A Lesson from the Scriptures
The thirteenth chapter of Daniel (or the Apocryphal book of Susanna) tells the story of an accusation of adultery against a beautiful young woman named Susanna. The story is probably fictitious, having been composed possibly as early as the period of the Exile, but having been added to the book of Daniel around 100 BCE. It does, however, give a good illustration of a cross-examination contradiction technique.
Susanna was married to Joachim, a wealthy man who had a garden adjoining his home. Susanna customarily went into her husband's garden to take daily walks. Two elders who sat at Joachim’s house adjudicating disputes noticed her and lusted after her. They admired her from afar for some time before deciding to take action against her.
One particular day, they adjourned court and pretended to go but secretly hid in the garden. Susanna and her maidens went into the garden to walk, and Susanna sent her maidens out so that she could bathe alone. After the maidens left, the elders accosted Susanna and urged her to have sex with them, threatening to accuse her of adultery if she refused.
Susanna told them that it was better for her to fall into their hands than to submit to their wishes and sin. She began to cry out, as did the elders, and when help came, they accused her of adultery.
The next day Susanna was summoned to appear and answer the charges. Before an assembly of the people, the elders placed their hands on Susanna’s head and testified that they saw her committing adultery with a young man. They further testified that when they saw the two together, the man overpowered them and escaped. Susanna’s prospects looked bleak, and the court had actually sentenced her to death when a young lawyer by the name of Daniel came to her rescue. His first action as defense counsel was to invoke the rule. After the witnesses had been sequestered, he called one of the elders to the witness stand and asked him one single question:
Q. O thou that art grown old in evil days, now are thy sins come out, which thou has committed before in judging unjust judgments, oppressing the innocent, and letting the guilty go free, whereas the Lord saith: “The innocent and the just thou shalt not kill.” Now then if thou sawest her, tell me under what tree thou sawest them conversing together.
It would be difficult to imagine a more poorly worded question. After receiving the elder’s answer, Daniel dismissed him and called the second elder. His sole question of the other elder was:
Q. O thou seed of Chanaan, and not of Juda, beauty hath deceived thee, and lust hath perverted thy heart. Thus did you do to the daughters of Israel, and they for fear conversed with you, but a daughter of Juda would not abide your wickedness. Now, therefore, tell me, under what tree didst thou see them conversing together.
Let’s review Professor Irving Younger’s Ten Commandments of Cross Examination:
I. Be brief.
II. Short questions, plain words.
III. Nothing but leading questions.
IV. Never ask a question to which you don’t already know the answer.
V. Listen to the answer.
VI. Don’t quarrel with the witness.
VII. Never permit the witness to explain.
VIII. Don’t give the witness an opportunity to repeat his story.
IX. Avoid the one question too many.
X. Save the ultimate point for summation.
How many commandments did Daniel’s two questions violate? I count six. The questions were not brief. He asked long questions and used circumlocutions. The questions were open ended. He didn’t know the answers to his question. He quarreled with the witnesses. He gave them an opportunity to repeat their story. Before we disbar Daniel for ineffective assistance of counsel, we need to look at the answers the elders gave. One said he saw Susanna under a mastic tree. The other said she was under a holm tree. Daniel’s technique left something to be desired, but his theory was impeccable. He used the classic cross-examination tactic of creating conflict among the eyewitnesses. Daniel’s cross-examination could not have been more successful. The court discounted the testimony of the elders, found Susanna not guilty, and in accordance with ancient Hebrew law, the elders were executed in her place.