Cross-Examination in the
Lindbergh Kidnapping Case
On more than one
occasion during the cross-examination of John F. Condon, the star witness in
the Lindbergh Kidnapping Case, the defense attempted to get Condon to admit to
prior inconsistent statements. Condon had described his meeting with and
delivery of the ransom money to the mysterious figure “Cemetery John,” and had thrice
identified Bruno Richard Hauptmann as Cemetery John. The prior inconsistent
statements were purported admissions by Condon that he had no idea who Cemetery
John might be. One of these purported prior inconsistent statements involved a
druggist in the city of Taunton, Massachusetts. Neither the prosecution nor the
defense covered themselves with glory during the exchange, which went like
this:
Q.
Well, now, irrespective of the lecture on English, will you please tell me the City
you were
last in before you arrived in Trenton.
A. Well,
the City that I was last in?
Q.
That you were last in.
A.
I stopped at
every
single city between Brockton and this place.
Q.
Were you traveling by automobile?
A.
Yes, sir.
Q.
Remember being in Taunton?
A.
Beg pardon?
Q.
Do you remember being in a town called Taunton?
A.
Yes.
Q.
Did you drop in a drug store there?
A.
I did.
Q.
Did you have a conversation with the druggist?
A.
Yes, sir.
Q.
And did you at that time tell him that you had not yet discovered
"John"?
A.
No, sir.
Q.
And didn't you say to the druggist at that time, "They haven't caught John yet;
I'd give ten
thousand dollars to find him"?
A.
Finished?
Q.
Yes.
A.
No such thing. (Laughter.)
Q.
You
make sometimes extravagant remarks, don't you?
A.
No, sir.
Q.
You are always cautious about what you say?
A.
I am.
Mr.
Wilentz [The prosecutor]:
Objection. All right
withdrawn.
The
Witness: Pardon me?
Mr.
Wilentz: That is all right, Doctor.
The
Witness: I have the situation, if you don't mind; don't worry.
Mr.
Wilentz: That is all right.
(Laughter.)
Q.
You are enjoying your day in the sun, Doctor, aren't you?
Mr.
Wilentz: Just a minute.
A.
I don't know what he means. He will have to speak English if he speaks to me. What
is it?
What
does it mean?
Q.
You are enjoying your day here before these people, your first day in court that you
ever testified;
you
are enjoying it, aren't you?
A.
No, sir, I
feel sad over it.
Q.
Why, haven't you been preparing for weeks for this day in court by giving out
statements to
the
press about what you were going to do-
A. I
will tell you-
Q.
(continuing)-to the cross-examiner?
A.
I will
tell you, because I found insidious snares in
every
single place that I went, in order to trap me and make fun of me and ridicule me,
and they haven't
succeeded.
Q.
Did the druggist up in Taunton ridicule you?
A.
He did not.
Q.
What was his name?
A.
I don't know.
Q.
Well, would you know it if you heard it?
A.
I would.
Q.
Donegan? A. That is the name.
Q.
Yes.
A.
Yes, sir.
Mr.
Wilentz: Just a minute. I have a letter from that gentleman which I would like
to exhibit to Mr. Reilly. Maybe it will help him in his examination.
The
Witness: Will you let me see it, please?
Mr.
Reilly [Lead defense counsel]:
I don't want any assistance, Mr. Attorney General.
Mr.
Wilentz: Yes. Well, I have the letter here.
Mr.
Reilly: I don't want to act as a nursemaid toward this witness.
The
Witness: Just a minute.
Mr.
Wilentz: Just a minute.
The
Witness: All right.
Mr.
Wilentz: If your Honor please, I present to the Court an unsolicited letter from
Mr. Donegan.
Mr.
Reilly: Now I object to this. I object to it. If it keeps on, I will make a motion
for the withdrawal of a juror.
Mr.
Wilentz: I will withdraw the offer.
Mr.
Fisher: Do it anyway. Make the motion anyway.
Mr.
Reilly: I move now for the withdrawal of a juror for this
production of this paper and the statement of the Attorney
General, and the declaration, and that we may have a
mistrial, I will ask Mr. Pope to argue the
question of law.
Mr.
Pope
[Assisting counsel for the defense]: I don't think it
needs any argument, your Honor. I think the
question of the announcement of the Attorney General
was so manifestly out of order, unfair and prejudicial
to the rights of this defendant that it
requires no argument. [This statement might be interpreted as meaning “I don’t have a
clue what the legal basis for an objection should be, but it certainly doesn’t
look lawful to me.” He could have done better than this, because it is basic
hornbook law that a jury cannot receive evidence concerning a case from any
source other than a sworn witness. For a lawyer to make assertions of purported
fact during the cross-examination of his own witness is highly improper. If the
prosecution had some letter of which the defense should be made aware, they
should have asked for a brief recess to share than information with the defense
outside the presence of the jury.]
The
Court: Have you finished?
Mr.
Pope: Yes, sir.
The
Court: I will deny the motion for a mistrial or the
withdrawal of a juror; and in connection with that
I wish to caution the jury most emphatically to disregard everything
that has been said in their hearing respecting what was said to be a letter from
this-what is the name?
Mr.
Fisher
[Assisting counsel for the defense]: Mr. Donegan.
Mr.
Reilly: Mr. Donegan.
The
Court: Donegan, the druggist up in-what place?
Mr.
Reilly: Taunton.
The
Court: Taunton-Massachusetts?
Mr.
Reilly: That is right.
The
Court: Massachusetts. I ask you to disregard that completely.
Q.
Dr. Condon, so there will be no mistake and so that the record will have it, I
ask you again
did you not recently in Mr. Donegan's drug store in Taunton, Massachusetts, in the
course of
conversation with him concerning this case say that Hauptmann was not the John and
that
you
would give $10,000 to find the John? A. I never said any such thing, sir.
Thus ended the
line of questioning concerning the purported prior inconsistent statement of
John F. Condon to the druggist Donegan. Nothing else was said by either side
about Donegan throughout the duration of the trial, and no evidence was offered
by either side that Condon had or had not made such an admission to Donegan.
There was thus, no evidence at all presented before the jury that Condon had
made a prior inconsistent statement. Reilly had laid the predicate for a prior
inconsistent statement, but the witness denied making it. If the witness admits
making a prior inconsistent statement, no further evidence concerning the
statement is needed. But if the witness denies making the statement, examining
counsel must present evidence that the statement was made. Apparently the
defense had no evidence that such a statement was ever made, or they would have
called Donegan to the stand to testify about it. If you can’t prove up a prior
inconsistent statement to refute a witness’s denial of that statement, you
should not suggest to the jury that such a statement was ever made.
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