to learn the methods of 
business." 

386 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

Mr. Choate. " Do you refer to puts or calls?" 

Mr. Sage. " To both." 

Mr. Choate. " I do not understand." 

Mr. Sage. " I thought you would not " (with a 
chuckle). 

Mr. Choate affected a puzzled look, and asked slowly : 
" Is it something like this : they call it and you put it 1 
If it goes down they get the chargeable benefit, but 
if it goes up you get it? " 

Mr. Sage. " I only get what I am paid for the privi- 
lege." 

Mr. Choate. " Now what is a straddle ? " 

Mr. Sage. " A straddle is the privilege of calling or 
putting." 

" Why," exclaimed Mr. Choate, with raised eyebrows, 
" that seems to me like a game of chance'' 

Mr. Sage. " It is a game of the fluctuation of the 
market." 

" That is another way of putting it," Mr. Choate com- 
mended, looking as if he did not intend the pun. Then 
he asked, " The market once went very heavy against 
you in this game, did it not ? " 

" Yes, it did," the witness replied. 

Mr. Choate. " That was an occasion when your cus- 
tomers could call, but not put, eh ? " 

Mr. Sage looked as if he did not understand and 
made no reply. Mr. Choate then added : " Did you not 
then have a run on your office ? " The witness made 

387 



THE ART OF CROSS-EXAMINATION 

some reply, hardly audible, concerning a party of Balti- 
more roughs, who made a row about his office for an 
hour when he refused to admit them. 

This phase of the question was left in that vague con- 
dition, and the cross-examiner opened a new subject and 
unfolded a three-column clipping from a newspaper, 
which was headed, " A Chat with Russell Sage." 

Mr. Choate. " The reporters called on you soon after 
the explosion ? " 

Mr. Sage. " Yes." 

Mr. Choate. " One visited your house ? " 

Mr. Sage. " Yes." 

Mr. Choate. " Did you read over what he wrote ? " 

Mr. Sage. " No." 

Mr. Choate. " Did you read this after it was printed ? " 

Mr. Sage. " I believe I did." 

Mr. Choate. " It is correct .? " 

Mr. Sage. " Reporters sometimes go on their own 
imagination." 

It developed that the article which Mr. Choate re- 
ferred to was written by a grand-nephew of the witness. 
When it had thus been identified, Mr. Choate again 
asked the witness if the article was correct. 

Colonel James exclaimed : " Are you asking him to 
swear to the correctness of an article from that paper } 
Nobody could do that." 

" No," Mr. Choate quickly responded, " I am asking 
him to point out its errors. Any one can do that." 

388 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

" This," said Colonel James, " is making a comedy of 
errors." 

The witness broke in upon this little relaxation with 
the remark, " The reporter who wrote that was only in 
my house five minutes." 

" Indeed," exclaimed Mr. Choate, waving the three- 
column clipping, " he got a great deal out of you, and 
that is more than I have been able to do." 

The first extract from the newspaper clipping read 
as follows : " Mr. Sage looks hale and hearty for an old 
man, — looks good for many years of life yet." 

Mr. Choate. " Is that true .? " 

Mr. Sage. " We all try to hold our own as long as 
we can." 

Mr. Choate. " You speak for yourself, when you say 
we all try to hold on to all that we can." 

At this Mr. James jumped to his feet again, and 
there was another spirited passage at arms. When all 
had quieted down, Mr. Sage was next asked if the 
article was correct when it referred to him as looking 
like a "warrior after the battle." He thought that the 
statement was overdrawn. The article referred to 
Mr. Sage's having shaved himself that morning, which 
was three mornings after the explosion; and when he 
had read that, Mr. Choate asked : " Did you have any 
wounds at that time that a visitor could see t " 

The witness replied that both of his hands were then 
bandaged. 

389 



THE ART OF CROSS-EXAMINATION 

Mr. Choate. " You must have shaved yourself with 
your feet." 

Mr. Choate. " Was it a relief to you to see Laidlaw 
enter the office when you were talking to Norcross ? " 

Mr. Sage. " No, and if Laidlaw had stayed out in 
the lobby instead of coming into my office, he would 
have been by Norcross when the explosion took place." 

