Chapter XV — Cross-Examination
Of all the arts which the advocate must acquire if he would attain success, the most difficult is the art of cross-examination. To lawyers this is, of course, a mere truism; but very few laymen understand or appreciate the value of cross-examination as a means of eliciting the facts; the majority regard it rather as an ingenious device invented by lawyers for pestering witnesses. When I was about to enter the legal profession I asked a friend—an able and experienced advocate—if he could give me any useful advice on how to cross-examine. "Yes," he said, "the same as Punch gave to people, about to marry—don't."
I trust I am not embarking upon a didactic dissertation on the art of cross-examination. For laymen among my readers would find that dull, and lawyers pronounce it trite. Even if I set myself to compile a set of "Rules for the Guidance of Cross-examiners," I fear they would be of as little use to aspiring advocates as "Foster" is to novices at bridge or "Vardon" to beginners at golf. For everything depends upon the temperament of the advocate; his knowledge of life and his understanding of human motives, his grip of facts, his sensitiveness to the "atmosphere" of a page 204case, or his ability to create one. No accomplishment comes amiss to him. He should learn to assume the neutral face and toneless voice of a poker-player for use upon occasion; he should know how to "bid" up to but never beyond the value of his hand, as at auction bridge. He must "follow through" like a golfer; keep "on the ball" like a Rugby forward, and at all times and in all circumstances be a sportsman and "play cricket."
But if "wise saws" be little help, "modern instances" may, at least, be some. I propose, therefore, to give some instances of "how to do it," and "how not." Most of these are drawn from my own experience; the rest from that of Counsel in Courts where I have practised. I shall carefully avoid what is technical or recondite, lest I bore those readers who are not lawyers.
And first of "cross-examination to credit." This is really but a minor and quite subsidiary branch of the subject; but laymen often think it embraces the whole, no doubt because the gross abuse of it in the past has drawn so much public attention to it. The practice of putting questions to a witness about his private life or discreditable episodes in his past in order to throw doubt upon his testimony was at one time employed in many cases with a ruthless and wanton disregard of the feelings of witnesses. But though, until recently, it often resulted in cruel torture of the witness, nowadays happily the consequence is more frequently the undoing of the Counsel who is guilty of it.
I was so fortunate in my very first case as to receive a sharp lesson which I never forgot.
It was my first appearance in a Court—if I except page 205a "first appearance" in another sense when I was fined ten shillings and costs for riding a bicycle on the footpath. I was Counsel for the Crown in a prosecution for indecent assault. A senior detective was in charge of the case on behalf of the police, and, raw novice that I was, I was naturally disposed to rely much upon him and to act on his information and suggestions. This man, as I afterwards found, was unfortunately of the sleuth-hound type.
A witness called by the defence, a young man of twenty-four or five, had just finished his evidence-in-chief. "He was once convicted of theft," whispered the eager sleuth at my side—"ask him about it." Very foolishly I did; and the witness answered, in obvious distress, "Yes, twelve years ago, for stealing a toy watch." "Then you must have been a mere boy at the time," said the Judge.
"I was not quite thirteen."
I did not venture to look at the Judge or the jury; I could feel what they were thinking. I made the best amends I could to the unfortunate witness, and firmly resolved, "Never again!" And I never have.
I should like to record here that this detective was of a type very seldom met with in the police force of New Zealand. In my twenty years at the Bar, in the course of which I was Counsel in a large number of criminal cases, I never once found occasion to attack a police officer in the witness-box, or to suggest in my cross-examination that he was guilty of perjury, of "twisting" the facts, or of "third-degree" methods in extracting a confession.
In a libel action in which I acted for the plaintiff, page 206defendant's Counsel, by a rash and ill-judged question, put a considerable sum into my client's pocket—and, incidentally, some pounds into mine. The defendant had written a grossly defamatory letter about my client—a spiteful and malicious lie. The wronged man acted with great moderation. On the very morning of the trial his solicitor reiterated an offer already made weeks before to accept a frank apology and some small sum for costs to cover the issue of the writ, but the offer was refused.
