“The very nature of a trial is [the] search for truth.” Nix v. Whiteside, 374 U.S. 157, 158 (1986).
“Cross-examination is the greatest legal engine ever invented for the discovery of truth.” John H. Wigmore, quoted in Lilly v. Virginia, 527 U.S. 116 (1999).
“A criminal trial is a pretty blunt instrument for prising out the truth.” Horace Rumple in John Mortimer’s “Rumpole for the Prosecution,” The Second Rumpole Omnibus.
In the debate between John Mortimer and Horace Rumpole on the one side and John H. Wigmore and the Supreme Court on the other, Mortimer and Rumpole make the better point. Cross-examination can be helpful in ferreting out falsehood, but it doesn’t work too well at discovering truth. The advocate should have a pretty good idea of what the truth is before the trial begins, and the trial should be an exercise in disclosing known truth rather than discovering unknown truth. In Cross-Examination Handbook we teach a method for using cross-examination to effectively disclose the truth we already know to the judge and jury. This should be the first objective of cross-examination, with the exposure of falsehood a secondary objective.
Cross-examination is a useful tool in the advocate’s toolkit, but it is like any other tool. A hammer can be used to perform the useful task of driving nails or used to perform the wrongful task of bashing in someone’s skull. Cross-examination can perform the useful task of disclosing truth or used for the tasks of obscuring the truth and even promoting falsehood. A possible example of this comes from the cross-examination of one of the handwriting experts in the Lindbergh kidnapping case.
The examiners described a number of similarities between the handwriting on the ransom notes and the handwriting of Richard Hauptmann. One of those similarities was that in both the ransom notes and Hauptman’s known writings, “New York” was hyphenated (“New-York”). One of the examiners said that he’d never seen anyone hyphenate “New York.” On cross-examination the defense showed him a number of letters and postcards which purportedly were addressed “New-York.” Each letter and postcard was dutifully marked for identification, and the cross-examination seemed to discredit the examiner. After all, hadn’t the defense shown that “New York” was hyphenated in numerous other documents? No, as a matter of law, they hadn’t.
The procedure for putting a document into evidence is to identify it and authenticate it and then proffer it into evidence as an evidentiary exhibit. During the state’s case in chief, the defense is not technically able to introduce tangible evidence. But they can mark tangible objects for identification, have witnesses identify and authenticate those tangible objects on cross-examination, and then proffer the tangible objects into evidence on the defense case after the state rests. Until the tangible object is received into evidence, the proof is incomplete. If the tangible object is never received into evidence, there is no proof at all, and the testimony about the object can be stricken from the record, if not from the jurors’ minds.
The defense identified the letters and postcards with the state’s documents examiner, but they never authenticated them with the testimony of the people who purportedly wrote or received the correspondence, and they never offered the documents into evidence. They offered no legal proof that anyone besides Richard Hauptmann had ever hyphenated “New-York.” On the state of the evidence as presented by the defense, you would not be justified in believing that they had proved it was common for other people to hyphenate “New York.” But you might be justified in assuming that the cross-examination was smoke and mirrors designed to mislead the jury.
The mere asking of a question is an assertion of fact by the questioner, and by asking the questions, the defense was asserting the fact that they had numerous authentic letters and postcards which had “New York” hyphenated. The ABA’s Model Rule of Professional Conduct 3.3(a)(3) prohibits lawyers from offering false evidence. The ABA’s Prosecution Standard 3-5.7(d) is even more specific: “A prosecutor should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.” Before you say “Oh, that only applies to the prosecution,” look at the ABA’s Defense Standard 4-7.6(d): “Defense counsel should not ask a question which implies the existence of a factual predicate for which a good faith belief is lacking.”
If you ask a question which suggests a fact to the jury, you have an obligation to follow that question up with a proffer of proof of that fact. Otherwise you expose yourself to the accusation that you have implied a fact which you do not in good faith believe. Hauptmann’s defense team should have either offered the documents into evidence or they should not have asked the questions which implied a “fact” they had no intention of proving.
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