Sunday, March 20, 2016


Among the legends that grew up after Lincoln’s death, there is a story of Lincoln persuading a jury to ignore the law in a case which he handled in 1847. According to the traditional story, an elderly gentleman named either Cass or Case sold a “prairie team” to two brothers named Snow. A prairie team consisted of a heavy duty plow for breaking never-before cultivated prairie land and a team of oxen to pull it. The Snow brothers signed a note for the team, which they refused to pay when it came due. Cass hired Lincoln to sue on the note. The lawyers defending the Snows interposed a plea of infancy and thus the issue was joined. At the trial it was readily admitted that the brothers signed the note, but the defense called a witness to testify that they were both under the age of 21. 

Stymied and enraged by the hyper-technical defense that the brothers’ crooked lawyers had interposed, Lincoln supposedly gave a rousing final argument which convinced the jury to ignore the law and find for the plaintiff in spite of the fact that the boys were not legally obligated to pay the note. Lincoln accomplished this feat by putting the brothers’ lawyer on trial.  Lincoln’s argument to the jury went something like this:

Gentlemen of the jury: are you willing to allow these boys to begin life with this shame and disgrace attached to their characters? If you are, I am not. The best judge of human nature that ever wrote has left these immortal words for all of us to ponder:

    Who steals my purse steals trash;‘tis something,       nothing;

    ‘Twas mine, ‘tis his, and has been slave to            thousands;
         But he that filches from me my good name,
         Robs me of that which not enriches him,
         And makes me poor indeed.

These poor innocent boys would never have attempted this low villainy had it not been for the advice of these men [their lawyers]. It was bad advice in morals and in law. The law never sanctions cheating, and a lawyer must be very smart indeed to twist the law so that it will sanction fraud.

After finishing a scathing rebuke of the boys unscrupulous lawyers Lincoln concluded by saying “And now, gentlemen, you have it in your power to set these boys right before the world.” The jury was allegedly so moved by Lincoln’s tongue lashing of his opposing counsel that they returned a verdict for the plaintiff without leaving their seats; and the brothers were so repentant that they willingly paid the purchase price.  It is a pretty story of how the saintly Lincoln achieved substantial justice, defeated the efforts of unethical shysters, and set two wayward children on the path to an honorable life by persuading the jury to ignore the law, but there is likely little truth in it.

What really happened, however, demonstrates that Lincoln was not only a surgical cross-examiner but also a careful pleader.

Mr. Cass did sell a prairie team to the Snow brothers; they were under age at the time they signed the note promising to pay for the team; Lincoln did file suit on Cass’s behalf; and the brothers’ attorneys interposed the defense of infancy to defeat Cass’s claim for payment of the note. Cass, however, had patiently allowed the Snow brothers ample time to pay the note and only filed suit after going for two years without being paid. All the defense had to do to defeat the claim on the note was to produce a witness who could testify that the Snows were under 21 when they signed the note.

As the defense witness testified on direct examination, the presiding judge, Samuel H. Treat Jr., immediately saw the flaw in the defense. At the time of the trial the brothers were undoubtedly over 21 and fully responsible for debts incurred as adults. If they still had Cass’s prairie team, and they had not paid for it, they could be compelled to pay the purchase price. A legally binding contract consists of an offer and an acceptance. Cass offered to sell the team for a set price when the boys were under age. They may not have been able to accept the team at the time they took possession, but they made a legally binding acceptance of Cass’s offer when they kept the oxen after coming of age. They owed Cass the money for goods sold and delivered, but they did not owe money on the note they executed when still under 21.

Treat saw that the case would rise and fall on how Lincoln had worded the complaint. Common law pleading was very strict. If Lincoln had filed a one count complaint simply alleging money owed on the note, Judge Treat would be required to direct a verdict for the defense. If, however, he had included a second count for goods sold and delivered, he could collect the price of the prairie team notwithstanding his inability to collect on the note.

When the defense witness finished testifying on direct examination Treat asked Lincoln “Is there a count in the declaration [complaint] for oxen and plow sold and delivered?”

Lincoln, ever the careful pleader, replied “Yes, and I have only two or three questions to ask the witness.” On cross-examination Lincoln then proceeded to prove that the brothers still had the prairie team:

Q: Where is the prairie team now?
A: On the farm of the Snow boys.
Q: Have you seen anyone breaking prairie with it lately?
A: Yes. The Snow boys were breaking up with it last week.
Q: How old are the boys now?
A: One is a little over twenty-one, and the other is near twenty-three.

