ART OF CROSS-EXAMINATION AND THE GLASS EYE

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.

DAVID BOIES’ ADVICE ON CROSS-EXAMINATION

David Boies once again proved his preeminence as a cross-examiner in California’s Proposition 8 case. After driving out two of the other side’s experts when he took their depositions, Boies then turned the one remaining expert into his with his cross-examination at trial.

How does David Boies over and over again conduct devastating cross-examinations? The answer is that he uses the concession-seeking cross-examination technique that we describe in Cross-Examination Handbook 2^nd Edition. This technique is founded on the proposition that the primary purpose of cross is to compel the witness to concede the truth.

This is not a new concept and approach to cross-examination. Emory R. Buckner expressed it well in a chapter in Francis Wellman’s seminal work The Art of Cross-Examination (1903):

            "More cross-examinations are suicidal than homicidal. There are two reasons for this: a mistaken conception as to the function of cross-examination, and faulty technique.

            The purpose of cross-examination should be to catch the truth, ever an elusive fugitive. . ."

Boies embraces and applies the proposition that cross should aim to catch the truth. In an interview, Boies described his cross of the expert called in support of Proposition 8 as follows:

Boies: . . .To ask whether he agrees that not allowing gays to marry while children are being raised by gays is not good for the children, that’s a tricky question, because you narrow it down so that’s the only thing he can say. But you have to listen. If you pick the questions right, the only way to answer the questions to support what you want in the case is to lie. (in the interview, Boies noted that after the cross, the expert wrote an op-ed in the New York Times how he had become a supporter of gay marriage and the good it can do)

Interviewer: You really enjoy that.
Boies: Oh yeah. No question because that is the way you get at truth. Cross-examination is probably the best way we have to really get at the truth. We put somebody on the witness stand, call them to answer questions and it takes an extraordinary person to be able to successfully lie without being tripped up. 


Lawdragon, 198

For more on David Boies’ advice and his application of the concession-seeking method when he took Bill Gates’s deposition, click here.

4TH COMMANDMENT OF CROSS-EXAMINATION

Be Prepared. Do Not Ask a Question to Which You Do Not Know the Answer.

THE 4TH COMMANDMENT

Irving Younger promulgated the 10 Commandments of cross-examination, and those commandments have guided cross-examiners for decades. But, do they make sense? Should they be Commandments or merely Guidelines?

Let’s examine the 4th Commandment: Be prepared. Do not ask a question to which you do not know the answer. Younger cautions that the lawyer who asks a question to which the lawyer doesn’t know the answer will get an answer that damages the examiner’s case. Younger illustrated another Commandment – number 9 requiring counsel to limit questioning (don’t ask that one question too many) - with a story that equally illustrates the 4th Commandment. It involved an assault. The prosecutor called an eyewitness to testify that the defendant bit off the victim’s nose. On cross, defense counsel got the witness to concede that he never saw the nose being bitten off. Not satisfied, the lawyer asked one question too many and one to which the defense lawyer did not know the answer:

Q: If you never saw my client bite the nose off the victim, then why are you here today claiming that my client committed mayhem?
A: I saw him spit it out.

Of course this story is just a story, and a funny one. What prosecutor would not cover the nose-spitting business out of a direct examination? What defense counsel would not have interviewed the witness? How could this nose-spitting have not been known to both sides?

EXCEPTIONS TO THE RULE

The concept of never asking a question on cross unless you knew the answer did not originate with Irving Younger. Francis Wellman in his seminal work on cross-examination, The Art of Cross-Examination, stated the rule and expressed it better a long time before Younger. On page 23 of the 1936 edition of Wellman’s book, which was first published in 1903, it states:

“David Graham, a prudent and successful cross-examiner, once said, perhaps more in jest than anything else, ‘A lawyer should never ask a witness on cross-examination 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 somewhat on the principle of the lawyer who claimed that the result of most trials depended upon which side perpetrated the greater blunders in cross-examination. Certainly no lawyer should ask a critical question unless he is reasonably sure of the answer.”

Noncritical Question

Wellman’s is certainly a better, more nuanced guideline. Certainly, when the question is on an inconsequential subject to which no harmful answer can be given, it is fine to ask the question.

Obviously True Answer

A cross-examiner can ask critical questions even though the questioner does not know what the answer will be. Those critical questions that may be safely asked are ones to which both the cross-examiner and the jury know what the answers should be. If there is only one correct answer and that answer is obvious to the jury, what difference does it make what answer the witness gives? If the witness does not provide the expected answer, the witness loses credibility.

The core concept underpinning this approach is that the cross-examiner is testifying (not literally of course), making arguments along lines that the jury will agree to because they are part of common experience. The examiner uses the witness as a foil, who will give the desired answer or be discredited.

