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Title: The Art of Cross-Examination - With the Cross-Examinations of Important Witnesses in Some - Celebrated Cases
Author: Wellman, Francis L.
Language: English
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    New York

    _All rights reserved_

    COPYRIGHT, 1903,

    Set up, electrotyped, and published December, 1903.
    Reprinted January, twice, February, 1904.

    _Norwood Press
    J. S. Cushing & Co.--Berwick & Smith Co.
    Norwood, Mass., U.S.A._

    To my Sons

"Cross-examination,--the rarest, the most useful, and the most difficult
to be acquired of all the accomplishments of the advocate.... It has
always been deemed the surest test of truth and a better security than
the oath."--Cox.


In offering this book to the legal profession I do not intend to
arrogate to myself any superior knowledge upon the subject, excepting in
so far as it may have been gleaned from actual experience. Nor have I
attempted to treat the subject in any scientific, elaborate, or
exhaustive way; but merely to make some suggestions upon the art of
cross-examination, which have been gathered as a result of twenty-five
years' court practice, during which time I have examined and
cross-examined about fifteen thousand witnesses, drawn from all classes
of the community.

If what is here written affords anything of instruction to the younger
members of my profession, or of interest or entertainment to the public,
it will amply justify the time taken from my summer vacation to put in
readable form some points from my experience upon this most difficult

    September 1, 1903.


  CHAPTER                                                PAGE

     I. INTRODUCTORY                                       11

    II. THE MANNER OF CROSS-EXAMINATION                    21

   III. THE MATTER OF CROSS-EXAMINATION                    37


     V. CROSS-EXAMINATION OF EXPERTS                       79


   VII. SILENT CROSS-EXAMINATION                          111




            BEFORE THE PARNELL COMMISSION                 173

            CARLYLE W. HARRIS CASE                        195

            IN THE BELLEVUE HOSPITAL CASE                 213

            IN THE WILLIAM PALMER CASE                    247

            THE LAIDLAW-SAGE CASE                         267



"The issue of a cause rarely depends upon a speech and is but seldom
even affected by it. But there is never a cause contested, the result of
which is not mainly dependent upon the skill with which the advocate
conducts his cross-examination."

This is the conclusion arrived at by one of England's greatest advocates
at the close of a long and eventful career at the Bar. It was written
some fifty years ago and at a time when oratory in public trials was at
its height. It is even more true at the present time, when what was once
commonly reputed a "great speech" is seldom heard in our
courts,--because the modern methods of practising our profession have
had a tendency to discourage court oratory and the development of
orators. The old-fashioned orators who were wont to "grasp the
thunderbolt" are now less in favor than formerly. With our modern
jurymen the arts of oratory,--"law-papers on fire," as Lord Brougham's
speeches used to be called,--though still enjoyed as impassioned
literary efforts, have become almost useless as persuasive arguments or
as a "summing up" as they are now called.

Modern juries, especially in large cities, are composed of practical
business men accustomed to think for themselves, experienced in the ways
of life, capable of forming estimates and making nice distinctions,
unmoved by the passions and prejudices to which court oratory is nearly
always directed. Nowadays, jurymen, as a rule, are wont to bestow upon
testimony the most intelligent and painstaking attention, and have a
keen scent for truth. It is not intended to maintain that juries are no
longer human, or that in certain cases they do not still go widely
astray, led on by their prejudices if not by their passions.
Nevertheless, in the vast majority of trials, the modern juryman, and
especially the modern city juryman,--it is in our large cities that the
greatest number of litigated cases is tried,--comes as near being the
model arbiter of fact as the most optimistic champion of the institution
of trial by jury could desire.

I am aware that many members of my profession still sneer at trial by
jury. Such men, however,--when not among the unsuccessful and
disgruntled,--will, with but few exceptions, be found to have had but
little practice themselves in court, or else to belong to that ever
growing class in our profession who have relinquished their court
practice and are building up fortunes such as were never dreamed of in
the legal profession a decade ago, by becoming what may be styled
business lawyers--men who are learned in the law as a profession, but
who through opportunity, combined with rare commercial ability, have
come to apply their learning--especially their knowledge of corporate
law--to great commercial enterprises, combinations, organizations, and
reorganizations, and have thus come to practise law as a business.

To such as these a book of this nature can have but little interest. It
is to those who by choice or chance are, or intend to become, engaged in
that most laborious of all forms of legal business, the trial of cases
in court, that the suggestions and experiences which follow are
especially addressed.

It is often truly said that many of our best lawyers--I am speaking now
especially of New York City--are withdrawing from court practice because
the nature of the litigation is changing. To such an extent is this
change taking place in some localities that the more important
commercial cases rarely reach a court decision. Our merchants prefer to
compromise their difficulties, or to write off their losses, rather than
enter into litigations that must remain dormant in the courts for upward
of three years awaiting their turn for a hearing on the overcrowded
court calendars. And yet fully six thousand cases of one kind or another
are tried or disposed of yearly in the Borough of Manhattan alone.

This congestion is not wholly due to lack of judges, or that they are
not capable and industrious men; but is largely, it seems to me, the
fault of the system in vogue in all our American courts of allowing any
lawyer, duly enrolled as a member of the Bar, to practise in the
highest courts. In the United States we recognize no distinction between
barrister and solicitor; we are all barristers and solicitors by turn.
One has but to frequent the courts to become convinced that, so long as
the ten thousand members at the New York County Bar all avail themselves
of their privilege to appear in court and try their own clients' cases,
the great majority of the trials will be poorly conducted, and much
valuable time wasted.

The conduct of a case in court is a peculiar art for which many men,
however learned in the law, are not fitted; and where a lawyer has but
one or even a dozen experiences in court in each year, he can never
become a competent trial lawyer. I am not addressing myself to clients,
who often assume that, because we are duly qualified as lawyers, we are
therefore competent to try their cases; I am speaking in behalf of our
courts, against the congestion of the calendars, and the consequent
crowding out of weighty commercial litigations.

One _experienced_ in the trial of causes will not require, at the
utmost, more than a quarter of the time taken by the most learned
inexperienced lawyer in developing his facts. His case will be
thoroughly prepared and understood before the trial begins. His points
of law and issues of fact will be clearly defined and presented to the
court and jury in the fewest possible words. He will in this way avoid
many of the erroneous rulings on questions of law and evidence which are
now upsetting so many verdicts on appeal. He will not only complete his
trial in shorter time, but he will be likely to bring about an equitable
verdict in the case which may not be appealed from at all, or, if
appealed, will be sustained by a higher court, instead of being sent
back for a retrial and the consequent consumption of the time of another
judge and jury in doing the work all over again.[1]

  [1] In the Borough of Manhattan at the present time thirty-three
  per cent of the cases tried are appealed, and forty-two per cent
  of the cases appealed are reversed and sent back for re-trial as
  shown by the court statistics.

These facts are being more and more appreciated each year, and in our
local courts there is already an ever increasing coterie of trial
lawyers, who are devoting the principal part of their time to court

A few lawyers have gone so far as to refuse direct communication with
clients excepting as they come represented by their own attorneys. It is
pleasing to note that some of our leading advocates who, having been
called away from large and active law practice to enter the government
service, have expressed their intention, when they resume the practice
of the law, to refuse all cases where clients are not already
represented by competent attorneys, recognizing, at least in their own
practice, the English distinction between the barrister and solicitor.
We are thus beginning to appreciate in this country what the English
courts have so long recognized: that the only way to insure speedy and
intelligently conducted litigations is to _inaugurate a custom_ of
confining court practice to a comparatively limited number of trained
trial lawyers.

The distinction between general practitioners and specialists is already
established in the medical profession and largely accepted by the
public. Who would think nowadays of submitting himself to a serious
operation at the hands of his family physician, instead of calling in an
experienced surgeon to handle the knife? And yet the family physician
may have once been competent to play the part of surgeon, and doubtless
has had, years ago, his quota of hospital experience. But he so
infrequently enters the domain of surgery that he shrinks from
undertaking it, except under circumstances where there is no
alternative. There should be a similar distinction in the legal
profession. The family lawyer may have once been competent to conduct
the litigation; but he is out of practice--he is not "in training" for
the competition.

There is no short cut, no royal road to proficiency, in the art of
advocacy. It is experience, and one might almost say experience alone,
that brings success. I am not speaking of that small minority of men in
all walks of life who have been touched by the magic wand of genius, but
of men of average endowments and even special aptitude for the calling
of advocacy; with them it is a race of experience. The experienced
advocate can look back upon those less advanced in years or experience,
and rest content in the thought that they are just so many cases behind
him; that if he keeps on, with equal opportunities in court, they can
never overtake him. Some day the public will recognize this fact. But at
present, what does the ordinary litigant know of the advantages of
having counsel to conduct his case who is "at home" in the court room,
and perhaps even acquainted with the very panel of jurors before whom
his case is to be heard, through having already tried one or more cases
for other clients before the same men? How little can the ordinary
business man realize the value to himself of having a lawyer who
understands the habits of thought and of looking at evidence--the bent
of mind--of the very judge who is to preside at the trial of his case.
Not that our judges are not eminently fair-minded in the conduct of
trials; but they are men for all that, oftentimes very human men; and
the trial lawyer who knows his judge, starts with an advantage that the
inexperienced practitioner little appreciates. How much, too, does
experience count in the selection of the jury itself--one of the "fine
arts" of the advocate! These are but a few of the many similar
advantages one might enumerate, were they not apart from the subject we
are now concerned with--the skill of the advocate in conducting the
trial itself, once the jury has been chosen.

When the public realizes that a good trial lawyer is the outcome, one
might say of generations of witnesses, when clients fully appreciate the
dangers they run in intrusting their litigations to so-called "office
lawyers" with little or no experience in court, they will insist upon
their briefs being intrusted to those who make a specialty of court
practice, advised and assisted, if you will, by their own private
attorneys. One of the chief disadvantages of our present system will be
suddenly swept away; the court calendars will be cleared by speedily
conducted trials; issues will be tried within a reasonable time after
they are framed; the commercial cases, now disadvantageously settled out
of court or abandoned altogether, will return to our courts to the
satisfaction both of the legal profession and of the business community
at large; causes will be more skilfully tried--the art of
cross-examination more thoroughly understood.



It needs but the simple statement of the nature of cross-examination to
demonstrate its indispensable character in all trials of questions of
fact. No cause reaches the stage of litigation unless there are two
sides to it. If the witnesses on one side deny or qualify the statements
made by those on the other, which side is telling the truth? Not
necessarily which side is offering perjured testimony,--there is far
less intentional perjury in the courts than the inexperienced would
believe,--but which side is honestly mistaken?--for, on the other hand,
evidence itself is far less trustworthy than the public usually
realizes. The opinions of which side are warped by prejudice or blinded
by ignorance? Which side has had the power or opportunity of correct
observation? How shall we tell, how make it apparent to a jury of
disinterested men who are to decide between the litigants? Obviously, by
the means of cross-examination.

If all witnesses had the honesty and intelligence to come forward and
scrupulously follow the letter as well as the spirit of the oath, "to
tell the truth, the whole truth, and nothing but the truth," and if all
advocates on either side had the necessary experience, combined with
honesty and intelligence, and were similarly sworn to _develop_ the
whole truth and nothing but the truth, of course there would be no
occasion for cross-examination, and the occupation of the cross-examiner
would be gone. But as yet no substitute has ever been found for
cross-examination as a means of separating truth from falsehood, and of
reducing exaggerated statements to their true dimensions.

The system is as old as the history of nations. Indeed, to this day, the
account given by Plato of Socrates's cross-examination of his accuser,
Miletus, while defending himself against the capital charge of
corrupting the youth of Athens, may be quoted as a masterpiece in the
art of cross-questioning.

Cross-examination is generally considered to be the most difficult
branch of the multifarious duties of the advocate. Success in the art,
as some one has said, comes more often to the happy possessor of a
genius for it. Great lawyers have often failed lamentably in it, while
marvellous success has crowned the efforts of those who might otherwise
have been regarded as of a mediocre grade in the profession. Yet
personal experience and the emulation of others trained in the art, are
the surest means of obtaining proficiency in this all-important
prerequisite of a competent trial lawyer.

It requires the greatest ingenuity; a habit of logical thought;
clearness of perception in general; infinite patience and self-control;
power to read men's minds intuitively, to judge of their characters by
their faces, to appreciate their motives; ability to act with force and
precision; a masterful knowledge of the subject-matter itself; an
extreme caution; and, above all, the _instinct to discover the weak
point_ in the witness under examination.

One has to deal with a prodigious variety of witnesses testifying under
an infinite number of differing circumstances. It involves all shades
and complexions of human morals, human passions, and human intelligence.
It is a mental duel between counsel and witness.

In discussing the methods to employ when cross-examining a witness, let
us imagine ourselves at work in the trial of a cause, and at the close
of the direct examination of a witness called by our adversary. The
first inquiry would naturally be, Has the witness testified to anything
that is material against us? Has his testimony injured our side of the
case? Has he made an impression with the jury against us? Is it
necessary for us to cross-examine him at all?

Before dismissing a witness, however, the possibility of being able to
elicit some new facts in our own favor should be taken into
consideration. If the witness is apparently truthful and candid, this
can be readily done by asking plain, straightforward questions. If,
however, there is any reason to doubt the willingness of the witness to
help develop the truth, it may be necessary to proceed with more
caution, and possibly to put the witness in a position where it will
appear to the jury that he could tell a good deal if he wanted to, and
then leave him. The jury will thus draw the inference that, had he
spoken, it would have been in our favor.

But suppose the witness has testified to material facts against us, and
it becomes our duty to break the force of his testimony, or abandon all
hope of a jury verdict. How shall we begin? How shall we tell whether
the witness has made an honest mistake, or has committed perjury? The
methods in his cross-examination in the two instances would naturally be
very different. There is a marked distinction between discrediting the
_testimony_ and discrediting the _witness_. It is largely a matter of
instinct on the part of the examiner. Some people call it the language
of the eye, or the tone of the voice, or the countenance of the witness,
or his manner of testifying, or all combined, that betrays the wilful
perjurer. It is difficult to say exactly what it is, excepting that
constant practice seems to enable a trial lawyer to form a fairly
accurate judgment on this point. A skilful cross-examiner seldom takes
his eye from an important witness while he is being examined by his
adversary. Every expression of his face, especially his mouth, even
every movement of his hands, his manner of expressing himself, his whole
bearing--all help the examiner to arrive at an accurate estimate of his

Let us assume, then, that we have been correct in our judgment of this
particular witness, and that he is trying to describe honestly the
occurrences to which he has testified, but has fallen into a serious
mistake, through ignorance, blunder, or what not, which must be exposed
to the minds of the jury. How shall we go about it? This brings us at
once to the first important factor in our discussion, the _manner_ of
the cross-examiner.

It is absurd to suppose that any witness who has sworn positively to a
certain set of facts, even if he has inadvertently stretched the truth,
is going to be readily induced by a lawyer to alter them and acknowledge
his mistake. People as a rule do not reflect upon their meagre
opportunities for observing facts, and rarely suspect the frailty of
their own powers of observation. They come to court, when summoned as
witnesses, prepared to tell what they think they know; and in the
beginning they resent an attack upon their story as they would one upon
their integrity.

If the cross-examiner allows the witness to see, by his manner toward
him at the start, that he distrusts his integrity, he will straighten
himself in the witness chair and mentally defy him at once. If, on the
other hand, the counsel's manner is courteous and conciliatory, the
witness will soon lose the fear all witnesses have of the
cross-examiner, and can almost imperceptibly be induced to enter into a
discussion of his testimony in a fair-minded spirit, which, if the
cross-examiner is clever, will soon disclose the weak points in the
testimony. The sympathies of the jury are invariably on the side of the
witness, and they are quick to resent any discourtesy toward him. They
are willing to admit his _mistakes_, if you can make them apparent, but
are slow to believe him _guilty of perjury_. Alas, how often this is
lost sight of in our daily court experiences! One is constantly brought
face to face with lawyers who act as if they thought that every one who
testifies against their side of the case is committing wilful perjury.
No wonder they accomplish so little with their CROSS-examination! By
their shouting, brow-beating style they often confuse the wits of the
witness, it is true; but they fail to discredit him with the jury. On
the contrary, they elicit sympathy for the witness they are attacking,
and little realize that their "vigorous cross-examination," at the end
of which they sit down with evident self-satisfaction, has only served
to close effectually the mind of at least one fair-minded juryman
against their side of the case, and as likely as not it has brought to
light some important fact favorable to the other side which had been
overlooked in the examination-in-chief.

There is a story told of Reverdy Johnson, who once, in the trial of a
case, twitted a brother lawyer with feebleness of memory, and received
the prompt retort, "Yes, Mr. Johnson; but you will please remember that,
unlike the lion in the play, I have something more to do than _roar_."