So we see that Lincoln won his case through careful pleading and a surgical cross-examination; not by using his considerable oratorical skill to convince the jury to ignore the law. We can see that the heart and soul of Lincoln’s final speech did not come when he allegedly castigated the defense lawyers, but when he said:

The judge will tell you what your own sense of justice has already told you—that if those boys were mean enough to plead the baby act when they came to be men, they at least ought to have taken the oxen and plow back to Mr. Cass. They ought to know that they cannot go back on their contract and also keep what the note was given for.

The supposed tongue-lashing of the Snow boys’ lawyers is more likely legend than fact. In the unlikely event that Lincoln said anything unkind about the opposing lawyers, he must have said it with his tongue in his cheek.

It is plain that the lawyers defending the Snows did not persuade two innocent boys to make use of a sleazy dodge to evade payment. The Snows were deadbeats. They had refused to pay the bill for the oxen for two years before they got sued; and they certainly didn’t hire or consult their lawyers until they got sued. Lincoln knew as well as anyone that the lawyers interposed a valid legal defense when they pled the “baby act;” and he knew that defense lawyers are ethically required to use every lawful means to defend their clients.

Saturday, January 23, 2016


Francis Wellman, author of The Art of Cross-Examination and a turn-of-the-twentieth-century New York prosecutor is reputed to have litigated more than 1,000 jury trials over the course of a 30 year career at the bar. During that time he gained a well-deserved reputation as a deadly cross-examiner, and his contemporaries could not mention him without also mentioning the first case in which he showcased his considerable talents—the Carlyle Harris murder trial.

Harris, a brilliant but flawed medical student at the New York College of Physicians and Surgeons, fancied himself something of a Don Juan, boasting that he could have any woman he wanted by fair means or foul. If he could have them no other way, he would talk them into a secret marriage under assumed names and then abandon them. Then he met, wooed, and won Helen Potts, a beautiful but demur girl of 19 who refused his advances until he proposed a secret marriage. Helen’s mother discovered the secret marriage and began lobbying Harris to publicly marry her daughter on pain of being scandalously exposed as a blackguard. Harris felt he could not stand exposure for three reasons: (1) It would crimp his style as a seducer of young women; (2) it would get him kicked out of medical school as morally unfit to practice medicine; and (3) it would prompt his rich grandfather to disinherit him.

Less than two weeks before Mrs. Potts’s deadline for the public marriage, Helen died after taking a headache remedy prescribed for her by Harris. The symptoms were those of morphine poisoning, and the autopsy revealed morphine poisoning. Harris was indicted for murder, and his lawyers defended on the theory that the young lady could just as easily have died of uremic poisoning. The prosecution’s “smoking gun” proof of morphine poisoning was the fact that prior to death Helen’s irises had symmetrically contracted until her pupils were mere pinpoints. All the prosecution experts testified that this symmetrical contraction of the pupils was evidence of morphine poisoning and nothing else.

The defense called an eminent expert from an out-of-town medical school, a scholar who had written extensively on the subject, to testify that the “smoking gun” was no such thing. As a matter of fact, he was aware of one case of morphine poisoning where only one iris contracted to a pinpoint and the other remained dilated. This emphatic testimony from such a highly credentialed expert had the spectators in the packed courtroom whispering that the prosecution had lost the case—but Wellman had not cross-questioned yet. We will allow Wellman himself to describe what happened when he undertook the cross-examination of the expert:

If Jerome [the defense attorney] could succeed in discovering a single authentic case where the pupils were not symmetrically contracted and where death had resulted from an overdose of morphine, the defense he had constructed with such diligence and skill would win his case, or as he probably would have expressed it "do the trick."

Accordingly he made a trip to Philadelphia and there found just the witness he needed in the person of a sweet old Professor Doctor who called himself a toxicologist and who claimed that he had made a specialty of the study of the effects of poisons for about forty years.

On the witness stand this witness lived up to Jerome's fondest hopes and gave it as his unqualified opinion that symmetrical contraction of the pupils of both eyes could not be relied upon as excluding all other causes of death but morphine. He had known a case of undoubted death from morphine, where the pupil of only one eye was contracted, the poison not having affected the other eye in any way.