In the course of his cross-examination, Counsel for defendant, acting obviously under the instructions of his disagreeable client, who sat beside him and "egged" him on, asked the plaintiff if it was not a fact that he lived apart from his wife. That question was about as bad as a question could be; it was entirely unrelated to the matter of the libel. In any case, justification had not been pleaded, and the circumstances in which the plaintiff's wife had, in fact, left him many years before were such that no blame or discredit attached to him in the matter. But my adversary's blunder was even worse than that, for it so happened that both the Judge who tried the case and the gentleman who acted as foreman of the jury had been at school with the plaintiff, had known him all his life, and were fully conversant with the circumstances of the tragedy in his domestic affairs.
I, of course, "straafed" the defendant in my best vituperative style; but I might have spared my breath, for the Judge in his summing-up did all that was necessary; the foreman in the jury-room probably did rather more, for the verdict was for the full amount claimed—£250.page 207
My client, I remember, was an "Inspector" in the service of the Government, but I have quite forgotten what he inspected. For in this little country we have inspectors of everything; factories and fowl-roosts, boarding-houses and bee-hives. On a moderate computation there are five times as many inspectors to the square mile in New Zealand as in any other country on the globe, and at the present rate of increase the members of the Public Service will soon outnumber the rest of the population.
A great deal of perjured evidence is, no doubt, given in Courts; but the amount of wilful perjury is much less than the public imagine. Inaccurate observation, unconscious bias, faulty memory, and what psychologists call, I believe, "obstructive association of ideas" account for much the larger part of the false testimony one hears from the box. Witnesses, even the most honest of them, are carried away by their keen love of a contest. The party on whose behalf they are called becomes their "side," and, not unnaturally, they want their side to win. That wish increases in intensity as the excitement of the trial proceeds; it reaches its maximum when the witness is under cross-examination, and if the cross-examiner's manner be aggressive, suspicious, or bouncing, the witness becomes, in spite of himself, a confirmed partisan.
I recall a striking example of this kind of partisanship in a licensing prosecution. It happened many years before I joined the legal profession, and I am indebted to a solicitor engaged in the case for the following account of it.
The proprietor of the leading hotel in one of the page 208chief towns in New Zealand was prosecuted for Sunday trading. His house was situated on the corner of a main street, and a side street at right angles to it. From this side street a door opened into a public bar. A "Vigilance Committee" of the Prohibitionist party had, it appeared, been watching the hotel for several Sundays in succession, and had kept tally, so they said, of the people who entered and emerged from the hotel by this side door. The "Vigilants"—a dozen or more of them, mostly women—had been watching from the windows of a building immediately opposite. They were absolutely agreed as to the number of persons who had entered by the side door on each successive Sunday and even during each hour of each Sunday. They were all of them eminently respectable people, consumed with zeal no doubt, but quite obviously honest.
The case for the defence was startling. Two surveyors gave evidence; they produced plans made by them independently which proved conclusively that the side door was not visible from the observation windows. The "Vigilants" had carefully counted the number of persons who turned into or came out of the side street, and had drawn the inference, no doubt quite correctly, that they had also entered and come out by the side door. Hot on the scent as they were, they believed they had seen what they came there to see, and what, in their enthusiasm for "the cause," they wanted to see.
Before Counsel can hope to elicit the real facts of a case from a witness, he must of course know them himself, and not only know them, but know them backwards. If it be a "running-down" page 209case, he will not be content with poring over "locality plans"; he will visit the scene of the collision and see all he can for himself. If it be a case involving expert knowledge, he will visit the laboratory of his own expert and watch him make his experiments; go to the factory and see the process, whatever it may be, actually carried on; tramp over the farm and observe for himself the state of disrepair his client complains of or is charged with.
I lost many cases during my twenty years at the Bar, but I can honestly say I never lost a case through lack of preparation. In New Zealand all the preliminary "spade-work" falls upon counsel, because of the fusion here of the two professions of barrister and solicitor. Most of the litigants for whom you appear in Court are your own clients or clients of your solicitor-partners. They expect you to give your personal attention to every detail of their case. You are a sort of Pooh-Bah: the client consults you in your capacity of solicitor; you then, as it were, "state a case" to yourself for opinion in your capacity of barrister; if you advise yourself that an action will lie, you proceed to brief yourself as counsel for plaintiff. It is all very confusing; but it has at least this advantage, that by the time you get to Court you are master of every detail; you know all the facts, and you hope you know all the law that applies to them. You do not depend upon a neatly engrossed "brief" handed you the day before by a solicitor's clerk. If you are so fortunate as to be furnished with a brief at all, it is one you have dictated to your own stenographer; more often your only "brief" consists of pen- page 210cilled notes on odd scraps of paper half of which you find have been mislaid by the time you get to the Court. But your case is in your head. And that, I usually found, was the best place for it.