The only lawyer I ever heard employ this roaring method successfully was
Benjamin F. Butler. With him politeness, or even humanity, was out of
the question. And it has been said of him that "concealment and
equivocation were scarcely possible to a witness under the operation of
his methods." But Butler had a wonderful personality. He was aggressive
and even pugnacious, but picturesque withal--witnesses were afraid of
him. Butler was popular with the masses; he usually had the numerous
"hangers-on" in the court room on his side of the case from the start,
and each little point he would make with a witness met with their ready
and audible approval. This greatly increased the embarrassment of the
witness and gave Butler a decided advantage. It must be remembered also
that Butler had a contempt for scruple which would hardly stand him in
good stead at the present time. Once he was cross-questioning a witness
in his characteristic manner. The judge interrupted to remind him that
the witness was a Harvard professor. "I know it, your Honor," replied
Butler; "we hanged one of them the other day."[2]

  [2] "Life Sketches of Eminent Lawyers," G. J. Clark, Esq.

On the other hand, it has been said of Rufus Choate, whose art and
graceful qualities of mind certainly entitle him to the foremost rank
among American advocates, that in the cross-examination of witnesses,
"He never aroused opposition on the part of the witness by attacking
him, but disarmed him by the quiet and courteous manner in which he
pursued his examination. He was quite sure, before giving him up, to
expose the weak parts of his testimony or the bias, if any, which
detracted from the confidence to be given it."[3] [One of Choate's _bon
mots_ was that "a lawyer's vacation consisted of the space between the
question put to a witness and his answer."]

  [3] "Memories of Rufus Choate," Neilson.

Judah P. Benjamin, "the eminent lawyer of two continents," used to
cross-examine with his eyes. "No witness could look into Benjamin's
black, piercing eyes and maintain a lie."

Among the English barristers, Sir James Scarlett, Lord Abinger, had the
reputation, as a cross-examiner, of having outstripped all advocates
who, up to that time, had appeared at the British Bar. "The gentlemanly
ease, the polished courtesy, and the Christian urbanity and affection,
with which he proceeded to the task, did infinite mischief to the
testimony of witnesses who were striving to deceive, or upon whom he
found it expedient to fasten a suspicion."

A good advocate should be a good actor. The most cautious cross-examiner
will often elicit a damaging answer. Now is the time for the greatest
self-control. If you show by your face how the answer hurt, you may lose
your case by that one point alone. How often one sees the cross-examiner
fairly staggered by such an answer. He pauses, perhaps blushes, and
after he has allowed the answer to have its full effect, finally regains
his self-possession, but seldom his control of the witness. With the
really experienced trial lawyer, such answers, instead of appearing to
surprise or disconcert him, will seem to come as a matter of course,
and will fall perfectly flat. He will proceed with the next question as
if nothing had happened, or even perhaps give the witness an incredulous
smile, as if to say, "Who do you suppose would believe that for a

An anecdote apropos of this point is told of Rufus Choate. "A witness
for his antagonist let fall, with no particular emphasis, a statement of
a most important fact from which he saw that inferences greatly damaging
to his client's case might be drawn if skilfully used. He suffered the
witness to go through his statement and then, as if he saw in it
something of great value to himself, requested him to repeat it
carefully that he might take it down correctly. He as carefully avoided
cross-examining the witness, and in his argument made not the least
allusion to his testimony. When the opposing counsel, in his close, came
to that part of his case in his argument, he was so impressed with the
idea that Mr. Choate had discovered that there was something in that
testimony which made in his favor, although he could not see how, that
he contented himself with merely remarking that though Mr. Choate had
seemed to think that the testimony bore in favor of his client, it
seemed to him that it went to sustain the opposite side, and then went
on with the other parts of his case."[4]

  [4] "Memories of Rufus Choate," Neilson.

It is the love of combat which every man possesses that fastens the
attention of the jury upon the progress of the trial. The counsel who
has a pleasant personality; who speaks with apparent frankness; who
appears to be an earnest searcher after truth; who is courteous to those
who testify against him; who avoids delaying constantly the progress of
the trial by innumerable objections and exceptions to perhaps
incompetent but harmless evidence; who seems to know what he is about
and sits down when he has accomplished it, exhibiting a spirit of fair
play on all occasions--he it is who creates an atmosphere in favor of
the side which he represents, a powerful though unconscious influence
with the jury in arriving at their verdict. Even if, owing to the weight
of testimony, the verdict is against him, yet the amount will be far
less than the client had schooled himself to expect.

On the other hand, the lawyer who wearies the court and the jury with
endless and pointless cross-examinations; who is constantly losing his
temper and showing his teeth to the witnesses; who wears a sour, anxious
expression; who possesses a monotonous, rasping, penetrating voice; who
presents a slovenly, unkempt personal appearance; who is prone to take
unfair advantage of witness or counsel, and seems determined to win at
all hazards--soon prejudices a jury against himself and the client he
represents, entirely irrespective of the sworn testimony in the case.

The evidence often _seems_ to be going all one way, when in reality it
is not so at all. The cleverness of the cross-examiner has a great deal
to do with this; he can often create an atmosphere which will obscure
much evidence that would otherwise tell against him. This is part of the
"generalship of a case" in its progress to the argument, which is of
such vast consequence. There is eloquence displayed in the examination
of witnesses as well as on the argument. "There is _matter_ in
_manner_." I do not mean to advocate that exaggerated manner one often
meets with, which divides the attention of your hearers between yourself
and your question, which often diverts the attention of the jury from
the point you are trying to make and centres it upon your own
idiosyncrasies of manner and speech. As the man who was somewhat deaf
and could not get near enough to Henry Clay in one of his finest
efforts, exclaimed, "I didn't hear a word he said, but, great Jehovah,
didn't he make the motions!"

The very intonations of voice and the expression of face of the
cross-examiner can be made to produce a marked effect upon the jury and
enable them to appreciate fully a point they might otherwise lose

"Once, when cross-examining a witness by the name of Sampson, who was
sued for libel as editor of the _Referee_, Russell asked the witness a
question which he did not answer. 'Did you hear my question?' said
Russell in a low voice. 'I did,' said Sampson. 'Did you understand it?'
asked Russell, in a still lower voice. 'I did,' said Sampson. 'Then,'
said Russell, raising his voice to its highest pitch, and looking as if
he would spring from his place and seize the witness by the throat, 'why
have you not answered it? Tell the jury why you have not answered it.' A
thrill of excitement ran through the court room. Sampson was
overwhelmed, and he never pulled himself together again."[5]

  [5] "Life of Lord Russell," O'Brien.

Speak distinctly yourself, and compel your witness to do so. Bring out
your points so clearly that men of the most ordinary intelligence can
understand them. Keep your audience--the jury--always interested and on
the alert. Remember it is the minds of the jury you are addressing, even
though your question is put to the witness. Suit the modulations of your
voice to the subject under discussion. Rufus Choate's voice would seem
to take hold of the witness, to exercise a certain sway over him, and to
silence the audience into a hush. He allowed his rich voice to exhibit
in the examination of witnesses, much of its variety and all of its
resonance. The contrast between his tone in examining and that of the
counsel who followed him was very marked.

"Mr. Choate's appeal to the jury began long before his final argument;
it began when he first took his seat before them and looked into their
eyes. He generally contrived to get his seat as near them as was
convenient, if possible having his table close to the Bar, in front of
their seats, and separated from them only by a narrow space for
passage. There he sat, calm, contemplative; in the midst of occasional
noise and confusion solemnly unruffled; always making some little
headway either with the jury, the court, or the witness; never doing a
single thing which could by possibility lose him favor, ever doing some
little thing to win it; smiling benignantly upon the counsel when a good
thing was said; smiling sympathizingly upon the jury when any juryman
laughed or made an inquiry; wooing them all the time with his magnetic
glances as a lover might woo his mistress; seeming to preside over the
whole scene with an air of easy superiority; exercising from the very
first moment an indefinable sway and influence upon the minds of all
before and around him. His manner to the jury was that of a _friend_, a
friend solicitous to help them through their tedious investigation;
never that of an expert combatant, intent on victory, and looking upon
them as only instruments for its attainment."[6]

  [6] "Reminiscences of Rufus Choate," Parker.



If by experience we have learned the first lesson of our art,--to
control our _manner_ toward the witness even under the most trying
circumstances,--it then becomes important that we should turn our
attention to the _matter_ of our cross-examination. By our manner toward
him we may have in a measure disarmed him, or at least put him off his
guard, while his memory and conscience are being ransacked by subtle and
searching questions, the scope of which shall be hardly apparent to
himself; but it is only with the matter of our cross-examination that we
can hope to destroy him.

What shall be our first mode of attack? Shall we adopt the fatal method
of those we see around us daily in the courts, and proceed to take the
witness over the same story that he has already given our adversary, in
the absurd hope that he is going to change it in the repetition, and not
retell it with double effect upon the jury? Or shall we rather avoid
carefully his original story, except in so far as is necessary to refer
to it in order to point out its weak spots? Whatever we do, let us do it
with quiet dignity, with absolute fairness to the witness; and let us
frame our questions in such simple language that there can be no
misunderstanding or confusion. Let us imagine ourselves in the jury box,
so that we may see the evidence from their standpoint. We are not trying
to make a reputation for ourselves with the audience as "smart"
cross-examiners. We are thinking rather of our client and our employment
by him to win the jury upon his side of the case. Let us also avoid
asking questions recklessly, without any definite purpose. Unskilful
questions are worse than none at all, and only tend to uphold rather
than to destroy the witness.

All through the direct testimony of our imaginary witness, it will be
remembered, we were watching his every movement and expression. Did we
find an opening for our cross-examination? Did we detect the weak spot
in his narrative? If so, let us waste no time, but go direct to the
point. It may be that the witness's situation in respect to the parties
or the subject-matter of the suit should be disclosed to the jury, as
one reason why his testimony has been shaded somewhat in favor of the
side on which he testifies. It may be that he has a direct interest in
the result of the litigation, or is to receive some indirect benefit
therefrom. Or he may have some other tangible motive which he can gently
be made to disclose. Perhaps the witness is only suffering from that
partisanship, so fatal to fair evidence, of which oftentimes the witness
himself is not conscious. It may even be that, if the jury only knew the
scanty means the witness has had for obtaining a correct and certain
knowledge of the very facts to which he has sworn so glibly, aided by
the adroit questioning of the opposing counsel, this in itself would go
far toward weakening the effect of his testimony. It may appear, on the
other hand, that the witness had the best possible opportunity to
observe the facts he speaks of, but had not the intelligence to observe
these facts correctly. Two people may witness the same occurrence and
yet take away with them an entirely different impression of it; but
each, when called to the witness stand, may be willing to swear to that
impression as a fact. Obviously, both accounts of the same transaction
cannot be true; whose impressions were wrong? Which had the better
opportunity to see? Which had the keener power of perception? All this
we may very properly term the matter of our cross-examination.

It is one thing to have the opportunity of observation, or even the
intelligence to observe correctly, but it is still another to be able to
retain accurately, for any length of time, what we have once seen or
heard, and what is perhaps more difficult still--to be able to describe
it intelligibly. Many witnesses have seen one part of a transaction and
heard about another part, and later on become confused in their own
minds, or perhaps only in their modes of expression, as to what they
have seen themselves and what they have heard from others. All witnesses
are prone to exaggerate--to enlarge or minimize the facts to which they
take oath.

A very common type of witness, met with almost daily, is the man who,
having witnessed some event years ago, suddenly finds that he is to be
called as a court witness. He immediately attempts to recall his
original impressions; and gradually, as he talks with the attorney who
is to examine him, he amplifies his story with new details which he
leads himself, or is led, to believe are recollections and which he
finally swears to as facts. Many people seem to fear that an "I don't
know" answer will be attributed to ignorance on their part. Although
perfectly honest in intention, they are apt, in consequence, to complete
their story by recourse to their imagination. And few witnesses fail, at
least in some part of their story, to entangle facts with their own
beliefs and inferences.

All these considerations should readily suggest a line of questions,
varying with each witness examined, that will, if closely followed, be
likely to separate appearance from reality and to reduce exaggerations
to their proper proportions. It must further be borne in mind that the
jury should not merely see the mistake; they should be made to
appreciate at the time why and whence it arose. It is fresher then and
makes a more lasting effect than if left until the summing up, and then
drawn to the attention of the jury.

The experienced examiner can usually tell, after a few simple questions,
what line to pursue. Picture the scene in your own mind; closely inquire
into the sources of the witness's information, and draw your own
conclusions as to how his mistake arose, and why he formed his erroneous
impressions. Exhibit plainly your belief in his integrity and your
desire to be fair with him, and try to beguile him into being candid
with you. Then when the particular foible which has affected his
testimony has once been discovered, he can easily be led to expose it
to the jury. His mistakes should be drawn out often by inference rather
than by direct question, because all witnesses have a dread of
self-contradiction. If he sees the connection between your inquiries and
his own story, he will draw upon his imagination for explanations,
before you get the chance to point out to him the inconsistency between
his later statement and his original one. It is often wise to break the
effect of a witness's story by putting questions to him that will
acquaint the jury at once with the fact that there is another more
probable story to be told later on, to disclose to them something of the
defence, as it were. Avoid the mistake, so common among the
inexperienced, of making much of trifling discrepancies. It has been
aptly said that "juries have no respect for small triumphs over a
witness's self-possession or memory." Allow the loquacious witness to
talk on; he will be sure to involve himself in difficulties from which
he can never extricate himself. Some witnesses prove altogether too
much; encourage them and lead them by degrees into exaggerations that
will conflict with the common sense of the jury. Under no circumstances
put a false construction on the words of a witness; there are few faults
in an advocate more fatal with a jury.

If, perchance, you obtain a really favorable answer, leave it and pass
quietly to some other inquiry. The inexperienced examiner in all
probability will repeat the question with the idea of impressing the
admission upon his hearers, instead of reserving it for the summing up,
and will attribute it to bad luck that his witness corrects his answer
or modifies it in some way, so that the point is lost. He is indeed a
poor judge of human nature who supposes that if he exults over his
success during the cross-examination, he will not quickly put the
witness on his guard to avoid all future favorable disclosures.

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 something on the principle of the lawyer who claimed that the
result of most trials depended upon which side perpetrated the greatest
blunders in cross-examination. Certainly no lawyer should ask a
_critical_ question unless he is sure of the answer.

Mr. Sergeant Ballantine, in his "Experiences," quotes an instance in the
trial of a prisoner on the charge of homicide, where a once famous
English barrister had been induced by the urgency of an attorney,
although against his own judgment, to ask a question on
cross-examination, the answer to which convicted his client. Upon
receiving the answer, he turned to the attorney who had advised him to
ask it, and said, emphasizing every word, "Go home; cut your throat; and
when you meet your client in hell, beg his pardon."

It is well, sometimes, in a case where you believe that the witness is
reluctant to develop the whole truth, so to put questions that the
answers you know will be elicited may come by way of a surprise and in
the light of improbability to the jury. I remember a recent incident,
illustrative of this point, which occurred in a suit brought to recover
the insurance on a large warehouse full of goods that had been burnt to
the ground. The insurance companies had been unable to find any
stock-book which would show the amount of goods in stock at the time of
the fire. One of the witnesses to the fire happened to be the
plaintiff's bookkeeper, who on the direct examination testified to all
the details of the fire, but nothing about the books. The
cross-examination was confined to these few pointed questions.

"I suppose you had an iron safe in your office, in which you kept your
books of account?" "Yes, sir."--"Did that burn up?" "Oh, no."--"Were you
present when it was opened after the fire?" "Yes, sir."--"Then won't you
be good enough to hand me the stock-book that we may show the jury
exactly what stock you had on hand at the time of the fire on which you
claim loss?" (This was the point of the case and the jury were not
prepared for the answer which followed.) "I haven't it, sir."--"What,
haven't the stock-book? You don't mean you have lost it?" "It wasn't in
the safe, sir."--"Wasn't that the proper place for it?" "Yes,
sir."--"How was it that the book wasn't there?" "It had evidently been
left out the night before the fire by mistake." Some of the jury at once
drew the inference that the all-important stock-book was being
suppressed, and refused to agree with their fellows against the
insurance companies.