If this testimony had stood the test of cross-examination, Jerome's ambition to acquit Harris would have been accomplished and with it perhaps his own reputation as an outstanding trial lawyer, but (and I cite it as still another striking example of the important part preparation plays in the outcome of a case) it so happened that I had had, roughly speaking, about five thousand cases of morphine poisoning examined and tabulated. I knew that in only one of them had the drug failed to contract both pupils symmetrically to a pin point.

Because of this investigation I thought I saw a chance to spring one of my favorite surprises. If I could lead up to it cautiously enough I might create a situation where I could pull a genuine rabbit out of the hat and perhaps even decide the case then and there.

By easy steps I persuaded the Professor to admit that the one case he had mentioned contradicted all his previous notions about the effect of morphine poisoning. BUT (now I felt that I was on dangerous ground)-

Q: Was it in the case of one of your own patients?
A: No.

Q: Was it ever authentically recorded in any medical book?
A: No.

Q: Do you know in what city the patient died?
A: Washington, D. C.

Q: Had you obtained you information about the case mainly from the Washington newspapers?
A: I had. [I was getting nearer and nearer to the identification of the one exceptional case that had been furnished me].

Q: Do you know the patient's name?
A: I don’t remember.

Q: Could I refresh your memory?
A: Perhaps. (And now I nearly stopped breathing).

Q: Was the name Mr. ---?
A: Yes. I remember it now.

Q: Did you personally investigated the case?
A: No.

Q: Well, perhaps it will interest you to know that I have investigated it and in the case you have referred to the patient had one glass eye?

Jerome nearly collapsed, along with his defense. He fairly begged the Judge to adjourn the court and give him an opportunity to investigate further (but really to get his second wind). It was no use. He tried hard the next morning with some new doctors, but his client's liberty had gone out of the window the afternoon before.

This account, which comes from Wellman’s autobiography, Luck and Opportunity, written some 40 years after the trial, is an example of two things (1) the value of preparation in dealing with an overconfident expert, and (2) the fallibility of eyewitness testimony. Wellman got the gist of the story right, but as he told and retold the story over the decades his performance became far more dramatic than it actually was. The actual transcript of that portion of Wellman’s cross-examination reads as follows:

Q. Now you state, do you not, that the symptoms [symmetrical contraction of the irises] could not be told of morphine poisoning with positiveness?
A. Yes, sir.

Q. That that was your best opinion upon your reading and upon your own experience; your own experience in twenty years is confined to one case; is your reading confined to your own book?
A. No, sir.

Q. Is your reading confined to your own book?
A. No, I say no.

Q. But I suppose you embodied in your book the results of your reading, didn't you?
A. I tried to, sir.

Q. Allow me to read to you from page 166.

THE COURT: Of what?

Mr. WELLMAN: Of his own book on Therapeutics and its Practice. (Reading.) "I have thought that inequality of the pupils"—that is where they are not symmetrically contracted—" I have thought that inequality of the pupils is proof that a case is not one of narcotism; but Prof. Taylor has recorded a case of opium poisoning in which it occurred."

Q. So that until you heard of the case that Prof. Taylor had reported in which it occurred, your opinion before that was that it never had occurred, symmetrical contraction of the eyes, besides morphine poisoning?
A. No, sir.

Q. Now, did you inquire and did you inform yourself that the case of which Professor Taylor spoke, was a case where a man had one eye?

[Objection by Mr. Jerome overruled].

Q. Before you made the statement in your book that the case Professor had cited, did you look it up and find that it had one eye? Yes or no?
A. Not according to my remembrance.

Wellman actually made the point he remembered, but he did not make it in quite as dramatic a fashion as he remembered. He also misremembered Jerome’s collapse. After Wellman had scored his point on the witness, Jerome immediately jumped up to try to repair the damage on redirect examination. He did not collapse until the following day, when he became completely exhausted and disoriented while conducting the direct examination of another expert witness. The trial was at that time in its third week, and both he and Wellman were near the point of total collapse. Judge Smyth gave the lawyers a three day weekend, and Jerome came back strong on the following Monday, fighting like a tiger to save his client from the gallows.