The most technical case I was ever engaged in was an action for £2,000 damages against a surgeon for alleged negligence in leaving two "swabs" in a patient's abdomen. There was no doubt about the swabs; they were there all right, for, three weeks after the operation, they insisted, after the manner of swabs, in forcing their way out. The only question was: were they surgical swabs left in the cavity by the surgeon at the time of the operation, or were they dressing swabs left in the wound subsequently by a nurse when swabbing it out? I spent the best part of a week reading up treatises on abdominal operations; I had two surgeons "coaching" me with the aid of innumerable diagrams, and even plaster-of-Paris casts of the human interior. But I still felt fogged and "moidered" about the case. It was not till I had myself seen the identical operation performed —fortunately there was one done at a hospital in the town a week before the trial—that I at last felt I had mastered the case. Watching a major operation for half an hour, with the fumes of ether and chloroform in one's nostrils, is not a job one hankers after; but nothing short of this, I felt assured, would have qualified me for the complicated and highly technical cross-examination of the plaintiff's witnesses. The case lasted four days; nearly all the witnesses were doctors or nurses, and the evidence was very difficult to follow. The danger was that the jury would brush aside all page 211the technicalities, as juries will, and remember only that the plaintiff was an attractive-looking woman who had endured and was still enduring great suffering. Their verdict was in defendant's favour; but my defence, sound as it was, might easily have miscarried had it not been for that very unpleasant but quite invaluable half-hour spent in an operating-theatre.
Many anecdotes and witticisms pass current among judges and lawyers at the expense of the "expert witness." In large cities, no doubt— particularly in America, as one gathers—there are to be found doctors, engineers, and other men of science who find the retaining fees they receive from insurance and railway corporations a more certain source of income than the emoluments of private practice. They gradually specialise as "testifters," and are tempted to become, perhaps unconsciously, professional partisans. They are infected in time with a subtle and insidious mental disorder, not yet classified by alienists, for which I can think of no better name than "insurance mind."
I remember on one occasion I was urging a client, the manager of an insurance company which specialised in "builders' risks," to agree to a settlement of an accident claim for £250—the sum which plaintiff's solicitor had told me would be accepted. It was a neurasthenia case, and every insurance manager thinks neurasthenia is only a euphemism for malingering. My client was obdurate; not a shilling more than £100 would he pay…. Nettled at his obstinacy, I said to him:
"You are simply impossible to argue with; you page 212must be suffering from'insurance mind' in its most aggravated form."
"What's that?" he inquired, in all innocence.
"I really believe," said I, "that you think every builder's workman who falls off a scaffolding and breaks his neck does it deliberately to spite your company."
"Well," he answered, "I don't know: I wouldn't put it past some of'em."
The jury awarded the plaintiff £500, and I found it difficult to conceal my satisfaction when I told my client of the verdict.
My own experience of expert witnesses has certainly not confirmed the hard things said about them by cynical raconteurs. Perhaps this is explained by the fact that cases calling for expert testimony are of infrequent occurrence in a small community, and that there is little scope here for the professional partisans of the type I have referred to. But a better reason, I think, is the very high standard both of personal honour and professional qualification which fortunately prevails throughout the medical profession in New Zealand.
But I did come across one expert witness—a medical man at that—who displayed in the box an interesting combination of fraud and impudence. He was giving evidence on behalf of a plaintiff who claimed a very large sum of money by way of damages for an alleged injury to the spine—lateral sclerosis, he called it. I was not actively engaged in the case, but held a "watching brief" on behalf of an insurance company under contract to indemnify the defendant. The medical experts to be called on behalf of the defence were men of the highest page 213attainments and integrity, and they were all three firmly of opinion that the plaintiff had no sclerosis nor, indeed, any other spinal disease. They held that he was malingering, and that his claim was fraudulent. They had examined him on behalf of the defence, and had applied all the standard tests for sclerosis.