F. Lee Bailey in the O. J. Simpson murder trial cross-examined a Sergeant who had been to the murder scene using this approach. Here is part of the exchange – more is on the video at the end of this page:

Q. (Bailey) Wasn’t the evidence staring you in the face that somebody had to go out the back (gate)?
A. (L.A. Police Sergeant) Like I said it was outside.
Q. I understand. Didn’t you tell us in your testimony that you saw the tracks on Bundy (street adjacent to the front of the house)?
A. On Bundy?
Q. Yes.
A. Dog tracks.
Q. Well, that’s right.
A. Yes.
Q. So if the killer wasn’t a dog, somebody had to go out the back gate, didn’t they?
A. They could have gone any direction.
Q. Without leaving any footprints after being in all that blood, Sergeant?
A. Yes, it’s possible. Yes.
Q. How is that possible? Please tell me.
A. Just leave and cover their tracks somehow.
Q. Leave and cover their tracks. Could you explain to us all how that could be accomplished by a killer with bloody feet?
A. If they didn’t get blood on their feet, they wouldn’t leave tracks.
Q. Having been at the scene, can you imagine that the perpetrator or perpetrators didn’t get blood on their feet? Can you imagine that?
A. There was a lot of blood there.
Q. No. Can you imagine that these murders were accomplished without getting any blood on the feet of the perpetrator?
A. I think anything is possible.
Q. Anything is possible. You think they may have been fast enough on their feet to avoid blood while accomplishing the carnage that we’ve been looking at on the screen, is that right?
A. I can’t accurately testify to that. I’m sorry.

Bailey was arguing that the killer(s) left by the back gate and used the Sergeant as his conduit. He clearly didn’t care what the Sergeant’s answers were because he was making his argument to the jury. The more the Sergeant sought to evade the obvious, the more he discredited himself.

Accusatory Question

The accusatory question is the epitome of the obviously-true-answer line of attack. The accusatory question contains the ultimate conclusion, the one that counsel will argue to the jury. It confronts the witness with the cross-examiner’s position. When the accusatory question is asked, the cross-examiner knows the likely answer; the witness usually is going to deny the allegation. Nevertheless, counsel asks it. The accusatory question is often avoided because it is likely to produce nothing but a denial.

On the other hand, if counsel has laid the foundation – established the fact(s) that the witness will deny and counsel believes that the jury has been convinced of the fact(s), counsel can ask the question, confident in knowing that the witness’s answer will not have any credibility. Also, asking the question highlights the examiner’s point.

Horace Rumpole, the fictional English barrister and creation of the recently passed away actual barrister and author John Mortimer, asked the accusatory question, mused over both why he asked it and the witness’s response in “Rumpole and the Expert Witness” as follows:

“And some things you don’t forgive, Dr. Gorle? Has your feeling of jealousy and hatred for my client in any way coloured your evidence against him?’

“Of course I expected her to deny this. During the course of cross-examination you may angle for useful admissions, hints and half truths which can come with the cunning cast of a seemingly innocent question. But the time always comes when you must confront the witness with a clear suggestion, a final formality of assertion and denial, when the subtleties are over. I was surprised, therefore, when the lady from the morgues found it difficult to answer the question in its simplest form. There was a prolonged silence.

“`Has it, Dr. Gorle?’ I pressed her gently for the answer.

“Only Dr. Gorle knew if she was biased. If she’d denied the suggestions hotly no one could have contradicted her. Instead of doing so, she finally came out with,
“’I don’t think so.’ And she said so unconvincingly that I saw the jury’s disapproval. It was the first game to Rumpole, and the witness seemed to have lost her confidence when I moved on to deal with the medical evidence.” (The Second Rumpole Omnibus, John Mortimer, Penguin Books, 142 (1988))

While the accusatory question commonly will produce a denial or at least a hedge like Dr. Gorle’s, every once and a while, the accusatory question produces a different result. A Few Good Men (1992) provides an example of such an exchange and a profitable answer:

Q. (Kaffee) did you order the code red?
A. (Jesep) (quietly) I did the job you sent me to do.
Q. Did you order the code red?
A. You’re goddamn right I did.

For more on the types of cross-examination questions and cross strategies, get a copy of Cross-Examination Handbook.

