Sometimes a brilliant cross-examination is
counterproductive. You should always be aware of your audience and tailor your
questioning to their biases and preconceptions. The difference between a
winning cross-examination and a disaster quite often has less to do with the answers
you get than with the audience who hears them.
Abraham Lincoln almost wrecked
his political career with a brilliant series of questions which exposed the
faulty logic used by his opponents. It was during his first and only term as a
Congressman, and it came at a time when public enthusiasm for the war with
Mexico was at a fever pitch. Lincoln did not share that enthusiasm, thinking
that the war was ill-conceived and motivated by the desire to advance slavery
by adding more states below the Mason-Dixon Line.
President Polk justified the war by saying that it was
retribution for the spilling of American blood during an incursion of the
Mexican army onto American soil. The only problem with the justification was
that there were no Americans living at the location where the blood was shed;
the location where the blood was shed was historically a part of Mexico; the
army that was making the incursion was the American army, not the Mexican army;
and the Americans who shed their blood in that location were invading American
soldiers.
Frederick Trevor Hill, writing in Lincoln the Lawyer, described the situation like this:
There was a great chance for the orator and cheap patriot in the
[excitement over the war] and Lincoln was urged to make the most of his
opportunity and distinguish himself. But although he knew what was expected of
him and what alone would satisfy his friends, and was well aware that no critic
of his country is tolerated while its foes are under arms, he refused to
compromise with his conscience and fought the government policy with all his
might and main.
Then for the first time in his public life his power and
training as a lawyer were called into play, and in a series of questions which
no one but a skillful cross-examiner could have phrased he disposed of the
casuistical explanations of the war.
President Polk, in his several messages to Congress, had
repeatedly referred to “the Mexican invasion of our territory and the blood of
our fellow-citizens shed on our soil,” and quoting these statements as his
text, Lincoln introduced his now famous “Spot Resolutions,” wherein the
President was requested to answer eight questions calculated to inform the
House [of Representatives] whether the particular spot on which the blood of
our citizens was shed was or was not at that time “our own soil.” There was no
escape for the Executive from these questions: they were pertinent,
penetrating, and not without a certain grave humor, and each was so drawn as to
preclude the possibility of equivocation or evasion.
Moreover, they showed an historical knowledge of the facts which
could not be trifled with, and no one supporting the governmental policy could
possibly have answered them all without being caught in a contradiction:
“Resolved by the House of Representatives [they began]. That the
President of the United States be respectfully requested to inform this House —
“First. Whether the spot on which the blood of our citizens was
shed, as in his messages declared, was or was not within the territory of
Spain, at least after the treaty of 1619 until the Mexican Revolution.
“Second. Whether that spot is or is not within the territory
which was wrested from Spain by the revolutionary government of Mexico.
“Third. Whether that spot is or is not within a settlement of
people, which settlement existed long before the Texas revolution and until its
inhabitants fled before the approach of the United States Army.
“Fourth. Whether that settlement is or is not isolated from any
and all other settlements by the Gulf and the Rio Grande on the south and west,
and by wide uninhabited regions on the north and east.
“Fifth. Whether the people of that settlement, or a majority of
them, or any of them, have ever submitted themselves to the government or laws
of Texas or of the United States, by consent or by compulsion, either by
accepting office, or voting at elections, or paying tax, or serving on juries,
or having process served upon them, or in any other way.
“Sixth. Whether the people of that settlement did or did not
flee from the approach of the United States Army, leaving unprotected their
homes and their growing crops, before the blood was shed, as in the messages
stated; and whether the first blood so shed was or was not shed within the
enclosure of one of the people who had thus fled from it.
“Seventh. Whether our citizens whose blood was shed, as in his
messages declared, were or were not at that time armed officers and soldiers,
sent into that settlement by the military order of the President, through the
Secretary of War.
“Eighth. Whether the military force of the United States was or
was not so sent into that settlement after General Taylor had more than once
intimated to the War Department that in his opinion no such movement was
necessary to the defense or protection of Texas.”
No interpellation of a government was ever phrased in more
telling questions. They were unanswerable, and the administration sought safety
in silence.
Lincoln’s constituents, however, were not silent, and they
let him know in no uncertain terms that they were not happy about how he had
exposed the President’s disingenuous excuse for going to war. Realizing that he
could not possibly win a second term in Congress, Lincoln declined to run for
re-election and returned to his law practice in Springfield thinking that his
career as a politician was over.
MORAL: The next time you plan a cross-examination, be sure
ask yourself if the jury’s biases and preconceptions will prevent them from
appreciating the brilliance of your proposed line of questioning.