The plaintiff called only one medical witness. This man gave a very glib account of the condition of the "unfortunate plaintiff"; not a symptom was missed, not a test had failed. He had no doubt whatever—a clear case. The plaintiff, so said this cocksure witness, would never be able to work again, and would remain a helpless burden on his wife and relations for the rest of his days. The jury were obviously impressed, but whether by the fearsome long words or by the confident manner of the witness, one could not say. It was noticeable that, while giving his evidence, he constantly referred to some writing before him—he was, in fact, reading his evidence from a paper. A witness may not read his evidence, but he may, with leave of the Court, use notes to refresh his memory provided they were made by himself at the time or shortly after the event or circumstances to which they refer.
The cross-examination of the witness was brief and came to a sudden and dramatic termination:
"I notice you have been reading from a paper in front of you," began Counsel for defendant: "what is it?"
"Made by you?"
"Yes"—but with some slight hesitation.page 214
"At the time you examined the plaintiff?"
"Ye-es"—but with increased hesitation and uneasiness of manner.
"In your own handwriting?"
This time there was a distinct delay in answering. I noticed that the witness was shuffling his feet: it is rarely that a liar can control his extremities. Then, suddenly and boldly he answered:
"Show me the paper," said Counsel.
Witness became painfully agitated; the jurymen were all looking at him with obvious interest.
"They are my notes," he said at length, "and no business of yours."
Counsel was quite unruffled by this impertinence. In the same firm, quiet tone as before he repeated his demand:
"Show me the paper."
The witness looked first at the Judge, but found no help in that quarter; then at Counsel for the plaintiff, but he was nervously scribbling on a blotting-pad. Finally, he tried to look the cross-examiner in the face, but quailed.
And then—he handed over the paper.
My friend looked at it and passed it to me. We both recognised the handwriting; it was not the writing of the witness, but quite unmistakably that of Counsel for the plaintiff. The paper was headed "Notes for Doctor X: Lateral Sclerosis; Symptoms and Tests." It had been copied verbatim from a standard medical work on diseases of the spine.
I wondered what my friend would do next. To expose the doctor meant also to expose Counsel for page 215plaintiff. Both richly deserved it; but the case for the defence, as we both knew, was as strong as a castle, and my friend was the most soft-hearted of men. He looked steadily at the wretched man for a few moments; and then, in his quiet and deliberate way, said:
"May I tear up this paper?"
The doctor's "Yes" was a barely audible whisper. Counsel tore the paper into fragments, dropped them on the floor, and sat down. The Judge, who instinctively realised that there was something wrong somewhere, adjourned the Court at this stage till next day.
But there was no "next day"; for the following morning the plaintiff's solicitor filed a "Notice of Discontinuance."
It is pleasant to turn to a very different experience of a medical witness. I was defending a young girl on a charge of child-murder. The case for the Crown was that she had strangled her child at birth with a stay-lace or a shoe-string or some other hard thong. The defence was that the child had been strangled inadvertently by the umbilical cord. My theory, I am afraid, was not very probable; but I thought it was at least possible.
I called a doctor—a friend of mine as well as of the Crown Prosecutor. He had recently set up in private practice after being a surgeon in the British Navy throughout the Great War.
He delivered himself of a little lecturette on the pangs of childbirth, its terrors for an inexperienced girl, the unlikelihood of criminal intent in such circumstances, and more to the same effect. A sympathetic jury listened most attentively. Then I page 216led him to the theory for the defence. He gave his evidence very gingerly; he had not personally seen a case of strangulation by the umbilical cord; he had read of such in the books; in the circumstances of this case it was—well—"possible." Further he would not go; and there was really no need to cross-examine him.
But the prosecutor could not resist the temptation to chaff the witness, though the merry twinkle, seldom absent from the doctor's eyes, ought to have warned him.
"I take it from the evidence you have just given that you are a specialist in obstetrics?"
"Oh dear, no: just a very humble G.P.; but," he added, "I did scrape through an exam. in midwifery, you know—among other subjects."
"You were in the Navy, I think, during the War?"