The average mind is much wiser than many suppose. Questions can be put
to a witness under cross-examination, in argumentative form, often with
far greater effect upon the minds of the jury than if the same line of
reasoning were reserved for the summing up. The juryman sees the point
for himself, as if it were his own discovery, and clings to it all the
more tenaciously. During the cross-examination of Henry Ward Beecher, in
the celebrated Tilton-Beecher case, and after Mr. Beecher had denied his
alleged intimacy with Mr. Tilton's wife, Judge Fullerton read a passage
from one of Mr. Beecher's sermons to the effect that if a person commits
a great sin, the exposure of which would cause misery to others, such a
person would not be justified in confessing it, merely to relieve his
own conscience. Fullerton then looked straight into Mr. Beecher's eyes
and said, "Do you still consider that sound doctrine?" Mr. Beecher
replied, "I do." The inference a juryman might draw from this question
and answer would constitute a subtle argument upon that branch of the

The entire effect of the testimony of an adverse witness can sometimes
be destroyed by a pleasant little passage-at-arms in which he is
finally held up to ridicule before the jury, and all that he has
previously said against you disappears in the laugh that accompanies him
from the witness box. In a recent Metropolitan Street Railway case a
witness who had been badgered rather persistently on cross-examination,
finally straightened himself up in the witness chair and said pertly, "I
have not come here asking you to _play with me_. Do you take me for Anna
Held?"[7] "I was not thinking of Anna Held," replied the counsel
quietly; "supposing you try _Ananias_!" The witness was enraged, the
jury laughed, and the lawyer, who had really made nothing out of the
witness up to this time, sat down.

  [7] This occurrence was at the time when the actress Anna Held was
  singing her popular stage song, "Won't you come and play with me."

These little triumphs are, however, by no means always one-sided. Often,
if the council gives him an opening, a clever witness will counter on
him in a most humiliating fashion, certain to meet with the hearty
approval of jury and audience. At the Worster Assizes, in England, a
case was being tried which involved the soundness of a horse, and a
clergyman had been called as a witness who succeeded only in giving a
rather confused account of the transaction. A blustering counsel on the
other side, after many attempts to get at the facts upon
cross-examination, blurted out, "Pray, sir, do you know the difference
between a horse and a cow?" "I acknowledge my ignorance," replied the
clergyman; "I hardly do know the difference between a horse and a cow,
or between a bull and a bully--only a bull, I am told, has horns, and a
bully (bowing respectfully to the counsel), _luckily for me_, has
none."[8] Reference is made in a subsequent chapter to the
cross-examination of Dr. ---- in the Carlyle Harris case, where is
related at length a striking example of success in this method of

  [8] "Curiosities of Law and Lawyers."

It may not be uninteresting to record in this connection one or two
cases illustrative of matter that is valuable in cross-examination in
personal damage suits where the sole object of counsel is to reduce the
amount of the jury's verdict, and to puncture the pitiful tale of
suffering told by the plaintiff in such cases.

A New York commission merchant, named Metts, sixty-six years of age, was
riding in a Columbus Avenue open car. As the car neared the curve at
Fifty-third Street and Seventh Avenue, and while he was in the act of
closing an open window in the front of the car at the request of an old
lady passenger, the car gave a sudden, violent lurch, and he was thrown
into the street, receiving injuries from which, at the time of the
trial, he had suffered for three years.

Counsel for the plaintiff went into his client's sufferings in great
detail. Plaintiff had had concussion of the brain, loss of memory,
bladder difficulties, a broken leg, nervous prostration, constant pain
in his back. And the attempt to alleviate the pain attendant upon all
these difficulties was gone into with great detail. To cap all, the
attending physician had testified that the reasonable value of his
professional services was the modest sum of $2500.

Counsel for the railroad, before cross-examining, had made a critical
examination of the doctor's face and bearing in the witness chair, and
had concluded that, if pleasantly handled, he could be made to testify
pretty nearly to the truth, whatever it might be. He concluded to spar
for an opening, and it came within the first half-dozen questions:--

_Counsel._ "What medical name, doctor, would you give to the plaintiff's
present ailment?"

_Doctor._ "He has what is known as 'traumatic microsis.'"

_Counsel._ "_Microsis_, doctor? That means, does it not, the habit, or
disease as you may call it, of making much of ailments that an ordinary
healthy man would pass by as of no account?"

_Doctor._ "That is right, sir."

_Counsel_ (smiling). "I hope you haven't got this disease, doctor, have

_Doctor._ "Not that I am aware of, sir."

_Counsel._ "Then we ought to be able to get a very fair statement from
you of this man's troubles, ought we not?"

_Doctor._ "I hope so, sir."

The opening had been found; witness was already flattered into agreeing
with all suggestions, and warned against exaggeration.

_Counsel._ "Let us take up the bladder trouble first. Do not practically
all men who have reached the age of sixty-six have troubles of one kind
or another that result in more or less irritation of the bladder?"

_Doctor._ "Yes, that is very common with old men."

_Counsel._ "You said Mr. Metts was deaf in one ear. I noticed that he
seemed to hear the questions asked him in court particularly well; did
you notice it?"

_Doctor._ "I did."

_Counsel._ "At the age of sixty-six are not the majority of men
gradually failing in their hearing?"

_Doctor._ "Yes, sir, frequently."

_Counsel._ "Frankly, doctor, don't you think this man hears remarkably
well for his age, leaving out the deaf ear altogether?"

_Doctor._ "I think he does."

_Counsel_ (keeping the ball rolling). "I don't think you have even the
first symptoms of this 'traumatic microsis,' doctor."

_Doctor_ (pleased). "I haven't got it at all."

_Counsel._ "You said Mr. Metts had had concussion of the brain. Has not
every boy who has fallen over backward, when skating on the ice, and
struck his head, also had what you physicians would call 'concussion of
the brain'?"

_Doctor._ "Yes, sir."

_Counsel._ "But I understood you to say that this plaintiff had had, in
addition, hæmorrhages of the brain. Do you mean to tell us that he could
have had hæmorrhages of the brain and be alive to-day?"

_Doctor._ "They were microscopic hæmorrhages."

_Counsel._ "That is to say, one would have to take a microscope to find

_Doctor._ "That is right."

_Counsel._ "You do not mean us to understand, doctor, that you have not
cured him of these microscopic hæmorrhages?"

_Doctor._ "I have cured him; that is right."

_Counsel._ "You certainly were competent to set his broken leg or you
wouldn't have attempted it; did you get a good union?"

_Doctor._ "Yes, he has got a good, strong, healthy leg."

Counsel having elicited, by the "smiling method," all the required
admissions, suddenly changed his whole bearing toward the witness, and
continued pointedly:--

_Counsel._ "And you said that $2500 would be a fair and reasonable
charge for your services. It is three years since Mr. Metts was injured.
Have you sent him no bill?"

_Doctor._ "Yes, sir, I have."

_Counsel._ "Let me see it. (Turning to plaintiff's counsel.) Will either
of you let me have the bill?"

_Doctor._ "I haven't it, sir."

_Counsel_ (astonished). "What was the amount of it?"

_Doctor._ "$1000."

_Counsel_ (savagely). "Why do you charge the railroad company two and a
half times as much as you charge the patient himself?"

_Doctor_ (embarrassed at this sudden change on part of counsel). "You
asked me what my services were worth."

_Counsel._ "Didn't you charge your patient the full worth of your

_Doctor_ (no answer).

_Counsel_ (quickly). "How much have you been _paid_ on your bill--on
your oath?"

_Doctor._ "He paid me $100 at one time, that is, two years ago; and at
two different times since he has paid me $30."

_Counsel._ "And he is a rich commission merchant down town!" (And with
something between a sneer and a laugh counsel sat down.)

An amusing incident, leading to the exposure of a manifest fraud,
occurred recently in another of the many damage suits brought against
the Metropolitan Street Railway and growing out of a collision between
two of the company's electric cars.

The plaintiff, a laboring man, had been thrown to the street pavement
from the platform of the car by the force of the collision, and had
dislocated his shoulder. He had testified in his own behalf that he had
been permanently injured in so far as he had not been able to follow
his usual employment for the reason that he could not raise his arm
above a point parallel with his shoulder. Upon cross-examination the
attorney for the railroad asked the witness a few sympathetic questions
about his sufferings, and upon getting on a friendly basis with him
asked him "to be good enough to show the jury the extreme limit to which
he could raise his arm since the accident." The plaintiff slowly and
with considerable difficulty raised his arm to the parallel of his
shoulder. "Now, using the same arm, show the jury how high you could get
it up before the accident," quietly continued the attorney; whereupon
the witness extended his arm to its full height above his head, amid
peals of laughter from the court and jury.

In a case of murder, to which the defence of insanity was set up, a
medical witness called on behalf of the accused swore that in his
opinion the accused, at the time he killed the deceased, was affected
with a homicidal mania, and urged to the act by an _irresistible_
impulse. The judge, not satisfied with this, first put the witness some
questions on other subjects, and then asked, "Do you think the accused
would have acted as he did if a policeman had been present?" to which
the witness at once answered in the negative. Thereupon the judge
remarked, "Your definition of an irresistible impulse must then be an
impulse irresistible at all times except when a policeman is present."



In the preceding chapters it was attempted to offer a few suggestions,
gathered from experience, for the proper handling of an honest witness
who, through ignorance or partisanship, and more or less
unintentionally, had testified to a mistaken state of facts injurious to
our side of the litigation. In the present chapter it is proposed to
discuss the far more difficult task of exposing, by the arts of
cross-examination, the intentional Fraud, the perjured witness. Here it
is that the greatest ingenuity of the trial lawyer is called into play;
here rules help but little as compared with years of actual experience.
What can be conceived more difficult in advocacy than the task of
proving a witness, whom you may neither have seen nor heard of before he
gives his testimony against you, to be a wilful perjurer, as it were out
of his own mouth?

It seldom happens that a witness's entire testimony is false from
beginning to end. Perhaps the greater part of it is true, and only the
crucial part--the point, however, on which the whole case may turn--is
wilfully false. If, at the end of his direct testimony, we conclude that
the witness we have to cross-examine--to continue the imaginary trial we
were conducting in the previous chapter--comes under this class, what
means are we to employ to expose him to the jury?

Let us first be certain we are right in our estimate of him--that he
intends perjury. Embarrassment is one of the emblems of perjury, but by
no means always so. The novelty and difficulty of the situation--being
called upon to testify before a room full of people, with lawyers on all
sides ready to ridicule or abuse--often occasions embarrassment in
witnesses of the highest integrity. Then again some people are
constitutionally nervous and could be nothing else when testifying in
open court. Let us be sure our witness is not of this type before we
subject him to the particular form of torture we have in store for the

Witnesses of a low grade of intelligence, when they testify falsely,
usually display it in various ways: in the voice, in a certain vacant
expression of the eyes, in a nervous twisting about in the witness
chair, in an apparent effort to recall to mind the exact wording of
their story, and especially in the use of language not suited to their
station in life. On the other hand, there is something about the manner
of an honest but ignorant witness that makes it at once manifest to an
experienced lawyer that he is narrating only the things that he has
actually seen and heard. The expression of the face changes with the
narrative as he recalls the scene to his mind; he looks the examiner
full in the face; his eye brightens as he recalls to mind the various
incidents; he uses gestures natural to a man in his station of life, and
suits them to the part of the story he is narrating, and he tells his
tale in his own accustomed language.

If, however, the manner of the witness and the wording of his testimony
bear all the earmarks of fabrication, it is often useful, as your first
question, to ask him to repeat his story. Usually he will repeat it in
almost identically the same words as before, showing he has learned it
by heart. Of course it is possible, though not probable, that he has
done this and still is telling the truth. Try him by taking him to the
middle of his story, and from there jump him quickly to the beginning
and then to the end of it. If he is speaking by rote rather than from
recollection, he will be sure to succumb to this method. He has no facts
with which to associate the wording of his story; he can only call it to
mind as a whole, and not in detachments. Draw his attention to other
facts entirely disassociated with the main story as told by himself. He
will be entirely unprepared for these new inquiries, and will draw upon
his imagination for answers. Distract his thoughts again to some new
part of his main story and then suddenly, when his mind is upon another
subject, return to those considerations to which you had first called
his attention, and ask him the same questions a second time. He will
again fall back upon his imagination and very likely will give a
different answer from the first--and you have him in the net. He cannot
invent answers as fast as you can invent questions, and at the same time
remember his previous inventions correctly; he will not keep his answers
all consistent with one another. He will soon become confused and, from
that time on, will be at your mercy. Let him go as soon as you have made
it apparent that he is not mistaken, but lying.

An amusing account is given in the _Green Bag_ for November, 1891, of
one of Jeremiah Mason's cross-examinations of such a witness. "The
witness had previously testified to having heard Mason's client make a
certain statement, and it was upon the evidence of that statement that
the adversary's case was based. Mr. Mason led the witness round to his
statement, and again it was repeated verbatim. Then, without warning, he
walked to the stand, and pointing straight at the witness said, in his
high, impassioned voice, 'Let's see that paper you've got in your
waistcoat pocket!' Taken completely by surprise, the witness
mechanically drew a paper from the pocket indicated, and handed it to
Mr. Mason. The lawyer slowly read the exact words of the witness in
regard to the statement, and called attention to the fact that they were
in the handwriting of the lawyer on the other side.

"'Mr. Mason, how under the sun did you know that paper was there?' asked
a brother lawyer. 'Well,' replied Mr. Mason, 'I thought he gave that
part of his testimony just as if he'd heard it, and I noticed every time
he repeated it he put his hand to his waistcoat pocket, and then let it
fall again when he got through.'"

Daniel Webster considered Mason the greatest lawyer that ever practised
at the New England Bar. He said of him, "I would rather, after my own
experience, meet all the lawyers I have ever known combined in a case,
than to meet him alone and single-handed." Mason was always reputed to
have possessed to a marked degree "the instinct for the weak point" in
the witness he was cross-examining.

If perjured testimony in our courts were confined to the ignorant
classes, the work of cross-examining them would be a comparatively
simple matter, but unfortunately for the cause of truth and justice this
is far from the case. Perjury is decidedly on the increase, and at the
present time scarcely a trial is conducted in which it does not appear
in a more or less flagrant form. Nothing in the trial of a cause is so
difficult as to expose the perjury of a witness whose intelligence
enables him to hide his lack of scruple. There are various methods of
attempting it, but no uniform rule can be laid down as to the proper
manner to be displayed toward such a witness. It all depends upon the
individual character you have to unmask. In a large majority of cases
the chance of success will be greatly increased by not allowing the
witness to see that you suspect him, before you have led him to commit
himself as to various matters with which you have reason to believe you
can confront him later on.

Two famous cross-examiners at the Irish Bar were Sergeant Sullivan,
afterwards Master of the Rolls in Ireland, and Sergeant Armstrong. Barry
O'Brien, in his "Life of Lord Russell," describes their methods.
"Sullivan," he says, "approached the witness quite in a friendly way,
seemed to be an impartial inquirer seeking information, looked surprised
at what the witness said, appeared even grateful for the additional
light thrown on the case. 'Ah, indeed! Well, as you have said so much,
perhaps you can help us a little further. Well, really, my Lord, this is
a very intelligent man.' So playing the witness with caution and skill,
drawing him stealthily on, keeping him completely in the dark about the
real point of attack, the 'little sergeant' waited until the man was in
the meshes, and then flew at him and shook him as a terrier would a rat.

"The 'big Sergeant' (Armstrong) had more humor and more power, but less
dexterity and resource. His great weapon was ridicule. He laughed at the
witness and made everybody else laugh. The witness got confused and lost
his temper, and then Armstrong pounded him like a champion in the ring."

In some cases it is wise to confine yourself to one or two salient
points on which you feel confident you can get the witness to contradict
himself out of his own mouth. It is seldom useful to press him on
matters with which he is familiar. It is the safer course to question
him on circumstances connected with his story, but to which he has not
already testified and for which he would not be likely to prepare

A simple but instructive example of cross-examination, conducted along
these lines, is quoted from Judge J. W. Donovan's "Tact in Court." It is
doubly interesting in that it occurred in Abraham Lincoln's first
defence at a murder trial.

"Grayson was charged with shooting Lockwood at a camp-meeting, on the
evening of August 9, 18--, and with running away from the scene of the
killing, which was witnessed by Sovine. The proof was so strong that,
even with an excellent previous character, Grayson came very near being
lynched on two occasions soon after his indictment for murder.

"The mother of the accused, after failing to secure older counsel,
finally engaged young Abraham Lincoln, as he was then called, and the
trial came on to an early hearing. No objection was made to the jury,
and no cross-examination of witnesses, save the last and only important
one, who swore that he knew the parties, saw the shot fired by Grayson,
saw him run away, and picked up the deceased, who died instantly.

"The evidence of guilt and identity was morally certain. The attendance
was large, the interest intense. Grayson's mother began to wonder why
'Abraham remained silent so long and why he didn't do something!' The
people finally rested. The tall lawyer (Lincoln) stood up and eyed the
strong witness in silence, without books or notes, and slowly began his
defence by these questions:

"_Lincoln._ 'And you were with Lockwood just before and saw the

"_Witness._ 'Yes.'

"_Lincoln._ 'And you stood very near to them?'

"_Witness._ 'No, about twenty feet away.'

"_Lincoln._ 'May it not have been _ten_ feet?'

"_Witness._ 'No, it was twenty feet _or more_.'

"_Lincoln._ 'In the open field?'

"_Witness._ 'No, in the timber.'

"_Lincoln._ 'What kind of timber?'

