Cross-Examination Blog: 2010

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.

Cross-Examination Blog

Friday, December 24, 2010

BEST CROSS-EXAMINATION QUESTION

Sunday, December 12, 2010

NEW CROSS-EXAMINATION HANDBOOK