Saturday, January 16, 2016


The demeanor and memory of the witness while testifying are an critical factors for the fact finder, whether judge or jury, to consider. Jury instructions guide the fact finder to consider the witness’s demeanor and memory. For instance, one state’s pattern instruction provides:

You are the sole judges of the credibility of the witness. You are also the sole judges of the value or weight to be given to the testimony of each witness. In considering a witness's testimony, you may consider these things: the opportunity of the witness to observe or know the things they testify about; the ability of the witness to observe accurately; the quality of a witness's memory while testifying; the manner of the witness while testifying; any personal interest that the witness might have in the outcome or the issues; any bias or prejudice that the witness may have shown; the reasonableness of the witness's statements in the context of all of the other evidence; and any other factors that affect your evaluation or belief of a witness or your evaluation of his or her testimony. Washington Pattern Jury Instruction, Civil 1.02 (emphasis added)

It is incumbent upon the cross-examiner to watch the manner of the witness while testifying and note any signs of deception or evasion. Equally important is to pay close attention to how well the witness remembers some facts as opposed to others.  Then, in closing argument the cross-examiner can close the circle by pointing out the telltale signs to the jury or judge.

A federal judge’ recent decision in granting a new trial provides a good illustration of how the manner and memory of a witness can influence the fact finder. U.S. District Judge Barbara Rothstein ordered a new trial after a jury had awarded $21.5 million to James Hausman. Hausman claimed that he suffered seizures after an automatic glass door on the Holland America Line cruise ship struck him in the head. See the video above.

            Judge Rothstein held a post-trial hearing after an assistant to Hausman stepped forward and said that Hausman had deleted emails that revealed inconsistencies in Hausman’s account. Judge Rothstein found the assistant’s testimony believable. And, she found that Hausman’s was not credible. Her findings reveal how she weighed Hausman’s manner and memory while testifying in assessing his credibility, as follows:

As a witness, he came across evasive and untrustworthy. He appeared to weigh each answer, not for its truthfulness, but to assess whether it would damage his case. Mr. Hausman also seemed to capitalize on his alleged brain injury when it was convenient for him. He was confused or claimed memory loss when confronted with a question or exhibit that appeared to undermine his claims, yet animated and full of information when his testimony supported his case.”

Monday, January 4, 2016


Should Bill Cosby ever go on trial and decide to testify, the cross-examination could be a prosecutor’s dream come true. Montgomery County, Pennsylvania district attorney Kevin Steele just recently charged Cosby with aggravated indecent assault upon Andrea Constand that allegedly occurred in 2004.
            Important to the prosecution’s case is the deposition of Cosby taken pursuant to Constand’s civil suit, which eventually settled in 2006. A federal judge released the deposition this past July. And, the media’s emphasis on the deposition as the reason for the re-evaluation of the case and the filing of charges against Cosby has overshadowed the other evidence in the case. A review of the Affidavit of Probable Cause reveals numerous admissions by Cosby that can be used during both the prosecution’s case in chief and the cross of Cosby if he takes the stand (quotations in this piece are from the Affidavit).
            Suppose you were the prosecutor planning the cross-examination of Bill Cosby. Your primary goal would be to elicit concessions supporting your case theory or undercutting the defense case theory. Here, let’s just focus on obtaining information on cross to bolster the prosecution’s case. Utilizing the concession-seeking methodology explained in the Cross-Examination Handbook (Chapters 3 and 4), begin planning with the prosecution’s legal theory, which is aggravated indecent assault under Pennsylvania law, which in pertinent parts provides:

§ 3125.  Aggravated indecent assault.
(a)  Offenses defined.. . a person who engages in penetration, however slight, of the genitals or anus of a complainant with a part of the person's body for any purpose other than good faith medical, hygienic or law enforcement procedures commits aggravated indecent assault if:
(1)  the person does so without the complainant's consent; . . .
(4)  the complainant is unconscious or the person knows that the complainant is unaware that the penetration is occurring;
(5)  the person has substantially impaired the complainant's power to appraise or control . . . her conduct by administering or employing, without the knowledge of the complainant, drugs, intoxicants . . . for the purpose of preventing resistance; . . .