"_Witness._ 'Beech timber.'

"_Lincoln._ 'Leaves on it are rather thick in August?'

"_Witness._ 'Rather.'

"_Lincoln._ 'And you think _this_ pistol was the one used?'

"_Witness._ 'It looks like it.'

"_Lincoln._ 'You could see defendant shoot--see how the barrel hung, and
all about it?'

"_Witness._ 'Yes.'

"_Lincoln._ 'How near was this to the meeting place?'

"_Witness._ 'Three-quarters of a mile away.'

"_Lincoln._ 'Where were the lights?'

"_Witness._ 'Up by the minister's stand.'

"_Lincoln._ 'Three-quarters of a mile away?'

"_Witness._ 'Yes,--I answered ye _twiste_.'

"_Lincoln._ 'Did you not see a candle there, with Lockwood or Grayson?'

"_Witness._ 'No! what would we want a candle for?'

"_Lincoln._ 'How, then, did you see the shooting?'

"_Witness._ 'By moonlight!' (defiantly).

"_Lincoln._ 'You saw this shooting at ten at night--in beech timber,
three-quarters of a mile from the lights--saw the pistol barrel--saw
the man fire--saw it twenty feet away--saw it all by moonlight? Saw it
nearly a mile from the camp lights?'

"_Witness._ 'Yes, I told you so before.'

"The interest was now so intense that men leaned forward to catch the
smallest syllable. Then the lawyer drew out a blue-covered almanac from
his side coat pocket--opened it slowly--offered it in evidence--showed
it to the jury and the court--read from a page with careful deliberation
that the moon on that night was unseen and only arose at _one_ the next

"Following this climax Mr. Lincoln moved the arrest of the perjured
witness as the real murderer, saying: 'Nothing but _a motive to clear
himself_ could have induced him to swear away so falsely the life of one
who never did him harm!' With such determined emphasis did Lincoln
present his showing that the court ordered Sovine arrested, and under
the strain of excitement he broke down and confessed to being the one
who fired the fatal shot himself, but denied it was intentional."

A difficult but extremely effective method of exposing a certain kind of
perjurer is to lead him gradually to a point in his story, where--in his
answer to the final question "Which?"--he will have to choose either one
or the other of the only two explanations left to him, either of which
would degrade if not entirely discredit him in the eyes of the jury.

The writer once heard the Hon. Joseph H. Choate make very telling use of
this method of examination. A stock-broker was being sued by a married
woman for the return of certain bonds and securities in the broker's
possession, which she alleged belonged to her. Her husband took the
witness-stand and swore that he had deposited the securities with the
stock-broker as collateral against his market speculations, but that
they did not belong to him, and that he was acting for himself and not
as agent for his wife, and had taken her securities unknown to her.

It was the contention of Mr. Choate that, even if the bonds belonged to
the wife, she had either consented to her husband's use of the bonds, or
else was a partner with him in the transaction. Both of these
contentions were denied under oath by the husband.

_Mr. Choate._ "When you ventured into the realm of speculations in Wall
Street I presume you contemplated the possibility of the market going
against you, did you not?"

_Witness._ "Well, no, Mr. Choate, I went into Wall Street to make money,
not to lose it."

_Mr. Choate._ "Quite so, sir; but you will admit, will you not, that
sometimes the stock market goes contrary to expectations?"

_Witness._ "Oh, yes, I suppose it does."

_Mr. Choate._ "You say the bonds were not your own property, but your

_Witness._ "Yes, sir."

_Mr. Choate._ "And you say that she did not lend them to you for
purposes of speculation, or even know you had possession of them?"

_Witness._ "Yes, sir."

_Mr. Choate._ "You even admit that when you deposited the bonds with
your broker as collateral against your stock speculations, you did not
acquaint him with the fact that they were not your own property?"

_Witness._ "I did not mention whose property they were, sir."

_Mr. Choate_ (in his inimitable style). "Well, sir, in the event of the
market going against you and your collateral being sold to meet your
losses, _whom did you intend to cheat, your broker or your wife_?"

The witness could give no satisfactory answer, and for once a New York
jury was found who were willing to give a verdict against the customer
and in favor of a Wall Street broker.

In the great majority of cases, however, the most skilful efforts of the
cross-examiner will fail to lead the witness into such "traps" as these.
If you have accomplished one such _coup_, be content with the point you
have made; do not try to make another with the same witness; sit down
and let the witness leave the stand.

But let us suppose you are examining a witness with whom no such climax
is possible. Here you will require infinite patience and industry. Try
to show that his story is inconsistent with itself, or with other known
facts in the case, or with the ordinary experience of mankind. There is
a wonderful power in persistence. If you fail in one quarter, abandon it
and try something else. There is surely a weak spot somewhere, if the
story is perjured. Frame your questions skilfully. Ask them as if you
wanted a certain answer, when in reality you desire just the opposite
one. "Hold your own temper while you lead the witness to lose his" is a
Golden Rule on all such occasions. If you allow the witness a chance to
give his reasons or explanations, you may be sure they will be damaging
to you, not to him. If you can succeed in tiring out the witness or
driving him to the point of sullenness, you have produced the effect of

But it is not intended to advocate the practice of lengthy
cross-examinations because the effect of them, unless the witness is
broken down, is to lead the jury to exaggerate the importance of
evidence given by a witness who requires so much cross-examination in
the attempt to upset him. "During the Tichborne trial for perjury, a
remarkable man named Luie was called to testify. He was a shrewd witness
and told his tale with wonderful precision and apparent accuracy. That
it was untrue there could hardly be a question, but that it could be
proved untrue was extremely doubtful and an almost hopeless task. It was
an improbable story, but still was not an absolutely impossible one. If
true, however, the claimant was the veritable Roger Tichborne, or at
least the probabilities would be so immensely in favor of that
supposition that no jury would agree in finding that he was Arthur
Orton. His manner of giving his evidence was perfect. After the trial
one of the jurors was asked what he thought of Luie's evidence, and if
he ever attached any importance to his story. He replied that at the
close of the evidence-in-chief he thought it so improbable that no
credence could be given to it. But after Mr. Hawkins had been at him for
a day and could not shake him, I began to think, if such a
cross-examiner as that cannot touch him, there must be something in what
he says, and I began to waver. I could not understand how it was that,
if it was all lies, it did not break down under such able counsel."[9]

  [9] "Hints on Advocacy," Harris.

The presiding judge, whose slightest word is weightier than the
eloquence of counsel, will often interrupt an aimless and prolonged
cross-examination with an abrupt, "Mr. ----, I think we are wasting
time," or "I shall not allow you to pursue that subject further," or "I
cannot see the object of this examination." This is a setback from which
only the most experienced advocate can readily recover. Before the judge
spoke, the jury, perhaps, were already a little tired and inattentive
and anxious to finish the case; they were just in the mood to agree with
the remark of his Honor, and the "ATMOSPHERE of the case," as I have
always termed it, was fast becoming unfavorable to the delinquent
attorney's client. How important a part in the final outcome of every
trial this atmosphere of the case usually plays! Many jurymen lose sight
of the parties to the litigation--our clients--in their absorption over
the conflict of wits going on between their respective lawyers.

It is in criminal prosecutions where local politics are involved, that
the jury system is perhaps put to its severest test. The ordinary
juryman is so apt to be blinded by his political prejudices that where
the guilt or innocence of the prisoner at the Bar turns upon the
question as to whether the prisoner did or did not perform some act,
involving a supposed advantage to his political party, the jury is apt
to be divided upon political lines.

About ten years ago, when a wave of political reform was sweeping over
New York City, the Good Government Clubs caused the arrest of about
fifty inspectors of election for violations of the election laws. These
men were all brought up for trial in the Supreme Court criminal term,
before Mr. Justice Barrett. The prisoners were to be defended by various
leading trial lawyers, and everything depended upon the result of the
first few cases tried. If these trials resulted in acquittals, it was
anticipated that there would be acquittals all along the line; if the
first offenders put on trial were convicted and sentenced to severe
terms in prison, the great majority of the others would plead guilty,
and few would escape.

At that time the county of New York was divided, for purposes of voting,
into 1067 election districts, and on an average perhaps 250 votes were
cast in each district. An inspector of one of the election districts was
the first man called for trial. The charge against him was the failure
to record correctly the vote cast in his district for the Republican
candidate for alderman. In this particular election district there had
been 167 ballots cast, and it was the duty of the inspectors to count
them and return the result of their count to police headquarters.

At the trial twelve respectable citizens took the witness chair, one
after another, and affirmed that they lived in the prisoner's election
district, and had all cast their ballots on election day for the
Republican candidate. The official count for that district, signed by
the prisoner, was then put in evidence, which read: Democratic votes,
167; Republican, 0. There were a number of witnesses called by the
defence who were Democrats. The case began to take on a political
aspect, which was likely to result in a divided jury and no conviction,
since it had been shown that the prisoner had a most excellent
reputation and had never been suspected of wrong-doing before. Finally
the prisoner himself was sworn in his own behalf.

It was the attempt of the cross-examiner to leave the witness in such a
position before the jury that no matter what their politics might be,
they could not avoid convicting him. There were but five questions

_Counsel._ "You have told us, sir, that you have a wife and seven
children depending upon you for support. I presume your desire is not to
be obliged to leave them; is it not?"

_Prisoner._ "Most assuredly, sir."

_Counsel._ "Apart from that consideration I presume you have no
particular desire to spend a term of years in Sing Sing prison?"

_Prisoner._ "Certainly not, sir."

_Counsel._ "Well, you have heard twelve respectable citizens take the
witness-stand and swear they voted the Republican ticket in your
district, have you not?"

_Prisoner._ "Yes, sir."

_Counsel_ (pointing to the jury). "And you see these twelve respectable
gentlemen sitting here ready to pass judgment upon the question of your
liberty, do you not?"

_Prisoner._ "I do, sir."

_Counsel_ (impressively, but quietly). "Well, now, Mr. ----, you will
please explain to these twelve gentlemen (pointing to jury) how it was
that the ballots cast by the other twelve gentlemen were not counted by
you, and then you can take your hat and walk right out of the court room
a free man."

The witness hesitated, cast down his eyes, but made no answer--and
counsel sat down.

Of course a conviction followed. The prisoner was sentenced to five
years in state prison. During the following few days nearly thirty
defendants, indicted for similar offences, pleaded guilty, and the
entire work of the court was completed within a few weeks. There was
not a single acquittal or disagreement.

Occasionally, when sufficient knowledge of facts about the witness or
about the details of his direct testimony can be correctly anticipated,
a trap may be set into which even a clever witness, as in the
illustration that follows, will be likely to fall.

During the lifetime of Dr. J. W. Ranney there were few physicians in
this country who were so frequently seen on the witness-stand,
especially in damage suits. So expert a witness had he become that Chief
Justice Van Brunt many years ago is said to have remarked, "Any lawyer
who attempts to cross-examine Dr. Ranney is a fool." A case occurred a
few years before Dr. Ranney died, however, where a failure to
cross-examine would have been tantamount to a confession of judgment,
and the trial lawyer having the case in charge, though fully aware of
the dangers, was left no alternative, and as so often happens where
"fools rush in," made one of those lucky "bull's eyes" that is perhaps
worth recording.

It was a damage case brought against the city by a lady who, on her way
from church one spring morning, had tripped over an obscure encumbrance
in the street, and had, in consequence, been practically bedridden for
the three years leading up to the day of trial. She was brought into the
court room in a chair and was placed in front of the jury, a pallid,
pitiable object, surrounded by her women friends, who acted upon this
occasion as nurses, constantly bathing her hands and face with
ill-smelling ointments, and administering restoratives, with marked
effect upon the jury.

Her counsel, Ex-chief Justice Noah Davis, claimed that her spine had
been permanently injured, and asked the jury for $50,000 damages.

It appeared that Dr. Ranney had been in constant attendance upon the
patient ever since the day of her accident. He testified that he had
visited her some three hundred times and had examined her minutely at
least two hundred times in order to make up his mind as to the
absolutely correct diagnosis of her case, which he was now thoroughly
satisfied was one of genuine disease of the spinal marrow itself. Judge
Davis asked him a few preliminary questions, and then gave the doctor
his head and let him "turn to the jury and tell them all about it." Dr.
Ranney spoke uninterruptedly for nearly three-quarters of an hour. He
described in detail the sufferings of his patient since she had been
under his care; his efforts to relieve her pain; the hopeless nature of
her malady. He then proceeded in a most impressive way to picture to the
jury the gradual and relentless progress of the disease as it assumed
the form of creeping paralysis, involving the destruction of one organ
after another until death became a blessed relief. At the close of this
recital, without a question more, Judge Davis said in a calm but
triumphant tone, "Do you wish to cross-examine?"

Now the point in dispute--there was no defence on the merits--was the
nature of the patient's malady. The city's medical witnesses were
unanimous that the lady had not, and could not have, contracted spinal
disease from the slight injury she had received. They styled her
complaint as "hysterical," existing in the patient's mind alone, and not
indicating nor involving a single diseased organ; but the jury evidently
all believed Dr. Ranney, and were anxious to render a verdict on his
testimony. He must be cross-examined. Absolute failure could be no worse
than silence, though it was evident that, along expected lines,
questions relating to his direct evidence would be worse than useless.
Counsel was well aware of the doctor's reputed fertility of resource,
and quickly decided upon his tactics.

The cross-examiner first directed his questions toward developing before
the jury the fact that the witness had been the medical expert for the
New York, New Haven, and Hartford R. R. thirty-five years, for the New
York Central R. R. forty years, for the New York and Harlem River R. R.
twenty years, for the Erie R. R. fifteen years, and so on until the
doctor was forced to admit that he was so much in court as a witness in
defence of these various railroads, and was so occupied with their
affairs that he had but comparatively little time to devote to his
reading and private practice.

_Counsel_ (perfectly quietly). "Are you able to give us, doctor, the
name of any medical authority that agrees with you when you say that the
particular group of symptoms existing in this case points to one
disease and one only?"

_Doctor._ "Oh, yes, Dr. Ericson agrees with me."

_Counsel._ "Who is Dr. Ericson, if you please?"

_Doctor_ (with a patronizing smile). "Well, Mr. ----, Ericson was
probably one of the most famous surgeons that England has ever
produced." (There was a titter in the audience at the expense of

_Counsel._ "What book has he written?"

_Doctor_ (still smiling). "He has written a book called 'Ericson on the
Spine,' which is altogether the best known work on the subject." (The
titter among the audience grew louder.)

_Counsel._ "When was this book published?"

_Doctor._ "About ten years ago."

_Counsel._ "Well, how is it that a man whose time is so much occupied as
you have told us yours is, has leisure enough to look up medical
authorities to see if they agree with him?"

_Doctor_ (fairly beaming on counsel). "Well, Mr. ----, to tell you the
truth, I have often heard of you, and I half suspected you would ask me
some such foolish question; so this morning after my breakfast, and
before starting for court, I took down from my library my copy of
Ericson's book, and found that he agreed entirely with my diagnosis in
this case." (Loud laughter at expense of counsel, in which the jury

_Counsel_ (reaching under the counsel table and taking up his own copy
of "Ericson on the Spine," and walking deliberately up to the witness).
"Won't you be good enough to point out to me where Ericson adopts your
view of this case?"

_Doctor_ (embarrassed). "Oh, I can't do it now; it is a very thick

_Counsel_ (still holding out the book to the witness). "But you forget,
doctor, that thinking I might ask you some such foolish question, you
examined your volume of Ericson this very morning after breakfast and
before coming to court."

_Doctor_ (becoming more embarrassed and still refusing to take the
book). "I have not time to do it now."

_Counsel._ "_Time!_ why there is all the time in the world."

_Doctor._ (no answer).

Counsel and witness eye each other closely.

_Counsel_ (sitting down, still eying witness). "I am sure the court will
allow me to suspend my examination until you shall have had time to turn
to the place you read this morning in that book, and can reread it now
aloud to the jury."

_Doctor_ (no answer).

The court room was in deathly silence for fully three minutes. The
witness _wouldn't_ say anything, counsel for plaintiff _didn't dare_ to
say anything, and counsel for the city _didn't want_ to say anything;
he saw that he had caught the witness in a manifest falsehood, and that
the doctor's whole testimony was discredited with the jury unless he
could open to the paragraph referred to which counsel well knew did not
exist in the whole work of Ericson.

At the expiration of a few minutes, Mr. Justice Barrett, who was
presiding at the trial, turned quietly to the witness and asked him if
he desired to answer the question, and upon his replying that he did not
intend to answer it any further than he had already done, he was excused
from the witness-stand amid almost breathless silence in the court room.
As he passed from the witness chair to his seat, he stooped and
whispered into the ear of counsel, "You are the ----est most impertinent
man I have ever met."

After a ten days' trial the jury were unable to forget the collapse of
the plaintiff's principal witness, and failed to agree upon a verdict.