Mr. Choate. " Then you think Laidlaw is indebted 
to you for saving his life instead of your being indebted 
to him for saving yours } " 

Mr. Sage (decidedly). " Yes, sir." 

Mr. Choate. " Oh, that makes this a very simple 
case, then. Did you bring your clerk here to testify 
as to the condition of the office after the police had 
cleared it out ? " 

Mr. Sage, " I did not bring him here, my counsel did." 

Mr. Choate. " I see ; you do not do any barking when 
you have a dog to do it for you." 

Lawyers Dillon and James jumped up, and Mr. James 
said gravely, " Which of us is referred to as a dog t " 

Mr. Choate (laughingly). " Oh, all of us." 

Mr. Choate seldom reproved the witness for the char- 
acter of his answers, although when he was examined 
by Colonel James on the redirect he was treated with 
very much less courtesy, for the Colonel frequently 
requested him, and rather roughly, to be good enough 
to confine his answers to the question. 

390 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

Mr. Choate's next question referred to the diagram 
which had been in use up to that point. He asked the 
witness if it was correct. 

^ Mr. Sage. " I think it is not quite correct, not quite ; 
if the jury will go down there, I would be glad to have 
them, — be glad to do anything. If the jury will go down 
there, I would be very glad to furnish their transportation, 
— if they will go." 

Mr. Choate. " If you won't furnish anything but trans- 
portation, they won't go." 

Mr. Sage. " It is substantially correct. I had a dia- 
gram made and I offered an opportunity to Mr. Laid- 
law's counsel to have a correct one made. I never 
withheld anything from anybody." 

The diagram which Mr. Sage had prepared was pro- 
duced, and upon examination it was seen that it con- 
tained lines indicating a wrong rule, and had some 
other inaccuracies which did not seem to amount to 
much really ; but Mr. Choate appeared to be very much 
impressed with these differences. 

" I want you," he said to the witness, *' to reconcile 
your testimony with your own diagram." 

The witness looked at the diagram for some time, and 
Mr. Choate, observing him, remarked, " You will have to 
make a straddle to reconcile that, won't you .? " 

Some marks and signs of erasures were seen on the 
Sage diagram, which gave Mr. Choate an opportunity to 
ask, in a sensational tone, if any one could inform him 

391 



THE ART OF CROSS-EXAMINATION 

who had been tampering with it. No one could, and 
the diagram was dropped and the subject of a tattered 
suit of clothes taken up again. 

Mr. Choate. " What tailor did you employ at the 
time of the explosion?" 

Mr. Sage. " Several." 

Mr. Choate. " Name them ; I want to follow up these 
clothes." 

Mr. Sage. " Tailor Jessup made the coat and vest." 

Mr. Choate. " Where is his place t " 

Mr. Sage. " On Broadway." 

Mr. Choate. " Is he there now ? " 

Mr. Sage. " Oh, no, he has gone to heaven." 

Mr. Choate. " To heaven where all good tailors go ^ 
Who made the trousers } " 

Mr. Sage. " I cannot tell where I may have bought 
them." 

Mr. Choate. " Bought them } You do not buy ready- 
made trousers, do you '^. " 

Mr. Sage. " I do sometimes. I get a better fit." 

Mr. Choate, " Get benefit .? " 

Mr. Sage. " No ; better fit." 

Mr. Choate. " Where is the receipt for them .? " 

Mr. Sage. " I have none." 

Mr. Choate. " Do you pay money without receipts ? " 

Mr. Sage. " I do sometimes." 

Mr. Choate. " Indeed t " 

Mr. Sage. " Yes; you do not take a receipt for your hat." 

392 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

The vest was then produced, and two holes in the 
outer cloth were exhibited by Mr. Choate, who asked the 
witness if these were the places where the foreign sub- 
stances entered which penetrated his body. The wit- 
ness replied that they were, and Mr. Choate next 
asked him if he had had the vest relined. Mr. Sage 
replied that he had not. " How is it, then," Mr. Choate 
asked, passing the vest to the jury with great satisfaction, 
*' that these holes do not penetrate the lining ? " The 
witness said that he could not explain that, but insisted 
that that was the vest and it would have to speak for 
itself. Mr. Choate again took the vest and counted six 
holes on the cloth on the other side, and asked the wit- 
ness if that count was right. Mr. Sage replied, " I 
will take your count," and then caused a laugh by sud- 
denly reaching out for the vest, and saying, " If you have 
no objection, though, I would like to see it." 