"Yes—for the duration."
"Ah! then it was there no doubt you learned so much about childbirth?"
"No," said the doctor; "but that was where I learned all about navel cord."
And so the doctor left the witness-box with the honours of war!
It is the cross-examination of young children, and in a less degree of women, that demands in an advocate the greatest amount of skill, tact, and delicacy. No jury will tolerate a rough way with children or a truculent manner towards women.
Children live in a world of make-believe; the more intelligent and imaginative they are, the more readily do they confuse the real with the unreal. They often lie from a perfectly innocent love of page 217romancing; with their innate sense of the dramatic, the witness-box is to them the centre of the stage; they are there to speak their piece.
If they have been "coached," the task of the cross-examiner is not so difficult; if he gets them to repeat their story once or twice, its parrot-like character will probably reveal its falsity. But if they are genuinely romancing and the story they tell is really their own invention, the best method to adopt, in my experience, is to lead them on and encourage them to elaborate the details; above all, let them think you believe them implicitly and are thoroughly enjoying their fairy-tale. If you handle them aright, their story will presently develop such a crop of fantastic and preposterous incidents that no jury can believe it.
Women are simpler; when they He deliberately they do it from some indirect motive—envy, jealousy, sheer malice, and evil-mindedness. It is not difficult to bring out their motive: once you have done that your task is generally easy.
Soon after I joined the profession I was retained as Counsel in an action which presented several points of interest. The plaintiff, a widow of small means, had leased her house to the defendant for a term of years. The lease contained a covenant binding not the tenant, as is usual, but the owner "to repair." The effect of this clause was, for example, that if the house was destroyed by fire the owner would have to replace it with a new house, and continue to let the tenant occupy it for the balance of the term at the rent he had agreed to pay for the old one. But the lease, unfortunately, also contained a "purchasing clause" which gave page 218the lessee the option, at any time during the currency of the lease, to purchase the property at a sum named, being approximately the market value of an old house, such as this was.
One night the house was burned to the ground. The tenant called upon the owner to rebuild under her repair covenant; and at the same time he gave her notice of his intention to exercise his option to purchase. She was therefore obliged to build a brand-new house and then sell it to the tenant at the price named in the lease—a sura little more than half of what the new house would cost her to build.
In this dilemma she naturally began to look round for a way to escape. There were rumours about that the tenant had deliberately set fire to the house; for them there was happily no foundation whatever. But, if the evidence available could be relied on, the fire was clearly due to the tenant's negligence.
He was, it appeared, an amateur poultry expert and bred chickens for a hobby. He had recently purchased, second-hand, a very crazy and defective incubator, partly constructed of wood and warmed by a kerosene lamp. This he had set up, of all places, in his bath-room. He and his wife had in their employ a maid-of-all-work, and on the evening of the fire she and her father, who was escorting her back from a visit to her family, both noticed a flickering light visible through the frosted glass of the bath-room window. Annie assumed, as she afterwards said, that it was only her employer "pottering about with his messy old incubator," and thought no more about it.page 219
Some little time after she had gone to bed she was awakened by a smell of burning, and presently realised that the house was on fire, She jumped through the window of her bedroom at the back of the house and saw flames and smoke bursting through the roof immediately above the bathroom.
The case, one felt, was decidedly "thin"; it rested almost entirely on Annie's evidence. But the widow's situation was desperate; so she brought her action against the tenant, claiming damages for negligence in allowing her house to catch fire.
I was Counsel for plaintiff; defendant's Counsel was a country practitioner—an excellent lawyer, as I afterwards learned, but not, as the sequel proved, a skilful advocate. He was an old man and practised the methods in vogue in his youth. So, of course, he attacked Annie, as I fervently hoped he would do. Fully instructed, no doubt by defendant's wife, he set himself to destroy the servant-girl's reputation. He got from her that she had left a previous situation without giving proper notice; that she had taken French leave on one occasion and gone to a dance when it wasn't her night out; and she had piled insult on injury by borrowing a bicycle belonging to her mistress without asking permission. Truly terrible offences! But when he asked her a question about some "change" from the grocer's, Annie burst into tears of indignation at the implied suggestion, and he had the sense, though too late, to drop it.