In these days when it is impossible to know everything, but it becomes
necessary for success in any avocation to know something of everything
and everything of something, the expert is more and more called upon as
a witness both in civil and criminal cases. In these times of
specialists, their services are often needed to aid the jury in their
investigations of questions of fact relating to subjects with which the
ordinary man is not acquainted.

The cross-examination of various experts, whether medical, handwriting,
real estate, or other specialists, is a subject of growing importance,
but it is intended in this chapter merely to make some suggestions, and
to give a few illustrations of certain methods that may be adopted with
more or less success in the examination of this class of witnesses.

It has become a matter of common observation that not only can the
honest opinions of different experts be obtained upon opposite sides of
the same question, but also that dishonest opinions may be obtained upon
different sides of the same question.

Attention is also called to the distinction between mere matters of
scientific fact and mere matters of opinion. For example: certain
medical experts may be called to establish certain medical facts which
are not mere matters of opinion. On such facts the experts could not
disagree; but in the province of mere opinion it is well known that the
experts differ so much among themselves that but little credit is given
to mere expert opinion as such.

As a general thing, it is unwise for the cross-examiner to attempt to
cope with a specialist in his own field of inquiry. Lengthy
cross-examinations along the lines of the expert's theory are usually
disastrous and should rarely be attempted.

Many lawyers, for example, undertake to cope with a medical or
handwriting expert on his own ground,--surgery, correct diagnosis, or
the intricacies of penmanship. In some rare instances (more especially
with poorly educated physicians) this method of cross-questioning is
productive of results. More frequently, however, it only affords an
opportunity for the doctor to enlarge upon the testimony he has already
given, and to explain what might otherwise have been misunderstood or
even entirely overlooked by the jury. Experience has led me to believe
that a physician should rarely be cross-examined on his own specialty,
unless the importance of the case has warranted so close a study by the
counsel of the particular subject under discussion as to justify the
experiment; and then only when the lawyer's research of the medical
authorities, which he should have with him in court, convinces him that
he can expose the doctor's erroneous conclusions, not only to himself,
but to a jury who will not readily comprehend the abstract theories of
physiology upon which even the medical profession itself is divided.

On the other hand, some careful and judicious questions, seeking to
bring out separate facts and separate points from the knowledge and
experience of the expert, which will tend to support the theory of the
attorney's own side of the case, are usually productive of good results.
In other words, the art of the cross-examiner should be directed to
bring out such scientific facts from the knowledge of the expert as will
help his own case, and thus tend to destroy the weight of the opinion
of the expert given against him.

Another suggestion which should always be borne in mind is that no
question should be put to an expert which is in any way so broad as to
give the expert an opportunity to expatiate upon his own views, and thus
afford him an opportunity in his answer to give his reasons, in his own
way, for his opinions, which counsel calling him as an expert might not
otherwise have fully brought out in his examination.

It was in the trial of Dr. Buchanan on the charge of murdering his wife,
that a single, ill-advised question put upon cross-examination to the
physician who had attended Mrs. Buchanan upon her death-bed, and who had
given it as his opinion that her death was due to natural causes, which
enabled the jury, after twenty-four hours of dispute among themselves,
finally to agree against the prisoner on a verdict of murder in the
first degree, resulting in Buchanan's execution.

The charge against Dr. Buchanan was that he had poisoned his wife--a
woman considerably older than himself, and who had made a will in his
favor--with morphine and atropine, each drug being used in such
proportion as to effectually obliterate the group of symptoms attending
death when resulting from the use of either drug alone.

At Buchanan's trial the district attorney found himself in the
extremely awkward position of trying to persuade a jury to decide that
Mrs. Buchanan's death was, beyond all reasonable doubt, the result of an
overdose of morphine mixed with atropine administered by her husband,
although a respectable physician, who had attended her at her death-bed,
had given it as his opinion that she died from natural causes, and had
himself made out a death certificate in which he attributed her death to

It was only fair to the prisoner that he should be given the benefit of
the testimony of this physician. The District Attorney, therefore,
called the doctor to the witness-stand and questioned him concerning the
symptoms he had observed during his treatment of Mrs. Buchanan just
prior to her death, and developed the fact that the doctor had made out
a death certificate in which he had certified that in his opinion
apoplexy was the sole cause of death. The doctor was then turned over to
the lawyers for the defence for cross-examination.

One of the prisoner's counsel, who had far more knowledge of medicine
than of the art of cross-examination, was assigned the important duty of
cross-examining this witness. After badgering the doctor for an hour or
so with technical medical questions more or less remote from the subject
under discussion, and tending to show the erudition of the lawyer who
was conducting the examination rather than to throw light upon the
inquiry uppermost in the minds of the jury, the cross-examiner finally
reproduced the death certificate and put it in evidence, and calling
the doctor's attention to the statement therein made--that death was the
result of apoplexy--exclaimed, while flourishing the paper in the air:--

"Now, doctor, you have told us what this lady's symptoms were, you have
told us what you then believed was the cause of her death; I now ask
you, has anything transpired since Mrs. Buchanan's death which would
lead you to change your opinion as it is expressed in this paper?"

The doctor settled back in his chair and slowly repeated the question
asked: "Has--anything--transpired--since--Mrs. Buchanan's--death--
in--this--paper?" The witness turned to the judge and inquired if in
answer to such a question he would be allowed to speak of matters that
had come to his knowledge since he wrote the certificate. The judge
replied: "The question is a broad one. Counsel asks you if you know of
_any reason_ why you should change your former opinion?"

The witness leaned forward to the stenographer and requested him to read
the question over again. This was done. The attention of everybody in
court was by this time focussed upon the witness, intent upon his
answer. It seemed to appear to the jury as if this must be the turning
point of the case.

The doctor having heard the question read a second time, paused for a
moment, and then straightening himself in his chair, turned to the
cross-examiner and said, "I wish to ask _you_ a question, Has the report
of the chemist telling of his discovery of atropine and morphine in the
contents of this woman's stomach been offered in evidence yet?" The
court answered, "It has not."

"One more question," said the doctor, "Has the report of the pathologist
_yet_ been received in evidence?" The court replied, "No."

"_Then_" said the doctor, rising in his chair, "I can answer your
question truthfully, that _as yet_ in the absence of the pathological
report and in the absence of the chemical report I know of no legal
evidence which would cause me to alter the opinion expressed in my death

It is impossible to exaggerate the impression made upon the court and
jury by these answers. All the advantage that the prisoner might have
derived from the original death certificate was entirely swept away.

The trial lasted for fully two weeks after this episode. When the jury
retired to their consultation room at the end of the trial, they found
they were utterly unable to agree upon a verdict. They argued among
themselves for twenty-four hours without coming to any conclusion. At
the expiration of this time the jury returned to the court room and
asked to have the testimony of this doctor reread to them by the
stenographer. The stenographer, as he read from his notes, reproduced
the entire scene which had been enacted two weeks before. The jury
retired a second time and immediately agreed upon their verdict of

The cross-examinations of the medical witnesses in the Buchanan case
conducted by this same "Medico-legal Wonder" were the subject of very
extended newspaper praise at the time, one daily paper devoting the
entire front page of its Sunday edition to his portrait.

How expert witnesses have been discredited with juries in the past,
should serve as practical guides for the future. The whole effect of the
testimony of an expert witness may sometimes effectually be destroyed by
putting the witness to some unexpected and offhand test at the trial, as
to his experience, his ability and discrimination as an expert, so that
in case of his failure to meet the test he can be held up to ridicule
before the jury, and thus the laughter at his expense will cause the
jury to forget anything of weight that he has said against you.

I have always found this to be the most effective method to
cross-examine a certain type of professional medical witnesses now so
frequently seen in our courts. A striking instance of the efficacy of
this style of cross-examination was experienced by the writer in a
damage suit against the city of New York, tried in the Supreme Court
sometime in 1887.

A very prominent physician, president of one of our leading clubs at the
time, but now dead, had advised a woman who had been his housekeeper
for thirty years, and who had broken her ankle in consequence of
stepping into an unprotected hole in the street pavement, to bring suit
against the city to recover $40,000 damages. There was very little
defence to the principal cause of action: the hole in the street _was_
there, and the plaintiff _had_ stepped into it; but her right to recover
substantial damages was vigorously contested.

Her principal, in fact her only medical witness was her employer, the
famous physician. The doctor testified to the plaintiff's sufferings,
described the fracture of her ankle, explained how he had himself set
the broken bones and attended the patient, but affirmed that all his
efforts were of no avail as he could bring about nothing but a most
imperfect union of the bones, and that his housekeeper, a most
respectable and estimable lady, would be lame for life. His manner on
the witness-stand was exceedingly dignified and frank, and evidently
impressed the jury. A large verdict of fully $15,000 was certain to be
the result unless this witness's hold upon the jury could be broken on
his cross-examination. There was no reason known to counsel why this
ankle should not have healed promptly, as such fractures usually do; but
how to make the jury _realize_ the fact was the question. The intimate
personal acquaintance between the cross-examiner and the witness was
another embarrassment.

The cross-examination began by showing that the witness, although a
graduate of Harvard, had not immediately entered a medical school, but
on the contrary had started in business in Wall Street, had later been
manager of several business enterprises, and had not begun the study of
medicine until he was forty years old. The examination then continued in
the most amiable manner possible, each question being asked in a tone
almost of apology.

_Counsel._ "We all know, doctor, that you have a large and lucrative
family practice as a general practitioner; but is it not a fact that in
this great city, where accidents are of such common occurrence, surgical
cases are usually taken to the hospitals and cared for by experienced

_Doctor._ "Yes, sir, that is so."

_Counsel._ "You do not even claim to be an experienced surgeon?"

_Doctor._ "Oh, no, sir. I have the experience of any general

_Counsel._ "What would be the surgical name for the particular form of
fracture that this lady suffered?"

_Doctor._ "What is known as a 'Potts fracture of the ankle.'"

_Counsel._ "That is a well-recognized form of fracture, is it not?"

_Doctor._ "Oh, yes."

_Counsel_ (chancing it). "Would you mind telling the jury about when you
had a fracture of this nature in your regular practice, the last before
this one?"

_Doctor_ (dodging). "I should not feel at liberty to disclose the names
of my patients."

_Counsel_ (encouraged). "I am not asking for names and secrets of
patients--far from it. I am only asking for the date, doctor; but on
your oath."

_Doctor._ "I couldn't possibly give you the date, sir."

_Counsel_ (still feeling his way). "Was it within the year preceding
this one?"

_Doctor_ (hesitating). "I would not like to say, sir."

_Counsel_ (still more encouraged). "I am sorry to press you, sir; but I
am obliged to demand a positive answer from you whether or not you had
had a similar case of 'Potts fracture of the ankle' the year preceding
this one?"

_Doctor._ "Well, no, I cannot remember that I had."

_Counsel._ "Did you have one two years before?"

_Doctor._ "I cannot say."

_Counsel_ (forcing the issue). "Did you have one within five years
preceding the plaintiff's case?"

_Doctor._ "I am unable to say positively."

_Counsel_, (appreciating the danger of pressing the inquiry further, but
as a last resort). "Will you swear that you _ever_ had a case of 'Potts
fracture' within your own practice before this one? I tell you frankly,
if you say you have, I shall ask you day and date, time, place, and

_Doctor_ (much embarrassed). "Your question is an embarrassing one. I
should want time to search my memory."

_Counsel._ "I am only asking you for your best memory as a gentleman,
and under oath."

_Doctor._ "If you put it that way, I will say I cannot now remember of
any case previous to the one in question, excepting as a student in the

_Counsel._ "But does it not require a great deal of practice and
experience to attend successfully so serious a fracture as that
involving the ankle joint?"

_Doctor._ "Oh, yes."

_Counsel._ "Well, doctor, speaking frankly, won't you admit that 'Potts
fractures' are daily being attended to in our hospitals by experienced
men, and the use of the ankle fully restored in a few months' time?"

_Doctor._ "That may be, but much depends upon the age of the patient;
and again, in some cases, nothing seems to make the bones unite."

_Counsel_ (stooping under the table and taking up the two lower bones of
the leg attached and approaching the witness). "Will you please take
these, doctor, and tell the jury whether in life they constituted the
bones of a woman's leg or a man's leg?"

_Doctor._ "It is difficult to tell, sir."

_Counsel._ "What, can't you tell the skeleton of a woman's leg from a
man's, doctor?"

_Doctor._ "Oh, yes, I should say it was a woman's leg."

_Counsel_ (smiling and looking pleased). "So in your opinion, doctor,
this was a _woman's_ leg?" [It _was_ a woman's leg.]

_Doctor_ (observing counsel's face and thinking he had made a mistake).
"Oh, I beg your pardon, it is a man's leg, of course. I had not examined
it carefully."

By this time the jury were all sitting upright in their seats and
evinced much amusement at the doctor's increasing embarrassment.

_Counsel_ (still smiling). "Would you be good enough to tell the jury if
it is the right leg or the left leg?"

_Doctor_ (quietly, but hesitatingly). [It is very difficult for the
inexperienced to distinguish right from left.] "This is the _right_

_Counsel_ (astonished). "_What_ do you say, doctor?"

_Doctor_ (much confused). "Pardon me, it is the _left_ leg."

_Counsel._ "Were you not right the first time, doctor. Is it not in fact
the _right_ leg?"

_Doctor._ "I don't think so; no, it is the _left_ leg."

_Counsel_ (again stooping and bringing from under the table the bones of
the foot attached together, and handing it to the doctor). "Please put
the skeleton of the foot into the ankle joint of the bones you already
have in your hand, and then tell me whether it is the right or left

_Doctor_ (confidently). "Yes, it is the left leg, as I said before."

_Counsel_ (uproariously). "But, doctor, don't you see you have inserted
the _foot_ into the _knee joint_? Is that the way it is in life?"

The doctor, amid roars of laughter from the jury, in which the entire
court room joined, hastily readjusted the bones and sat blushing to the
roots of his hair. Counsel waited until the laughter had subsided, and
then said quietly, "I think I will not trouble you further, doctor."

This incident is not the least bit exaggerated; on the contrary, the
impression made by the occurrence is difficult to present adequately on
paper. Counsel on both sides proceeded to sum up the case, and upon the
part of the defence no allusion whatsoever was made to the incident just
described. The jury appreciated the fact, and returned a verdict for the
plaintiff for $240. Next day the learned doctor wrote a four-page letter
of thanks and appreciation that the results of his "stage fright" had
not been spread before the jury in the closing speech.

An estimate of the susceptibility of occasional juries drawn from some
country panels to have their attention diverted from the facts in a case
by their fondness for entertainment has at times induced attorneys to
try the experiment of framing their questions on cross-examination of
medical experts so that the jury will be amused by the questions
themselves and will overlook the damaging testimony given by a
serious-minded and learned opposing medical witness.

An illustration of this was afforded not long ago by a case brought by
a woman against the Trustees of the New York and Brooklyn Bridge. The
plaintiff, while alighting from a bridge car, stepped into the space
between the car and the bridge platform and fell up to her armpits. She
claimed that she had sustained injuries to her ribs, lungs, and chest,
and that she was suffering from resultant pleurisy and intercostal
neuritis. A specialist on nerve injuries, called by the defence, had
testified that there was nothing the matter with the plaintiff, as he
had tested her with the stethoscope and had made a thorough examination,
had listened at her chest to detect such "rales" as are generally left
after pleurisy, and had failed to find any lesions or injuries to the
pleural nerves whatsoever.

The attorney for the plaintiff, Mirabeau L. Towns of Brooklyn, had
evidently correctly "sized up" the particular jury who were to decide
his case, and proceeded to cross-examine the doctor in _rhyme_, which
the learned physician, absorbed in his task of defending himself, did
not notice until the laughter of the jury advised him that he was being
made ridiculous.

Mr. Towns arose and said:--

_Q._ "Now, doctor, please listen to me. You say for the sake of a modest
fee you examined the plaintiff most carefully?"

_A._ "I tried to do my duty, sir."

_Q._ "But you saw no more than you wanted to see?"

_A._ "What do you mean, sir?"

_Q._ "Well, you laid your head upon her chest?"

_A._ "I did."

_Q._ "That was a most delightful test?"

_A._ "Well, it is the common way of ascertaining if there is anything
abnormal in the lungs."

_Q._ "And you mean to say, doctor, that if your ears are as good as
mine, and with your knowledge of medicine, a mangled pleura's rale and
rattle you'd hear as plain as guns in battle?"

_A._ "I mean to say this, and no more,--that it would be impossible, if
a person was suffering from a lacerated pleura, for me not to detect it
by the test I made."

_Q._ "Now, you did this most carefully?"

_A._ "I did."

_Q._ "For you had to earn your expert's fee?"

_A._ "Of course I was paid for my examination, but that had nothing to
do with it. I want you to understand that I made my examination most

_Q._ "Can you swear that you saw no more than you wanted to see?"