     Narrowing the focus more, assume you are seeking Cosby’s concessions to facts supporting two elements of the charge: (1) Cosby committed a sexual act that qualifies under the statute and (2) Cosby substantially impaired Constand’s power to appraise or control her conduct by administering or employing without her knowledge, drugs or intoxicants for the purpose of preventing resistance.
            First, regarding gaining concessions from Cosby concerning the sex act he committed upon the victim, what evidence exists that would require him to concede on cross that he did it? It isn’t only what he said during the deposition.  Before the deposition he not only admitted the acts to the police but also to the victim’s mother. The victim told her mother what Cosby had done to her, and her mother called Cosby. The Affidavit of Probable Cause states that Cosby admitted the sex act to the victim’s mother. On January 14, 2005, Cosby was interviewed by the police and he admitted “he touched her bare breast and her private parts (genitalia).” When asked if he had sexual intercourse with the victim, he said “never asleep or awake.” During the deposition, Cosby admitted that he “digitally penetrated the victim’s vagina.” With these prior statements by Cosby, the prosecutor can construct a series of questions to establish the sex act element of the charge. In the unlikely situation that Cosby were to deny committing the act, the prosecutor can impeach him with the prior inconsistent statements (see Chapter 7 in Cross-Examination Handbook for techniques for impeachment with a prior inconsistent statement). It is unlikely that Cosby will deny making the statements, and the defense is probably going to be consent. The defense likely will own the admissions during Cosby’s direct examination in order to pull the sting. Besides, the prosecution will offer Cosby’s admissions during its case in chief.
            Second, the defense is more likely to claim that Cosby did not provide the victim with drugs to prevent her from resisting, that Cosby didn’t substantially impair her or both. What concessions must Cosby provide on cross to the effect that he did these things to the victim? Again, Cosby is locked in by his prior statements to the victim’s mother, the police and in the civil case deposition. He’ll either provide the cross-examiner with concessions or be impeachable with prior inconsistent statements. He gave conflicting stories about the nature of the drugs. He told the victim that the pills were herbal. He told her mother that the pills were of a prescription kind but that he had bad eyesight and couldn’t read the bottle. He promised to write the name of the drug down and mail it to her, but didn’t. Then, Cosby told the police “he gave the victim Benadryl, which is an over-the-counter medicine not dispensed in a prescription bottle as Cosby told Mrs. Constand.” During the deposition, he testified “that after some initial conversation, he went upstairs and got pills, ‘brought them down,’ and ‘offered them to [the victim].’ Cosby testified that he gave the victim three halved pills, which he described as ‘three friends to make [her] relax.’ This is contrary to his statement to police, in which Cosby said he gave her ‘one whole and then one…half.’”
            In addition to Cosby’s inconsistent prior statements  about the pills, which constitute evidence of awareness that he was using drugs to impair Ms. Constand, and his efforts to minimize the nature of the drugs and claim consent, he must admit on cross to statements and actions that are consistent with a person who has committed a wrongful act. He will either admit to them or be impeached, again with prior inconsistent statements. The Affidavit of Probable Cause explains: “Further indicative of Cosby's consciousness of guilt is the fact that, when confronted by Mrs. Constand over the telephone, he apologized to both her and the victim, while offering significant financial assistance. Cosby not only offered to pay for the victim's therapy, but also her graduate school tuition and expenses for travel to Florida. Investigators recognize that individuals who are falsely accused of sexual assault generally do not unilaterally offer generous financial assistance, and apologies, to their accuser and their accuser's family. To the contrary, such conduct is consistent with offenders who are seeking to make amends for wrongful behavior and prevent involvement by law enforcement.” On cross, the prosecutor can extract concessions from Cosby to the effect that he offered to pay and that he apologized. Then, the prosecutor can argue in closing that the admissions prove the defendant committed aggravated sexual assault.
       All in all, Cosby’s prior statements provide plenty of admissions to introduce in the prosecution’s case in chief and harvest again on cross-examination.
       And, then there is the 404(b) evidence, which could provide more concession-seeking content for cross-examination of Bill Cosby.

Afternote: Going back over a year, the Seattle Times on November 10, 2014, under the headline “Prosecutor on Cosby allegation: ‘I thought he did it,’” reported:
“When Bruce Castor, then the Montgomery County District Attorney, decided not to file sexual-assault charges against comedian Bill Cosby in 2005, it wasn’t because he didn’t believe the woman who said Cosby had drugged and groped her.
“’Now I can say I thought he did it,’ Castor said in an interview Wednesday. ‘But back then I would have been accused of tainting the jury that was going to hear the civil case.’”