Mr. Choate. " Now are not three of these holes moth- 
eaten .? " 

Mr. Sa^e. " I think not." 

Mr. Choate. " Are you a judge of moth-eaten goods ? " 

Mr. Sa^e. " No." 

Mr. Choate. " Where is the shirt you wore ? " 

Mr. Sage. " Destroyed." 

Mr. Choate. " By whom .? " 

Mr. Sage. " The cook." 

Mr. Choate. " The cook.? " 

Mr. Sage. " I meant the laundress." 

393 



THE ART OF CROSS-EXAMINATION 

The vest was passed to the jury for their inspection, 
and the jurymen got into an eager whispered discussion 
as to whether certain of the holes were moth-eaten or 
not. There was a tailor on the jury. Observing the 
discussion, Mr. Choate took back the garment and said 
in his most winning way, " Now we don't want the jury 
to disagree." He next held up the coat, which was very 
much more injured in the tails than in front, and asked 
the witness how he accounted for that. 

Mr. Sage. " It is one of the freaks of electricity." 
Mr, Choate. " One of those things no fellow can find 
out." 

The witness could not recall how much he had paid 
for the coat or for any of the garments, and after an 
unsuccessful attempt to identify the maker of the 
trousers by the name of the button, which proved to be 
the name of the button-maker, the old clothes were tem- 
porarily allowed to rest, and Mr. Choate asked the witness 
how long he had been unconscious. He replied that 
he thought he was unconscious two seconds. 

Mr. Choate. " How did you know you were not 
unconscious ten minutes } " 

Mr. Sage. " Only from what Mr. Walker says." 

Mr. Choate. " Where is he .? " 

Mr. Sage. " On the Street." 

Mr. Choate. " On Chambers Street, downstairs >. " 

Mr. Sage. " No, on Wall Street." 

Mr. Choate. " Oh, I forgot that the street to you means 

394 



THE CROSS-EXAMINATION OF RUSSELL SAGE 

Wall Street. Were you not up and dressed every day 
after the explosion ? " 

Mr. Sage, " I cannot remember." 

Mr. CJioate. " You did business every day ? " 

Mr. Sage. " Colonel Slocum and my nephew called 
upon me about business, and my counsel looked after 
some missing papers and bonds." 

Mr. Choate. " You then held some Missouri Pacific 
collateral trust bonds } " 

Mr. Sage. " Yes." 

Mr. Choate. " How many t " 

Mr. Sage. " Cannot say." 

Mr. Choate. " Can't you tell within a limit of ten to 
one thousand ? " 

Mr. Sage. " No." 

Mr. Choate. " Nor within one hundred to two hun- 
dred.?" 

Mr. Sage. " No." 

Mr. Choate. " Is it because you have too little memory 
or too many bonds.? How many loans did you have 
out at that time ? " 

Mr. Sage. " I cannot tell." 

Mr. Choate. " Can you tell within two hundred thou- 
sand of the amount then due you from your largest 
creditor .? " 

Mr. Sage. " Any man doing the business I am — " 

Mr. Choate. " Oh, there is no other man like you in 
the world. No, you cannot tell within two hundred 

395 



THE ART OF CROSS-EXAMINATION 

thousand of the amount of the largest loan you then had 
out, but you set up your memory against Laidlaw's ? " 

Mr. Sage. " I do." 

Mr. Choate. " Were you not very excited ? " 

Mr. Sage. " I was thoughtful. I was self-poised. I 
did not believe his dynamite would do so much damage, 
or that he would sacrifice himself. " 

Mr. Choate. "Never heard of a man killing him- 
self .? " 

Mr. Sage. " Not in that way." ^ 

* Extracts from New York Sun. March, 1894. 



396 



CHAPTER XVIII 

GOLDEN RULES FOR THE EXAMINATION OF WITNESSES 

David Paul Brown, a very able 7iisi prius lawyer of 
great experience at the Philadelphia Bar, many years 
ago condensed his experiences into eighteen paragraphs 
which he entitled, " Golden Rules for the Examination 
of Witnesses." 