_A._ "I saw nothing."

_Q._ "And each of her ribs, on your oath as a scholar, was as good and
sound as a daddy's dollar?"

(Outburst of laughter, and the judge used his gavel. Dr. ---- appealed
to the court for protection, but Mr. Towns continued.)

_Q._ "You say you think she was malingering?"

_A._ "I do."

_Q._ "So when the poor creature ventured to cope with you and your
science and your stethoscope, for her you'll acknowledge there was
little hope?"

_A._ "I have come here to tell the truth, and I maintain that it would
be very hard for a young woman of her type to deceive me."

(Renewed laughter and the judge's gavel fell with greater force. Counsel
was admonished, but he continued.)

_Q._ "She might scream in anguish till the end of her breath, your
opinion once formed you'd hold until death?"

Not answered.

_Q._ "Though she fell through a hole clear up to her arm, and that's
quite a fall, it did her no harm; in fact, if she'd fallen from Mount
Chimborazo, you'd say she's unhurt and continue to say so. Such a fall
from such a height, one might observe, might break all her ribs, but
ne'er injure a nerve?"

_The Doctor._ "Your honor, I don't wish to be made ridiculous by this
gentleman, and I protest against his questions, they are unfair."

Before the court could rule, Mr. Towns continued:--

_Q._ "And you hope to be seized with the dance of St. Vitus if you found
on the plaintiff intercostal neuritis?"

_The Doctor._ "Your Honor, I refuse to answer."

Here the judge interfered and admonished counsel that he had pursued
this line of inquiry long enough.

That Mr. Towns was correct in his estimate of this absurd panel of
jurors was shown by a very large verdict in favor of his client, and by
a request signed by each one of the jurors personally that counsel would
send them a copy of his cross-examination of the defendant's doctor.

As distinguished from the lengthy, though doubtless scientific,
cross-examination of experts in handwriting with which the profession
has become familiar in many recent famous trials that have occurred in
this city, the following incident cannot fail to serve as a forcible
illustration of the suggestions laid down as to the cross-examination of
specialists. It would almost be thought improbable in a romance, yet
every word of it is true.

In the trial of Ellison for felonious assault upon William Henriques,
who had brought Mr. Ellison's attentions to his daughter, Mrs. Lila
Noeme, to a sudden close by forbidding him his house, the authenticity
of some letters, alleged to have been written by Mrs. Noeme to Mr.
Ellison, was brought in question. The lady herself had strenuously
denied that the alleged compromising documents had ever been written by
her. Counsel for Ellison, the late Charles Brooke, Esq., had evidently
framed his whole cross-examination of Mrs. Noeme upon these letters, and
made a final effort to introduce them in evidence by calling Professor
Ames, the well-known expert in handwriting. He deposed to having closely
studied the letter in question, in conjunction with an admittedly
genuine specimen of the lady's handwriting, and gave it as his opinion
that they were all written by the same hand. Mr. Brooke then offered the
letters in evidence, and was about to read them to the jury when the
assistant district attorney asked permission to put a few questions.

_District Attorney._ "Mr. Ames, as I understood you, you were given only
one sample of the lady's genuine handwriting, and you base your opinion
upon that single exhibit, is that correct?"

_Witness._ "Yes, sir, there was only one letter given me, but that was
quite a long one, and afforded me great opportunity for comparison."

_District Attorney._ "Would it not assist you if you were given a number
of her letters with which to make a comparison?"

_Witness._ "Oh, yes, the more samples I had of genuine handwriting, the
more valuable my conclusion would become."

_District Attorney_ (taking from among a bundle of papers a letter,
folding down the signature and handing it to the witness). "Would you
mind taking this one and comparing it with the others, and then tell us
if that is in the same handwriting?"

_Witness_ (examining paper closely for a few minutes). "Yes, sir, I
should say that was the same handwriting."

_District Attorney._ "Is it not a fact, sir, that the same individual
may write a variety of hands upon different occasions and with different

_Witness._ "Oh, yes, sir; they might vary somewhat."

_District Attorney_ (taking a second letter from his files, also folding
over the signature and handing to the witness). "Won't you kindly take
this letter, also, and compare it with the others you have?"

_Witness_ (examining the letter). "Yes, sir, that is a variety of the
same penmanship."

_District Attorney._ "Would you be willing to give it as your opinion
that it was written by the same person?"

_Witness._ "I certainly would, sir."

_District Attorney_ (taking a third letter from his files, again folding
over the signature, and handing to the witness). "Be good enough to take
just one more sample--I don't want to weary you--and say if this last
one is also in the lady's handwriting."

_Witness_ (appearing to examine it closely, leaving the witness-chair
and going to the window to complete his inspection). "Yes, sir, you
understand I am not swearing to a fact, only an opinion."

_District Attorney_ (good-naturedly). "Of course I understand; but is it
your honest opinion as an expert, that these three letters are all in
the same handwriting?"

_Witness._ "I say yes, it is my honest opinion."

_District Attorney._ "Now sir, won't you please turn down the edge where
I folded over the signature to the first letter I handed you, and read
aloud to the jury the signature?"

_Witness_ (unfolding the letter and reading triumphantly). "_Lila

_District Attorney._ "Please unfold the second letter and read the

_Witness_ (reading). "_William Henriques._"

_District Attorney._ "Now the third, please."

_Witness_ (hesitating and reading with much embarrassment). "_Frank

  [10] As a matter of fact, father and daughter wrote very much
  alike, and with surprising similarity to Mr. Ellison. It was
  this circumstance that led to the use of the three letters in
  the cross-examination.

The alleged compromising letters were never read to the jury.



Much depends upon the _sequence_ in which one conducts the
cross-examination of a dishonest witness. You should never hazard the
important question until you have laid the foundation for it in such a
way that, when confronted with the fact, the witness can neither deny
nor explain it. One often sees the most damaging documentary evidence,
in the form of letters or affidavits, fall absolutely flat as exponents
of falsehood, merely because of the unskilful way in which they are
handled. If you have in your possession a letter written by the witness,
in which he takes an opposite position on some part of the case to the
one he has just sworn to, avoid the common error of showing the witness
the letter for identification, and then reading it to him with the
inquiry, "What have you to say to that?" During the reading of his
letter the witness will be collecting his thoughts and getting ready his
explanations in anticipation of the question that is to follow, and the
effect of the damaging letter will be lost.

The correct method of using such a letter is to lead the witness quietly
into repeating the statements he has made in his direct testimony, and
which his letter contradicts. "I have you down as saying so and so; will
you please repeat it? I am apt to read my notes to the jury, and I want
to be accurate." The witness will repeat his statement. Then write it
down and read it off to him. "Is that correct? Is there any doubt about
it? For if you have any explanation or qualification to make, I think
you owe it to us, in justice, to make it before I leave the subject."
The witness has none. He has stated the fact; there is nothing to
qualify; the jury rather like his straightforwardness. Then let your
whole manner toward him suddenly change, and spring the letter upon him.
"Do you recognize your own handwriting, sir? Let me read you from your
own letter, in which you say,"--and afterward--"Now, what have you to
say to that?" You will make your point in such fashion that the jury
will not readily forget it. It is usually expedient, when you have once
made your point, to drop it and go to something else, lest the witness
wriggle out of it. But when you have a witness under oath, who is orally
contradicting a statement he has previously made, when not under oath,
but in his own handwriting, you then have him fast on the hook, and
there is no danger of his getting away; now is the time to press your
advantage. Put his self-contradictions to him in as many forms as you
can invent:--

"Which statement is true?" "Had you forgotten this letter when you gave
your testimony to-day?" "Did you tell your counsel about it?" "Were you
intending to deceive him?" "What was your object in trying to mislead
the jury?"[11]

  [11] In Chapter XI (_infra_) is given in detail the cross-examination
  of the witness Pigott by Sir Charles Russell, which affords a most
  striking example of the most effective use that can be made of an
  incriminating letter.

"Some men," said a London barrister who often saw Sir Charles Russell in
action, "get in a bit of the nail, and there they leave it hanging
loosely about until the judge or some one else pulls it out. But when
Russell got in a bit of the nail, he never stopped until he drove it
home. No man ever pulled _that_ nail out again."

Sometimes it is advisable to deal the witness a stinging blow with your
first few questions; this, of course, assumes that you have the material
with which to do it. The advantage of putting your best point forward at
the very start is twofold. First, the jury have been listening to his
direct testimony and have been forming their own impressions of him, and
when you rise to cross-examine, they are keen for your first questions.
If you "land one" in the first bout, it makes far more impression on
the jury than if it came later on when their attention has begun to lag,
and when it might only appear as a chance shot. The second, and perhaps
more important, effect of scoring on the witness with the first group of
questions is that it makes him afraid of you and less hostile in his
subsequent answers, not knowing when you will trip him again and give
him another fall. This will often enable you to obtain from him truthful
answers on subjects about which you are not prepared to contradict him.

I have seen the most determined witness completely lose his presence of
mind after two or three well-directed blows given at the very start of
his cross-examination, and become as docile in the examiner's hands as
if he were his own witness. This is the time to lead the witness back to
his original story and give him the opportunity to tone it down or
retint it, as it were; possibly even to switch him over until he finds
himself supporting your side of the controversy. This taming of a
hostile witness, and forcing him to tell the truth against his will, is
one of the triumphs of the cross-examiner's art. In a speech to the
jury, Choate once said of such a witness, "I brand him a vagabond and a
villain; they brought him to curse, and, behold, he hath blessed us

Some witnesses, under this style of examination, lose their tempers
completely, and if the examiner only keeps his own and puts his
questions rapidly enough, he will be sure to lead the witness into such
a web of contradictions as entirely to discredit him with any
fair-minded jury. A witness, in anger, often forgets himself and speaks
the truth. His passion benumbs his power to deceive. Still another sort
of witness displays his temper on such occasions by becoming sullen; he
begins by giving evasive answers, and ends by refusing to answer at all.
He might as well go a little farther and admit his perjury at once, so
far as the effect on the jury is concerned.

When, however, you have not the material at hand with which to frighten
the witness into correcting his perjured narrative, and yet you have
concluded that a cross-examination is necessary, never waste time by
putting questions which will enable him to repeat his original testimony
in the sequence in which he first gave it. You can accomplish nothing
with him unless you abandon the train of ideas he followed in giving his
main story. Select the weakest points of his testimony and the attendant
circumstances he would be least likely to prepare for. Do not ask your
questions in logical order, lest he invent conveniently as he goes
along; but dodge him about in his story and pin him down to precise
answers on all the accidental circumstances indirectly associated with
his main narrative. As he begins to invent his answers, put your
questions more rapidly, asking many unimportant ones to one important
one, and all in the same voice. If he is not telling the truth, and
answering from memory and associated ideas rather than from imagination,
he will never be able to invent his answers as quickly as you can frame
your questions, and at the same time correctly estimate the bearing his
present answer may have upon those that have preceded it. If you have
the requisite skill to pursue this method of questioning, you will be
sure to land him in a maze of self-contradictions from which he will
never be able to extricate himself.

Some witnesses, though unwilling to perjure themselves, are yet
determined not to tell the _whole_ truth if they can help it, owing to
some personal interest in, or relationship to, the party on whose behalf
they are called to testify. If you are instructed that such a witness
(generally a woman) is in possession of the fact you want and can help
you if she chooses, it is your duty to draw it out of her. This requires
much patience and ingenuity. If you put the direct question to her at
once, you will probably receive a "don't remember" answer, or she may
even indulge her conscience in a mental reservation and pretend a
willingness but inability to answer. You must approach the subject by
slow stages. Begin with matters remotely connected with the important
fact you are aiming at. She will relate these, not perhaps realizing on
the spur of the moment exactly where they will lead her. Having admitted
that much, you can lead her nearer and nearer by successive approaches
to the gist of the matter, until you have her in such a dilemma that she
must either tell you what she had intended to conceal or else openly
commit perjury. When she leaves the witness-chair, you can almost hear
her whisper to her friends, "I never intended to tell it, but that man
put me in such a position I simply had to tell or admit that I was

In all your cross-examinations never lose control of the witness;
confine his answers to the exact questions you ask. He will try to dodge
direct answers, or if forced to answer directly, will attempt to add a
qualification or an explanation which will rob his answer of the benefit
it might otherwise be to you. And lastly, most important of all, let me
repeat the injunction to be ever on the alert for _a good place to
stop_. Nothing can be more important than to close your examination with
a triumph. So many lawyers succeed in catching a witness in a serious
contradiction; but, not satisfied with this, go on asking questions, and
taper off their examination until the effect upon the jury of their
former advantage is lost altogether. "Stop with a victory" is one of the
maxims of cross-examination. If you have done nothing more than to
expose an attempt to deceive on the part of the witness, you have gone a
long way toward discrediting him with your jury. Jurymen are apt to
regard a witness as a whole--either they believe him or they don't. If
they distrust him, they are likely to disregard his testimony
altogether, though much of it may have been true. The fact that remains
uppermost in their minds is that he attempted to deceive them, or that
he left the witness-stand with a lie upon his lips, or after he had
displayed his ignorance to such an extent that the entire audience
laughed at him. Thereafter his evidence is dismissed from the case so
far as they are concerned.

Erskine once wasted a whole day in trying to expose to a jury the lack
of mental balance of a witness, until a physician who was assisting him
suggested that Erskine ask the witness whether he did not believe
himself to be Jesus Christ. This question was put by Erskine very
cautiously and with studied humility, accompanied by a request for
forgiveness for the indecency of the question. The witness, who was at
once taken unawares, amid breathless silence and with great solemnity
exclaimed, "I am the Christ"--which soon ended the case.[12]

  [12] "Curiosities of Law and Lawyers."



Nothing could be more absurd or a greater waste of time than to
cross-examine a witness who has testified to no material fact against
you. And yet, strange as it may seem, the courts are full of young
lawyers--and alas! not only young ones--who seem to feel it their duty
to cross-examine every witness who is sworn. They seem afraid that their
clients or the jury will suspect them of ignorance or inability to
conduct a trial. It not infrequently happens that such unnecessary
examinations result in the development of new theories of the case for
the other side; and a witness who might have been disposed of as
harmless by mere silence, develops into a formidable obstacle in the

The infinite variety of types of witnesses one meets with in court
makes it impossible to lay down any set rules applicable to all cases.
One seldom comes in contact with a witness who is in all respects like
any one he has ever examined before; it is this that constitutes the
fascination of the art. The particular method you use in any given case
depends upon the degree of importance you attach to the testimony given
by the witness, even if it is false. It may be that you have on your own
side so many witnesses who will contradict the testimony, that it is not
worth while to hazard the risks you will necessarily run by undertaking
an elaborate cross-examination. In such cases by far the better course
is to keep your seat and ask no questions at all. Much depends also, as
will be readily appreciated, upon the age and sex of the witness. In
fact, it may be said that the truly great trial lawyer is he who, while
knowing perfectly well the established rules of his art, appreciates
when they should be broken. If the witness happens to be a woman, and at
the close of her testimony-in-chief it seems that she will be more than
a match for the cross-examiner, it often works like a charm with the
jury to practise upon her what may be styled the silent
cross-examination. Rise suddenly, as if you intended to cross-examine.
The witness will turn a determined face toward you, preparatory to
demolishing you with her first answer. This is the signal for you to
hesitate a moment. Look her over good-naturedly and as if you were in
doubt whether it would be worth while to question her--and sit down. It
can be done by a good actor in such a manner as to be equivalent to
saying to the jury, "What's the use? she is only a woman."

John Philpot Curran, known as the most popular advocate of his time, and
second only to Erskine as a jury lawyer, once indulged himself in this
silent mode of cross-examination, but made the mistake of speaking his
thoughts aloud before he sat down. "There is no use asking you
questions, for I see the villain in your face." "Do you, sir?" replied
the witness with a smile. "I never knew before that my face was a

Since the sole object of cross-examination is to break the force of the
adverse testimony, it must be remembered that a futile attempt only
strengthens the witness with the jury. It cannot be too often repeated,
therefore, that saying nothing will frequently accomplish more than
hours of questioning. It is experience alone that can teach us which
method to adopt.

An amusing instance of this occurred in the trial of Alphonse Stephani,
indicted for the murder of Clinton G. Reynolds, a prominent lawyer in
New York, who had had the management and settlement of his father's
estate. The defence was insanity; but the prisoner, though evidently
suffering from the early stages of some serious brain disorder, was
still not insane in the legal acceptation of the term. He was convicted
of murder in the second degree and sentenced to a life imprisonment.

Stephani was defended by the late William F. Howe, Esq., who was
certainly one of the most successful lawyers of his time in criminal
cases. Howe was not a great lawyer, but the kind of witnesses ordinarily
met with in such cases he usually handled with a skill that was little
short of positive genius.