BEST CROSS-EXAMINATION QUESTION

Sometimes the best question is the one you don’t ask

Abraham Lincoln’s cross examination of Charles Allen in the Almanac Trial is perhaps one of the most famous cross examinations in American legal history. In our Cross Examination Handbook, we reproduce a transcript of that cross as reported by Francis Wellman in his seminal work, The Art of Cross Examination. We have since discovered that there are a few problems with Wellman’s transcript. First, court reporters were scarcer than hen’s teeth in antebellum Illinois, and the testimony from that trial was never recorded. Worse still, Wellman has Allen accuse Lincoln’s client of using the wrong weapon. Allen testified that it was a slungshot—a sort of flexible club—not a firearm. And finally, the earliest and best accounts of the trial do not mention Lincoln ever confronting Allen with the almanac. Despite its inaccuracies, Wellman’s report of the cross served well to demonstrate the points we were making at that place in the book. The facts of the case are not as dramatic, but they are just as instructive.

The story of how Wellman came to believe he had an accurate transcript of Lincoln’s cross is a case study in the vagaries of human memory and the dangers of hearsay testimony. Wellman got his information on the cross examination from another turn-of-the-century legal writer, J.W. Donovan. Donovan presented the transcript as a factual rendition of Lincoln’s cross in several of his works, including Tact in Court. Although Donovan does not credit his source, it takes only a little detective work to discover that he lifted the “transcript” almost verbatim from The Graysons, a novel written by Edward Eggleston. Lincoln makes a cameo appearance in the book to defend one of the Graysons on a charge of murder. In the book, Lincoln skillfully exposed the eyewitness’s perjury by use of an almanac and got him to confess. Apparently Donovan thought the transcript was authentic because Eggleston was an historian as well as a novelist.

We are left with no credible evidence that Lincoln ever confronted Allen with the almanac. Did he even cross examine Allen? Again, the earliest and most reliable sources tell us that Lincoln did indeed cross examine Allen and did indeed ask him about the position of the moon. Apparently, Lincoln rather nonchalantly had the almanac judicially noticed and set it aside until final argument. According to the sources, Lincoln caused something of a sensation by producing the almanac in final argument and showing that the moon wasn’t high overhead as Allen had said, but near the horizon about to set.

Objective analysis should lead to the conclusion that the position of the moon had little importance to Allen’s ability to observe. If Allen had been confronted with the almanac during cross, he could (and probably would) have said, “Well, I guess I was mistaken about where the moon was; but it still gave enough light for me to see what I saw.” Such a denouement would not have ensconced Lincoln’s cross in the pantheon of great moments in legal history. Lincoln obviously recognized the danger of confronting Allen with the almanac and waited until final argument, when he could safely ask the question “How can we trust Allen? He doesn’t even know where the moon was.”

Why did Allen say the moon was high overhead? I believe he was not committing perjury, but was simply doing what everyone does when remembering an incident. Our eyes are not video cameras, and our brains are not DVD discs. We only remember the gist of events. When we recall those events, we have gaps in our memory. We deal with those gaps in one of two ways: Either our minds subconsciously fill in those gaps with plausible details, or we consciously infer those details from our gross memory and then report our inferences as facts. When asked where the moon was, Allen probably thought “It was light enough for me to see. The moon must have been high overhead.” After drawing the logical inference, he reported it as an observed fact.

Because the law of Illinois prevented criminal defendants from testifying in their own defense, Duff Armstrong (Lincoln’s client) didn’t get to tell his side of the story until decades later. In 1886 Armstrong gave his account of the killing to a newspaper reporter. Armstrong denied using the slungshot, but he did make some interesting statements about the lighting conditions. He claimed the moon was not visible that night, but the weight of evidence is against that assertion. He admitted, however, that the position of the moon was irrelevant because “it was light enough for everybody to see the fight. The fight took place in front of one of the bars, and each bar had two or three candles on it.”

So, you would be justified to say that Charles Allen was not a perjurer, Lincoln did not perform a dramatic cross, and the cross should be recognized as a myth. Witnesses to the trial report that Lincoln was extremely polite as he cross examined Allen, and contrary to legend, Lincoln did not accuse Allen of perjury during final argument. He simply noted the discrepancy in Allen’s testimony about the position of the moon and told the jury that, because Allen was so mixed up about so important a detail he might very well be mixed up about whether Armstrong used a weapon. In spite of all this, Lincoln still performed an effective cross examination.

Lincoln’s cross of Allen may not have been the most dramatic phase of the trial (attendees at the trial give that honor to Lincoln’s final argument), but it was effective nonetheless. He laid the groundwork to impeach Allen so skillfully that neither Allen nor the prosecution team realized what he was up to; he produced the almanac at just the right time to prevent the prosecutors from devising a counterstrategy; and he got his client acquitted.

The actual facts of the case put the lie to the old adage that truth is stranger than fiction, but they still show Lincoln to have been a consummate advocate and a highly skilled cross examiner. Although the facts rob the cross examination of its entertainment value, we can still learn much from it.