Although I am of the opinion that it is impossible to 
embody in any set of rules the art of examination of wit- 
nesses, yet the " Golden Rules " contain so many useful 
and valuable suggestions that it is well to reprint them 
here for the benefit of the student. 

Golden Rules for the Examination of Witnesses 

First, as to your own witnesses. 

I. If they are bold, and may injure your cause by pert- 
ness or forwardness, observe a gravity and ceremony of 
manner toward them which may be calculated to repress 
their assurance. 

II. If they are alarmed or diffident, and their thoughts 
are evidently scattered, commence your examination 
with matters of a familiar character, remotely connected 
with the subject of their alarm, or the matter in issue ; as, 

397 



THE ART OF CROSS-EXAMINATION 

for instance, — Where do you live ? Do you know the 
parties ? How long have you known them ? etc. And 
when you have restored them to their composure, and 
the mind has regained its equilibrium, proceed to the 
more essential features of the case, being careful to be 
mild and distinct in your approaches, lest you may again 
trouble the fountain from which you are to drink. 

III. If the evidence of your own witnesses be unfavor- 
able to you (which should always be carefully guarded 
against), exhibit no want of composure; for there are 
many minds that form opinions of the nature or char- 
acter of testimony chiefly from the effect which it may 
appear to produce upon the counsel. 

IV. If you perceive that the mind oi the witness is 
imbued with prejudices against your client, hope but 
little from such a quarter — unless there be some facts 
which are essential to your client's protection, and which 
that witness alone can prove, either do not call him, or 
get rid of him as soon as possible. If the opposite coun- 
sel perceive the bias to which I have referred, he may 
employ it to your ruin. In judicial inquiries, of all pos- 
sible evils, the worst and the least to be resisted is an 
enemy in the disguise of a friend. You cannot impeach 
him; you cannot cross-examine him; you cannot dis- 
arm him ; you cannot indirectly, even, assail him ; and 
if you exercise the only privilege that is left to you, and 
call other witnesses for the purposes of explanation, you 
must bear in mind that, instead of carrying the war into 

398 



:,i* J-fl? **^- i-i 




GOLDEN RULES FOR EXAMINING WITNESSES 

the enemy's country, the struggle is still between sections 
of your own forces, and in the very heart, perhaps, of your 
own camp. Avoid this, by all means. 

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 wit- 
ness doubly operative against the party calling him, but 
also deprive that party of the power of counteracting the 
effect of the testimony. 

VI. Never ask a question without an object, nor 
without being able to connect that object with the case, 
if objected to as irrelevant. 

VII. Be careful not to put your question in such a 
shape that, if opposed for informality, you cannot sustain 
it, or, at all events, produce strong reason in its support. 
Frequent failures in the discussions of points of evidence 
enfeeble your strength in the estimation of the jury, and 
greatly impair your hopes in the final result. 

VIII. Never object to a question from your adversary 
without being able and disposed to enforce the objection. 
Nothing is so monstrous as to be constantly making 
and withdrawing objections ; it either indicates a want 
of correct perception in making the77t, or a deficiency of 
real or of moral courage in not making them good. 

IX. Speak to your witness clearly and distinctly, as if 
you were awake and engaged in a matter of interest, 

399 



THE ART OF CROSS-EXAMINATION 

and make him also speak distinctly and to your question. 
How can it be supposed that the court and jury will be 
inclined to listen, when the only struggle seems to be 
whether the counsel or the witness shall first go to sleep ? 

X. Modulate your voice as circumstances may direct, 
" Inspire the fearful and repress the bold." 

XI. Never begin before you are ready, and always 
finish when you have done. In other words, do not ques- 
tion for question's sake, but for an answer. 

Cross-examination 

I. Except in indifferent matters, never take your eye 
from that of the witness ; this is a channel of communi- 
cation from mind to mind, the loss of which nothing can 
compensate. 

" Truth, falsehood, hatred, anger, scorn, despair, 
And all the passions — all the soul — is there." 