Dr. Allan McLane Hamilton, the eminent alienist, had made a special
study of Stephani's case, had visited him for weeks at the Tombs Prison,
and had prepared himself for a most exhaustive exposition of his mental
condition. Dr. Hamilton had been retained by Mr. Howe, and was to be put
forward by the defence as their chief witness. Upon calling him to the
witness-chair, however, he did not question his witness so as to lay
before the jury the extent of his experience in mental disorders and his
familiarity with all forms of insanity, nor develop before them the
doctor's peculiar opportunities for judging correctly of the prisoner's
present condition. The wily advocate evidently looked upon District
Attorney DeLancey Nicoll and his associates, who were opposed to him, as
a lot of inexperienced youngsters, who would cross-examine at great
length and allow the witness to make every answer tell with double
effect when elicited by the state's attorney. It has always been
supposed that it was a preconceived plan of action between the learned
doctor and the advocate. In accordance therewith, and upon the
examination-in-chief, Mr. Howe contented himself with this single

"Dr. Hamilton, you have examined the prisoner at the Bar, have you not?"

"I have, sir," replied Dr. Hamilton.

"Is he, in your opinion, sane or insane?" continued Mr. Howe.

"Insane," said Dr. Hamilton.

"You may cross-examine," thundered Howe, with one of his characteristic
gestures. There was a hurried consultation between Mr. Nicoll and his

"We have no questions," remarked Mr. Nicoll, quietly.

"What!" exclaimed Howe, "not ask the famous Dr. Hamilton a question?
Well, _I_ will," and turning to the witness began to ask him how close a
study he had made of the prisoner's symptoms, etc.; when, upon our
objection, Chief Justice Van Brunt directed the witness to leave the
witness-box, as his testimony was concluded, and ruled that inasmuch as
the direct examination had been finished, and there had been no
cross-examination, there was no course open to Mr. Howe but to call his
next witness!

Mr. Sergeant Ballantine in his autobiography, "Some Experiences of a
Barrister's Life," gives an account of the trial for murder of a young
woman of somewhat prepossessing appearance, who was charged with
poisoning her husband. "They were people in a humble class of life, and
it was suggested that she had committed the act to obtain possession of
money from a burial fund, and also that she was on terms of improper
intimacy with a young man in the neighborhood. A minute quantity of
arsenic was discovered in the body of the deceased, which in the defence
I accounted for by the suggestion that poison had been used carelessly
for the destruction of rats. Mr. Baron Parke charged the jury not
unfavorably to the prisoner, dwelling pointedly upon the small quantity
of arsenic found in the body, and the jury without much hesitation
acquitted her. Dr. Taylor, the professor of chemistry and an experienced
witness, had proved the presence of arsenic, and, as I imagine, to the
great disappointment of my solicitor, who desired a severe
cross-examination, I did not ask him a single question. He was sitting
on the bench and near the judge, who, after he had summed up and before
the verdict was pronounced, remarked to him that he was surprised at the
small amount of arsenic found; upon which Taylor said that if he had
been asked the question, he should have proved that it indicated, under
the circumstances detailed in evidence, that a very large quantity had
been taken. The professor had learned never to volunteer evidence, and
the counsel for the prosecution had omitted to put the necessary
question. Mr. Baron Parke, having learned the circumstance by accidental
means, did not feel warranted in using the information, and I had my
first lesson in the art of 'silent cross-examination.'"



The preceding chapters have been devoted to the legitimate uses of
cross-examination--the development of truth and exposure of fraud.

Cross-examination as to credit has also its legitimate use to accomplish
the same end; but this powerful weapon for good has almost equal
possibilities for evil. It is proposed in the present chapter to
demonstrate that cross-examination as to credit should be exercised with
great care and caution, and also to discuss some of the abuses of
cross-examination by attorneys, under the guise and plea of
cross-examination as to credit.

Questions which throw no light upon the real issues in the case, nor
upon the integrity or credit of the witness under examination, but which
expose misdeeds, perhaps long since repented of and lived down, are
often put for the sole purpose of causing humiliation and disgrace.
Such inquiries into private life, private affairs, or domestic
infelicities, perhaps involving innocent persons who have nothing to do
with the particular litigation and who have no opportunity for
explanation nor means of redress, form no legitimate part of the
cross-examiner's art. The lawyer who allows himself to become the
mouthpiece of the spite or revenge of his client may inflict untold
suffering and unwarranted torture. Such questions may be within the
legal rights of counsel in certain instances, but the lawyer who allows
himself to be led astray by his zeal or by the solicitations of his
client, at his elbow, ready to make any sacrifice to humiliate his
adversary, thereby debauches his profession and surrenders his
self-respect, for which an occasional verdict, won from an
impressionable jury by such methods, is a poor recompense.

To warrant an investigation into matters irrelevant to the main issues
in the case, and calculated to disgrace the witness or prejudice him in
the eyes of the jury, they must at least be such as tend to impeach his
general moral character and his credibility as a witness. There can be
no sanction for questions that tend simply to degrade the witness
personally, and which can have no possible bearing upon his veracity.

In all that has preceded we have gone upon the presumption that the
cross-examiner's art would be used to further his client's cause by all
fair and legitimate means, not by misrepresentation, insinuation, or by
knowingly putting a witness in a false light before a jury. These
methods doubtless succeed at times, but he who practises them acquires
the reputation, with astounding rapidity, of being "smart," and finds
himself discredited not only with the court, but in some almost
unaccountable way, with the very juries before whom he appears. Let him
once get the reputation of being "unfair" among the habitués of the
court-house, and his usefulness to clients as a trial lawyer is gone
forever. Honesty is the best policy quite as much with the advocate as
in any of the walks of life.

Counsel may have in his possession material for injuring the witness,
but the propriety of using it often becomes a serious question even in
cases where its use is otherwise perfectly legitimate. An outrage to the
feelings of a witness may be quickly resented by a jury, and sympathy
take the place of disgust. Then, too, one has to reckon with the judge,
and the indignation of a strong judge is not wisely provoked. Nothing
could be more unprofessional than for counsel to ask questions which
disgrace not only the witness, but a host of innocent persons, for the
mere reason that the client wishes them to be asked.

There could be no better example of the folly of yielding to a client's
hatred or desire for revenge than the outcome of the famous case in
which Mrs. Edwin Forrest was granted a divorce against her husband, the
distinguished tragedian. Mrs. Forrest, a lady of culture and refinement,
demanded her divorce upon the ground of adultery, and her husband had
made counter-charges against her. At the trial (1851) Charles O'Connor,
counsel for Mrs. Forrest, called as his first witness the husband
himself, and asked him concerning his infidelities in connection with a
certain actress. John Van Buren, who appeared for Edwin Forrest,
objected to the question on the ground that it required his client to
testify to matters that might incriminate him. The question was not
allowed, and the husband left the witness-stand. After calling a few
unimportant witnesses, O'Connor rested the case for plaintiff without
having elicited any tangible proof against the husband. Had a motion to
take the case from the jury been made at this time, it would of
necessity have been granted, and the wife's suit would have failed. It
is said that when Mr. Van Buren was about to make such a motion and end
the case, Mr. Forrest directed him to proceed with the testimony for the
defence, and develop the nauseating evidence he had accumulated against
his wife. Van Buren yielded to his client's wishes, and for days and
weeks continued to call witness after witness to the disgusting details
of Mrs. Forrest's alleged debauchery. The case attracted great public
attention and was widely reported by the newspapers. The public, as so
often happens, took the opposite view of the evidence from the one the
husband had anticipated. Its very revolting character aroused universal
sympathy on the wife's behalf. Mr. O'Connor soon found himself flooded
with offers of evidence, anonymous and otherwise, against the husband,
and when Van Buren finally closed his attack upon the wife, O'Connor was
enabled, in rebuttal, to bring such an avalanche of convincing testimony
against the defendant that the jury promptly exonerated Mrs. Forrest
and granted her the divorce. At the end of the first day's trial the
case could have been decided in favor of the husband, had a simple
motion to that effect been made; but, yielding to his client's hatred of
his wife, and after a hard-fought trial of thirty-three days, Mr. Van
Buren found both himself and his client ignominiously defeated. This
error of Mr. Van Buren's was widely commented on by the profession at
the time. He had but lately resigned his office at Albany as attorney
general, and up to the time of this trial had acquired no little
prestige in his practice in the city of New York, which, however, he
never seemed to regain after his fatal blunder in the Forrest divorce

  [13] "Extraordinary Cases," H. L. Clinton.

The abuse of cross-examination has been widely discussed in England in
recent years, partly in consequence of the cross-examination of a Mrs.
Bravo, whose husband had died by poison. He had lived unhappily with her
on account of the attentions of a certain physician. During the inquiry
into the circumstances of her husband's death, the story of the wife's
intrigue was made public through her cross-examination. Sir Charles
Russell, who was then regarded as standing at the head of the Bar, both
in the extent of his business and in his success in court, and Sir
Edward Clark, one of her Majesty's law officers, with a high reputation
for ability in jury trials, were severely criticised as "forensic
bullies," and complained of as "lending the authority of their example
to the abuse of cross-examination to credit which was quickly followed
by barristers of inferior positions, among whom the practice was
spreading of assailing witnesses with what was not unfairly called a
system of innuendoes, suggestions, and bullying from which sensitive
persons recoil." And Mr. Charles Gill, one of the many imitators of
Russell's domineering style, was criticised as "bettering the
instructions of his elders."

The complaint against Russell was that by his practices as displayed in
the Osborne case--robbery of jewels--not only may a man's, or a woman's,
whole past be laid bare to malignant comment and public curiosity, but
there is no means afforded by the courts of showing how the facts really
stood or of producing evidence to repel the damaging charges.

Lord Bramwell, in an article published originally in _Nineteenth
Century_ for February, 1892, and republished in legal periodicals all
over the world, strongly defends the methods of Sir Charles Russell and
his imitators. Lord Bramwell claimed to speak after an experience of
forty-seven years' practice at the Bar and on the bench, and long
acquaintance with the legal profession.

"A judge's sentence for a crime, however much repented of, is not the
only punishment; there is the consequent loss of character in addition,
which should confront such a person whenever called to the
witness-stand." "Women who carry on illicit intercourse, and whose
husbands die of poison, must not complain at having the veil that
ordinarily screens a woman's life from public inquiry rudely torn
aside." "It is well for the sake of truth that there should be a
wholesome dread of cross-examination." "It should not be understood to
be a trivial matter, but rather looked upon as a trying ordeal." "None
but the sore feel the probe." Such were some of the many arguments of
the various upholders of broad license in examinations to credit.

Lord Chief Justice Cockburn took the opposite view of the question. "I
deeply deplore that members of the Bar so frequently unnecessarily put
questions affecting the private life of witnesses, which are only
justifiable when they challenge the credibility of a witness. I have
watched closely the administration of justice in France, Germany,
Holland, Belgium, Italy, and a little in Spain, as well as in the United
States, in Canada, and in Ireland, and in no place have I seen witnesses
so badgered, browbeaten, and in every way so brutally maltreated as in
England. The way in which we treat our witnesses is a national disgrace
and a serious obstacle, instead of aiding the ends of justice. In
England the most honorable and conscientious men loathe the witness-box.
Men and women of all ranks shrink with terror from subjecting themselves
to the wanton insult and bullying misnamed cross-examination in our
English courts. Watch the tremor that passes the frames of many persons
as they enter the witness-box. I remember to have seen so distinguished
a man as the late Sir Benjamin Brodie shiver as he entered the
witness-box. I daresay his apprehension amounted to exquisite torture.
Witnesses are just as necessary for the administration of justice as
judges or jurymen, and are entitled to be treated with the same
consideration, and their affairs and private lives ought to be held as
sacred from the gaze of the public as those of the judges or the
jurymen. I venture to think that it is the duty of a judge to allow no
questions to be put to a witness, unless such as are clearly pertinent
to the issue before the court, except where the credibility of the
witness is deliberately challenged by counsel and that the credibility
of a witness should not be wantonly challenged on slight grounds."[14]

  [14] "Irish Law Times," 1874.

The propriety or impropriety of questions to credit is of course largely
addressed to the discretion of the court. Such questions are generally
held to be fair when, if the imputation they convey be true, the opinion
of the court would be seriously affected as to the credibility of the
witness on the matter to which he testifies; they are unfair when the
imputation refers to matters so remote in time, or of such character
that its truth would not affect the opinion of the court; or if there be
a great disproportion between the importance of the imputation and the
importance of the witness's evidence.[15]

  [15] Sir James Stephen's Evidence Act.

A judge, however, to whose discretion such questions are addressed in
the first instance, can have but an imperfect knowledge of either side
of the case before him. He cannot always be sure, without hearing all
the facts, whether the questions asked would or would not tend to
develop the truth rather than simply degrade the witness. Then, again,
the mischief is often done by the mere asking of the question, even if
the judge directs the witness not to answer. The insinuation has been
made publicly--the dirt has been thrown. The discretion must therefore
after all be largely left to the lawyer himself. He is bound in honor,
and out of respect to his profession, to consider whether the question
ought in conscience to be asked--whether in his own honest judgment it
renders the witness unworthy of belief under oath--before he allows
himself to ask it. It is much safer, for example, to proceed upon the
principle that the relations between the sexes has no bearing whatever
upon the probability of the witness telling the truth, unless in the
extreme case of an abandoned woman.

In criminal prosecutions the district attorney is usually regarded by
the jury much in the light of a judicial officer and, as such,
unprejudiced and impartial. Any slur or suggestion adverse to a
prisoner's witness coming from this source, therefore, has an added
power for evil, and is calculated to do injustice to the defendant.
There have been many flagrant abuses of this character in the criminal
courts of our own city. "Is it not a fact that you were not there at
all?" "Has all this been written out for you?" "Is it not a fact that
you and your husband have concocted this whole story?" "You have been a
witness for your husband in every lawsuit he has had, have you
not?"--were all questions that were recently criticised by the court, on
appeal, as "innuendo," and calculated to prejudice the defendant--by the
Michigan Supreme Court in the People _vs._ Cahoon--and held sufficient,
in connection with other similar errors, to set the conviction aside.

Assuming that the material with which you propose to assail the
credibility of a witness fully justifies the attack, the question then
arises, How to use this material to the best advantage? The sympathies
of juries are keen toward those obliged to confess their crimes on the
witness-stand. The same matters may be handled to the advantage or
positive disadvantage of the cross-examiner. If you hold in your
possession the evidence of the witness's conviction, for example, but
allow him to understand that you know his history, he will surely get
the better of you. Conceal it from him, and he will likely try to
conceal it from you, or lie about it if necessary. "I don't suppose you
have ever been in trouble, have you?" will bring a quick reply, "What
trouble?"--"Oh, I can't refer to any particular trouble. I mean
generally, have you ever been in jail?" The witness will believe you
know nothing about him and deny it, or if he has been many times
convicted, will admit some small offence and attempt to conceal
everything but what he suspects you know already about him. This very
attempt to deceive, if exposed, will destroy him with the jury far more
effectually than the knowledge of the offences he has committed. On the
other hand, suppose you taunt him with his crime in the first instance;
ten to one he will admit his wrong-doing in such a way as to arouse
toward himself the sympathy of the jury and their resentment toward the
lawyer who was unchristian enough to uncover to public view offences
long since forgotten.

Chief Baron Pollock once presided at a case where a witness was asked
about a conviction years gone by, though his (the witness's) honesty was
not doubted. The baron burst into tears at the answer of the witness.

In the Bellevue Hospital case (the details of which are fully described
in a subsequent chapter), and during the cross-examination of the
witness Chambers, who was confined in the Pavilion for the Insane at the
time, the writer was imprudent enough to ask the witness to explain to
the jury how he came to be confined on Ward's Island, only to receive
the pathetic reply: "I was sent there because I was insane. You see my
wife was very ill with locomotor ataxia. She had been ill a year; I was
her only nurse. I tended her day and night. We loved each other dearly.
I was greatly worried over her long illness and frightful suffering. The
result was, I worried too deeply; she had been very good to me. I
overstrained myself, my mind gave way; but I am better now, thank you."



David Paul Brown, a member of the Philadelphia Bar, has condensed his
experiences into eighteen paragraphs which he has entitled, "Golden
Rules for the Examination of Witnesses."

Although I am of the opinion that it is impossible to embody in any set
of rules the art of examination of witnesses, yet the Golden Rules of
Brown contain so many useful and valuable suggestions concerning the
art, that it is well to reprint them here for the benefit of the

_Golden Rules for the Examination of Witnesses_

First, as to your own witnesses.

I. If they are bold, and may injure your cause by pertness or
forwardness, observe a gravity and ceremony of manner toward them which
may be calculated to repress their assurance.