The cross-examination had made it quite clear that Annie need never apply to that mistress for a "character," but as to her story about the origin of the fire—that remained absolutely unshaken.page 220
The wife of the defendant, when called, gave her evidence-in-chief with telling effect. She was a pretty and attractive-looking woman; elegantly dressed, wearing a sealskin coat and a very smart and becoming little toque. She made an excellent "first appearance" in the witness-box, but as I knew she had been for some time before her marriage "on the boards" of a London theatre, I was not surprised that she made the most of the "part" allotted her on this occasion.
My task, I realised, was no easy one. If the jury believed her evidence, my case was at an end. I must somehow manage to get into her good graces at the outset, or my cross-examination was doomed to failure.
So I "skirmished round" for a while to start with. I showed myself courteously interested in her losses in the fire, her antiques and beloved pieces of old mahogany; when, with tears in her voice, she mentioned that Sheraton cabinet, now, alas! ashes—she saw in me a fellow-connoisseur, deeply concerned. On the servant-girl question—obviously a favourite topic with her, as with so many housewives —I displayed the fullest sympathy and understanding, and presently I had her launched on the transgressions of Annie with lyrical invective. I also made her feel, I hope, that I was not insensible to her personal attractions.
Having got so far in my "skirmishing," I settled down to business.
By the time I had finished with her she had completely "given away" her husband's defence, but I flattered myself she had not even a glimmering suspicion that she had done so. At any rate, I got page 221my verdict—and, what was more to the purpose, held it.
I am afraid that in telling this story I have been blowing my own trumpet with unseemly vigour, yet I hope I may be forgiven one more blast on that instrument. For when the case was over the foreman of the jury said to my clerk:
"We didn't quite'tumble' at first to your boss's examination of the lady. We all thought he was just'mashing' the little woman."
That I shall always regard as the highest compliment ever paid to me at the Bar.
But ray clerk also observed the foreman go up to Annie, pat her kindly on the shoulder, and say to her:
"Well, my girl, we've put your character right, anyhow."
And so it was not my cleverness won that case after all; it was my adversary's stupidity in attacking the maid-servant that got me the verdict!
For the last of my "modern instances" I am indebted to the late Sir John Denniston. When he was in practice in Dunedin, before his elevation to the Supreme Court bench, he was engaged on one occasion in the defence of a man charged with setting fire to some business premises in that town.
The principal witness for the Crown was a man of bad repute; he was himself under some suspicion in connection with the same fire; there were those, indeed, who thought, perhaps unjustly, that the man in the witness-box ought to change places with the man in the dock. At the close of his examination-in-chief the luncheon adjournment was taken. As page 222he was leaving the Court, Mr. Denniston, as he then was, was accosted by a perfect stranger.
"Mr. Denniston, I can tell you something about that witness that may be of use to you: he was convicted of arson himself at home in Scotland some years ago."
"Can you give me the particulars—place—date— sentence?"
"No, it was at Dumfries—that is all I know. But you can absolutely rely upon my information. I know for certain that he was convicted of arson at Dumfries, but that's all I do know."
This was much too vague and indefinite to act upon. If the witness denied the conviction, Mr. Denniston could carry the matter no further, and the question might well set the jury against him. He felt he must not risk it.
He had occasion to go to his office in the luncheon hour, and rummaging in a drawer of his desk for something he wanted, his eye lit upon an old copy of the Scotsman, faded and yellow with age. It had been sent to him many years before by a friend in Edinburgh for the sake of some news item in it of interest to both. He put the paper in his pocket and decided to take that risk after all.
When the Court resumed, he rose to cross-examine. Taking the paper from his pocket, he unfolded it and held it in such a way that a man in the witness-box could see the name of the paper in large letters at the top of the front page.
"Let me see," said Counsel, "what is your full name again?"
"Alexander Macpherson."page 223
"Ah! then you were yourself convicted of arson some years ago at—er——"
He hesitated, and for a few seconds pretended to be searching the inside pages of the newspaper for something he wanted to find; then, suddenly:
"Ah, yes: at Dumfries?"
"Yes," was the hesitant answer.
And so courage and mother-wit were rewarded. But these little things, alas! refuse sometimes to "come off."