II. Be not regardless, either, of the voice of the wit- 
ness ; next to the eye this is perhaps the best interpreter 
of his mind. The very design to screen conscience 
from crime — the mental reservation of the witness — 
is often manifested in the tone or accent or emphasis of 
the voice. For instance, it becoming important to know 
that the witness was at the corner of Sixth and Chestnut 
streets at a certain time, the question is asked. Were 
you at the corner of Sixth and Chestnut streets at six 
o'clock? A frank witness would answer, perhaps I 

400 



GOLDEN RULES FOR EXAMINING WITNESSES 

was near there. But a witness who had been there, de- 
sirous to conceal the fact, and to defeat your object, 
speaking to the letter rather than the spirit of the in- 
quiiy, answers, No ; although he may have been within 
a stone's throw of the place, or at the very place, within 
ten minutes of the time. The common answer of such 
a witness would be, I was not at the corner at six d clock. 
Emphasis upon both words plainly implies a mental 
evasion or equivocation, and gives rise with a skilful 
examiner to the question. At what hour were you at the 
corner, or at what place were you at six o'clock } And 
in nine instances out of ten it will appear, that the wit- 
ness was at the place about the time, or at the time 
about the place. There is no scope for further illustra- 
tions ; but be watchful, I say, of the voice, and the 
principle may be easily applied. 

III. Be mild with the mild; shrewd with the crafty; 
confiding with the honest; merciful to the young, 
the frail, or the fearful ; rough to the ruffian, and a 
thunderbolt to the liar. But in all this, never be un- 
mindful of your own dignity. Bring to bear all the 
powers of your mind, not that you may shine, but that 
virtue may triumph, and your cause may prosper. 

IV. In a criminal, especially in a capital case, so long 
as your cause stands well, ask but few questions ; and 
be certain never to ask any the answer to which, if 
against you, may destroy your client, unless you know 
the witness perfectly well, and know that his answer will 

2c 401 



THE ART OF CROSS-EXAMINATION 

be favorable equally well ; or unless you be prepared with 
testimony to destroy him, if he play traitor to the truth 
and your expectations. 

V. An equivocal question is almost as much to be 
avoided and condemned as an equivocal answer ; and it 
always leads to, or excuses, an equivocal answer. Single- 
ness of purpose, clearly expressed, is the best trait in the 
examination of witnesses, whether they be honest or the 
reverse. Falsehood is not detected by cunning, but by 
the light of truth, or if by cunning, it is the cunning of 
the witness, and not of the counsel. 

VI. If the witness determine to be witty or refractory 
with you, you had better settle that account with him at 
first, or its items will increase with the examination. 
Let him have an opportunity of satisfying himself either 
that he has mistaken your power, or his own. But in 
any result, be careful that you do not lose your temper; 
anger is always either the precursor or evidence of 
assured defeat in every intellectual conflict. 

VII. Like a skilful chess-player, in every move, fix 
your mind upon the combinations and relations of the 
game — partial and temporary success may otherwise 
end in total and remediless defeat. 

VIII. Never undervalue your adversary, but stand 
steadily upon your guard ; a random blow may be just 
as fatal as though it were directed by the most consum- 
mate skill ; the negligence of one often cures, and some- 
times renders effective, the blunders of another. 

402 



i 



GOLDEN RULES FOR EXAMINING WITNESSES 

IX. Be respectful to the court and to the jury ; kind 
to your colleague ; civil to your antagonist ; but never 
sacrifice the slightest principle of duty to an overweening 
deference toward either. 

In " The Advocate, his Training, Practice, Rights, and 
Duties," written by Cox, and published in England about 
a half century ago, there is an excellent chapter on cross- 
examination, to which the writer is indebted for many 
suggestions. Cox closes his chapter with this final 
admonition to the students, to whom his book is evi- 
dently addressed : — 

" In concluding these remarks on cross-examination, 
the rarest, the most useful, and the most difficult to be 
acquired of the accomplishments of the advocate, we 
would again urge upon your attention the importance 
of calm discretion. In addressing a jury you may some- 
times 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 with- 
out 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. 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 

403 



THE ART OF CROSS-EXAMINATION 

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. Even if the wisdom of your abstinence be not 
apparent at the moment, it will be recognized in the 
result. Your fame may be of slower growth than that 
of the talker, but it will be larger and more enduring." 



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404 



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