“WORST CROSS-EXAMINATION IN HISTORY”

Cross-Examination of Hermann Goering

Supreme Court Justice Robert H. Jackson was appointed by President Harry Truman to be the Chief Prosecutor of the 24 defendants who had led the German military and Nazi political establishments. Most notable of the defendants was Field Marshall Hermann Goering.

In their article entitled “Guidelines for Cross-Examination: Lessons from the Cross-Examination of Hermann Goering” (Bench & Bar of Minnesota Vol. 59, No. 9 | October 2002), Scott W. Johnson and John H. Hinderaker, two Minneapolis lawyers, describe Jackson’s “fiasco” cross of Goering and outline the tips for today’s cross-examiners, as follows:

Trial commenced on November 20, 1945, with the appointed British judge, Sir Geoffrey Lawrence, wielding the gavel to call the proceedings to order. "This trial," Lawrence observed, "which is now to begin, is unique in the annals of jurisprudence."

The trial in question, conducted under the auspices of the International Military Tribunal that convened in Nuremberg in the fall of 1945 — the Nuremberg trial — was unprecedented in important respects. Both the prosecutors who litigated the charges and the judges who sat in judgment represented the victorious Allied Powers. The tribunal itself was created and operated under terms of an agreement among the Allies: the London Charter of August 8, 1945. That same agreement formed the basis for the indictment, which charged the individual defendants with four counts — waging a war of aggression in violation of treaties and assurances, conspiracy to do so, commission of war crimes, and commission of crimes against humanity, "whether or not in violation of the domestic law of the country where perpetrated." The 24 defendants included the ranking survivors of the German military and Nazi political establishments; Winston Churchill had proposed, not unreasonably, that they be summarily shot.

Although the trial has provided much material for legal analysis, the event that is perhaps most instructive for lawyers today is the cross-examination of Reich Marshal Hermann Goering by former Attorney General and then-Supreme Court Justice Robert H. Jackson. No event at trial was more intensely anticipated than the cross-examination of Goering, and none fell as flat. The contemporaneous accounts, subsequent recollections, and memoirs of trial observers as well as distinguished trial participants such as Jackson's American colleague, then-Colonel Telford Taylor, unanimously judge Jackson's cross-examination of Goering to have been a fiasco. Historical accounts of the Nuremberg trial by Robert Conot, Joseph Persico, and others corroborate this judgment. Jackson's cross-examination of Goering has become notorious for its ineptitude.

Can the cross-examination have been as bad as the literature asserts? If so, what lessons can we derive from Justice Jackson's experience? These are the questions we seek to address.

To read the complete article, click here.

ART OF LISTENING

The Art of Cross-Examination Requires Active Listening

Sherlock Holmes once complained to his colleague, Dr. Watson, that “You see, but you do not observe.” All too often we hear, but we do not listen. Sometimes our preconceptions about what the witness should say prevent us from hearing what the witness actually says. Sometimes we hear on the surface, but fail to appreciate the depth of the statements. Sometimes the witness himself doesn’t fully realize the implications of what he is saying.

In a long-ago murder trial, the defendant’s accomplice, who had already been sentenced to the maximum possible sentence, appeared as a witness to try to exonerate his friend. The accomplice testified most persuasively that he acted alone, the defendant had nothing to do with it, and if the defendant had tried to stop him, he would have killed the defendant, too. The prosecutor made little headway with the accomplice on cross-examination.

Immediately after the accomplice finished his testimony, the court took a recess. During the recess, the prosecutor learned that the defendant had been making hand signals to the accomplice while the accomplice was testifying. The prosecutor’s next witness was a member of the audience, who testified to seeing the hand signals. At least now the prosecution could argue that the defendant was coaching the accomplice as he testified. The defense called the defendant to the stand for the limited purpose of showing that the defendant did nothing to influence the accomplice’s testimony. This was a safe enough ploy because the judge solemnly warned the prosecutor that cross-examination would be limited to the scope of direct.

The defendant testified that both he and the accomplice knew American Sign Language, and that he had signed to the accomplice that the accomplice was a liar. The defendant thought he was saying that he had not influenced the accomplice’s testimony. The prosecutor heard the defendant say something else. Cross-examination consisted of three questions:

Q. What was he testifying about when you called him a liar?
A. About our roles in the killing.
Q. Your roles in the what?
A. In the killing.
Q. So, in other words, you were calling him a liar when he said he acted alone?
A. Yes.

Only three people were present for the killing, and it was not a case of assisted suicide. The defendant was the only person in the world who could have helped the accomplice commit the murder. The defendant didn’t realize what he was saying, but the prosecutor heard it loud and clear. Cross-examination consisted of simply making sure everyone else in the courtroom heard it, too.