II. If they are alarmed or diffident, and their thoughts are evidently
scattered, commence your examination with matters of a familiar
character, remotely connected with the subject of their alarm, or the
matter in issue; as, for instance,--Where do you live? Do you know the
parties? How long have you known them? etc. And when you have restored
them to their composure, and the mind has regained its equilibrium,
proceed to the more essential features of the case, being careful to be
mild and distinct in your approaches, lest you may again trouble the
fountain from which you are to drink.

III. If the evidence of your own witnesses be unfavorable to you (which
should always be carefully guarded against), exhibit no want of
composure; for there are many minds that form opinions of the nature or
character of testimony chiefly from the effect which it may appear to
produce upon the counsel.

IV. If you perceive that the _mind_ of the witness is imbued with
prejudices against your client, hope but little from such a
quarter--unless there be some facts which are essential to your client's
protection, and which that witness alone can prove, either do not call
him, or get rid of him as soon as possible. If the opposite counsel
perceive the bias to which I have referred, he may employ it to your
ruin. In judicial inquiries, of all possible evils, the worst and the
least to be resisted is an enemy in the disguise of a friend. You cannot
impeach him; you cannot cross-examine him; you cannot disarm him; you
cannot indirectly, even, assail him; and if you exercise the only
privilege that is left to you, and call other witnesses for the purposes
of explanation, you must bear in mind that, instead of carrying the war
into the enemy's country, the struggle is still between sections of your
own forces, and in the very heart, perhaps, of your own camp. Avoid
this, by all means.

V. Never call a witness whom your adversary will be compelled to call.
This will afford you the privilege of cross-examination,--take from your
opponent the same privilege it thus gives to you,--and, in addition
thereto, not only render everything unfavorable said by the witness
doubly operative against the party calling him, but also deprive that
party of the power of counteracting the effect of the testimony.

VI. Never ask a question without an object, nor without being able to
connect that object with the case, if objected to as irrelevant.

VII. Be careful not to put your question in such a _shape_ that, if
opposed for informality, you cannot sustain it, or, at all events,
produce strong reason in its support. Frequent failures in the
discussions of points of evidence enfeeble your strength in the
estimation of the jury, and greatly impair your hopes in the final

VIII. Never object to a question from your adversary without being able
and disposed to enforce the objection. Nothing is so monstrous as to be
constantly making and withdrawing objections; it either indicates a want
of correct perception _in making them_, or a deficiency of real or of
moral courage in _not making them good_.

IX. Speak to your witness clearly and distinctly, as if you were awake
and engaged in a matter of interest, and make _him_ also speak
distinctly and to your question. How can it be supposed that the court
and jury will be inclined to listen, when the only struggle seems to be
whether the counsel or the witness shall first go to sleep?

X. Modulate your voice as circumstances may direct, "Inspire the fearful
and repress the bold."

XI. Never begin before you are _ready_, and always finish when you have
_done_. In other words, do not question for question's sake, but for an


I. Except in indifferent matters, never take your eye from that of the
witness; this is a channel of communication from mind to mind, the loss
of which nothing can compensate.

    "Truth, falsehood, hatred, anger, scorn, despair,
    And all the passions--all the soul--is there."

II. Be not regardless, either, of the _voice_ of the witness; next to
the eye this is perhaps the best interpreter of his mind. The very
design to screen conscience from crime--the mental reservation of the
witness--is often manifested in the tone or accent or emphasis of the
voice. For instance, it becoming important to know that the witness was
at the corner of Sixth and Chestnut streets at a certain time, the
question is asked, Were you at the corner of Sixth and Chestnut streets
at six o'clock? A frank witness would answer, perhaps I was near there.
But a witness who had been there, desirous to conceal the fact, and to
defeat your object, speaking to the letter rather than the spirit of the
inquiry, answers, No; although he may have been within a stone's throw
of the place, or at the very place, within ten minutes of the time. The
common answer of such a witness would be, I was not at the _corner at
six o'clock_.

Emphasis upon both words plainly implies a mental evasion or
equivocation, and gives rise with a skilful examiner to the question, At
what hour were you at the corner, or at what place were you at six
o'clock? And in nine instances out of ten it will appear, that the
witness was at the place about the time, or at the time about the place.
There is no scope for further illustrations; but be watchful, I say, of
the voice, and the principle may be easily applied.

III. Be mild with the mild; shrewd with the crafty; confiding with the
honest; merciful to the young, the frail, or the fearful; rough to the
ruffian, and a thunderbolt to the liar. But in all this, never be
unmindful of your own dignity. Bring to bear all the powers of your
mind, not that _you_ may shine, but that _virtue_ may triumph, and your
_cause_ may prosper.

IV. In a _criminal_, especially in a _capital_ case, so long as your
cause stands well, ask but few questions; and be certain never to ask
_any_ the answer to which, if against you, may destroy your client,
unless you know the witness _perfectly_ well, and know that his answer
will be favorable _equally_ well; or unless you be prepared with
testimony to destroy him, if he play traitor to the truth and your

V. An equivocal question is almost as much to be avoided and condemned
as an equivocal answer; and it always _leads_ to, or _excuses_, an
equivocal answer. Singleness of purpose, clearly expressed, is the best
trait in the examination of witnesses, whether they be honest or the
reverse. Falsehood is not detected by cunning, but by the light of
truth, or if by cunning, it is the cunning of the witness, and not of
the counsel.

VI. If the witness determine to be witty or refractory with you, you had
better settle that account with him at _first_, or its items will
increase with the examination. Let him have an opportunity of satisfying
himself either that he has mistaken _your_ power, or his _own_. But in
any result, be careful that you do not lose your temper; anger is always
either the precursor or evidence of assured defeat in every intellectual

VII. Like a skilful chess-player, in every move, fix your mind upon the
combinations and relations of the game--partial and temporary success
may otherwise end in total and remediless defeat.

VIII. Never undervalue your adversary, but stand steadily upon your
guard; a random blow may be just as fatal as though it were directed by
the most consummate skill; the negligence of one often cures, and
sometimes renders effective, the blunders of another.

IX. Be respectful to the court and to the jury; kind to your colleague;
civil to your antagonist; but never sacrifice the slightest principle of
duty to an overweening deference toward _either_.

In "The Advocate, his Training, Practice, Rights, and Duties," written
by Cox, and published in England about a half century ago, there is an
excellent chapter on cross-examination, to which the writer is indebted
for many suggestions. Cox closes his chapter with this final admonition
to the students, to whom his book is evidently addressed:--

"In concluding these remarks on cross-examination, the rarest, the most
useful, and the most difficult to be acquired of the accomplishments of
the advocate, we would again urge upon your attention the importance of
calm discretion. In addressing a jury you may sometimes talk without
having anything to say, and no harm will come of it. But in
cross-examination every question that does not advance your cause
injures it. If you have not a definite object to attain, dismiss the
witness without a word. There are no harmless questions here; the most
apparently unimportant may bring destruction or victory. If the summit
of the orator's art has been rightly defined to consist in knowing when
to sit down, that of an advocate may be described as knowing when to
keep his seat. Very little experience in our courts will teach you this
lesson, for every day will show to your observant eye instances of
self-destruction brought about by imprudent cross-examination. Fear not
that your discreet reserve may be mistaken for carelessness or want of
self-reliance. The true motive will soon be seen and approved. Your
critics are lawyers, who know well the value of discretion in an
advocate; and how indiscretion in cross-examination cannot be
compensated by any amount of ability in other duties. The attorneys are
sure to discover the prudence that governs your tongue. Even if the
wisdom of your abstinence be not apparent at the moment, it will be
recognized in the result. Your fame may be of slower growth than that of
the talker, but it will be larger and more enduring."



One of the best ways to acquire the art of cross-examination is to study
the methods of the great cross-examiners who serve as models for the
legal profession.

Indeed, nearly every great cross-examiner attributes his success to the
fact of having had the opportunity to study the art of some great
advocate in actual practice.

In view of the fact also that a keen interest is always taken in the
personality and life sketches of great cross-examiners, it has seemed
fitting to introduce some brief sketches of great cross-examiners, and
to give some illustrations of their methods.

Sir Charles Russell, Lord Russell of Killowen, who died in February,
1901, while he was Lord Chief Justice of England, was altogether the
most successful cross-examiner of modern times. Lord Coleridge said of
him while he was still practising at the bar, and on one side or the
other in nearly every important case tried, "Russell is the biggest
advocate of the century."

It has been said that his success in cross-examination, like his success
in everything, was due to his force of character. It was his striking
personality, added to his skill and adroitness, which seemed to give
him his overwhelming influence over the witnesses whom he
cross-examined. Russell is said to have had a wonderful faculty for
using the brain and knowledge of other men. Others might possess a
knowledge of the subject far in excess of Russell, but he had the
reputation of being able to make that knowledge valuable and use it in
his examination of a witness in a way altogether unexpected and unique.

Unlike Rufus Choate, "The Ruler of the Twelve," and by far the greatest
advocate of the century on this side of the water, Russell read but
little. He belonged to the category of famous men who "neither found nor
pretended to find any real solace in books." With Choate, his library of
some eight thousand volumes was his home, and "his authors were the
loves of his life." Choate used to read at his meals and while walking
in the streets, for books were his only pastime. Neither was Russell a
great orator, while Choate was ranked as "the first orator of his time
in any quarter of the globe where the English language was spoken, or
who was ever seen standing before a jury panel."

Both Russell and Choate were consummate actors; they were both men of
genius in their advocacy. Each knew the precise points upon which to
seize; each watched every turn of the jury, knew at a glance what was
telling with them, knew how to use to the best advantage every accident
that might arise in the progress of the case.

"One day a junior was taking a note in the orthodox fashion. Russell was
taking no note, but he was thoroughly on the alert, glancing about the
court, sometimes at the judge, sometimes at the jury, sometimes at the
witness or the counsel on the other side. Suddenly he turned to the
junior and said, 'What are you doing?' 'Taking a note,' was the answer.
'What the devil do you mean by saying you are taking a note? Why don't
you watch the case?' he burst out. _He_ had been 'watching' the case.
Something had happened to make a change of front necessary, and he
wheeled his colleagues around almost before they had time to grasp the
new situation."[16]

  [16] "Life of Lord Russell," Barry O'Brien.

Russell's maxim for cross-examination was, "Go straight at the witness
and at the point; throw your cards on the table, mere _finesse_ English
juries do not appreciate."

Speaking of Russell's success as a cross-examiner, his biographer, Barry
O'Brien says: "It was a fine sight to see him rise to cross-examine. His
very appearance must have been a shock to the witness,--the manly,
defiant bearing, the noble brow, the haughty look, the remorseless
mouth, those deep-set eyes, widely opened, and that searching glance
which pierced the very soul. 'Russell,' said a member of the Northern
Circuit, 'produced the same effect on a witness that a cobra produces on
a rabbit.' In a certain case he appeared on the wrong side. Thirty-two
witnesses were called, thirty-one on the wrong side, and one on the
right side. Not one of the thirty-one was broken down in
cross-examination; but the one on the right side was utterly annihilated
by Russell.

"'How is Russell getting on?' a friend asked one of the judges of the
Parnell Commission during the days of Pigott's cross-examination.
'Master Charlie is bowling very straight,' was the answer. 'Master
Charlie' always bowled 'very straight,' and the man at the wicket
generally came quickly to grief. I have myself seen him approach a
witness with great gentleness--the gentleness of a lion reconnoitring
his prey. I have also seen him fly at a witness with the fierceness of a
tiger. But, gentle or fierce, he must have always looked a very ugly
object to the man who had gone into the box to lie."

Rufus Choate had little of Russell's natural force with which to command
his witnesses; his effort was to magnetize, he was called "the wizard of
the court room." He employed an entirely different method in his
cross-examinations. He never assaulted a witness as if determined to
browbeat him. "Commenting once on the cross-examination of a certain
eminent counsellor at the Boston Bar with decided disapprobation, Choate
said, 'This man goes at a witness in such a way that he inevitably gets
the jury all on the side of the witness. I do not,' he added, 'think
that is a good plan.' His own plan was far more wary, intelligent, and
circumspect. He had a profound knowledge of human nature, of the springs
of human action, of the thoughts of human hearts. To get at these and
make them patent to the jury, he would ask only a few telling
questions--a very few questions, but generally every one of them was
fired point-blank, and hit the mark. His motto was: 'Never cross-examine
any more than is absolutely necessary. If you don't break your witness,
he breaks you.' He treated every man who appeared like a fair and honest
person on the stand, as if upon the presumption that he was a gentleman;
and if a man appeared badly, he demolished him, but with the air of a
surgeon performing a disagreeable amputation--as if he was profoundly
sorry for the necessity. Few men, good or bad, ever cherished any
resentment against Choate for his cross-examination of them. His whole
style of address to the occupants of the witness-stand was soothing,
kind, and reassuring. When he came down heavily to crush a witness, it
was with a calm, resolute decision, but no asperity--nothing curt,
nothing tart."[17]

  [17] "Reminiscences of Rufus Choate," Parker.

Choate's idea of the proper length of an address to a jury was that "a
speaker makes his impression, if he ever makes it, in the first _hour_,
sometimes in the first fifteen minutes; for if he has a proper and firm
grasp of his case, he then puts forth the outline of his grounds of
argument. He plays the _overture_, which hints at or announces all the
airs of the coming opera. All the rest is mere filling up: answering
objections, giving one juryman little arguments with which to answer the
objections of his fellows, etc. Indeed, this may be taken as a fixed
rule, that the popular mind can never be vigorously addressed, deeply
moved, and stirred and fixed more than _one hour_ in any single

What Choate was to America, and Erskine, and later Russell, to England,
John Philpot Curran was to Ireland. He ranked as a jury lawyer next to
Erskine. The son of a peasant, he became Master of Rolls for Ireland in
1806. He had a small, slim body, a stuttering, harsh, shrill voice,
originally of such a diffident nature that in the midst of his first
case he became speechless and dropped his brief to the floor, and yet by
perseverance and experience he became one of the most eloquent and
powerful forensic advocates of the world. As a cross-examiner it was
said of Curran that "he could unravel the most ingenious web which
perjury ever spun, he could seize on every fault and inconsistency, and
build on them a denunciation terrible in its earnestness."[18]

  [18] "Life Sketches of Eminent Lawyers," Gilbert J. Clark.

It was said of Scarlett, Lord Abinger, that he won his cases because
there were twelve Sir James Scarletts in the jury-box. He became one of
the leading jury lawyers of his time, so far as winning verdicts was
concerned. Scarlett used to wheedle the juries over the weak places in
his case. Choate would rush them right over with that enthusiasm which
he put into everything, "with fire in his eye and fury on his tongue."
Scarlett would level himself right down to each juryman, while he
flattered and won them. In his cross-examinations "he would take those
he had to examine, as it were by the hand, made them his friends,
entered into familiar conversation with them, encouraged them to tell
him what would best answer his purpose, and thus secured a victory
without appearing to commence a conflict."

A story is told about Scarlett by Justice Wightman who was leaving his
court one day and found himself walking in a crowd alongside a
countryman, whom he had seen, day by day, serving as a juryman, and to
whom he could not help speaking. Liking the look of the man, and finding
that this was the first occasion on which he had been at the court,
Judge Wightman asked him what he thought of the leading counsel. "Well,"
said the countryman, "that lawyer Brougham be a wonderful man, he can
talk, he can, but I don't think nowt of Lawyer Scarlett."--"Indeed!"
exclaimed the judge, "you surprise me, for you have given him all the
verdicts."--"Oh, there's nowt in that," was the reply, "he be so lucky,
you see, he be always on the right side."[19]

  [19] "Curiosities of Law and Lawyers."

Choate also had a way of getting himself "into the jury-box," and has
been known to address a single juryman, who he feared was against him,
for an hour at a time. After he had piled up proof and persuasion all
together, one of his favorite expressions was, "But this is only _half_
my case, gentlemen, I go now to the main body of my proofs."

Like Scarlett, Erskine was of medium height and slender, but he was
handsome and magnetic, quick and nervous, "his motions resembled those
of a blood horse--as light, as limber, as much betokening strength and
speed." He, too, lacked the advantage of a college education and was at
first painfully unready of speech. In his maiden effort he would have
abandoned his case, had he not felt, as he said, that his children were
tugging at his gown. "In later years," Choate once said of him, "he
spoke the best English ever spoken by an advocate." Once, when the
presiding judge threatened to commit him for contempt, he replied, "Your
Lordship may proceed in what manner you think fit; I know my duty as
well as your Lordship knows yours." His simple grace of diction, quiet
and natural passion, was in marked contrast to Rufus Choate, whose
delivery has been described as "a musical flow of rhythm and cadence,
more like a long, rising, and swelling song than a _talk_ or an
argument." To one of his clients who was dissatisfied with Erskine's
efforts in his behalf, and who had written his counsellor on a slip of
paper, "I'll be hanged if I don't plead my own cause," Erskine quietly
replied, "You'll be hanged if you do." Erskine boasted that in twenty
years he had never been kept a day from court by ill health. And it is
said of Curran that he has been known to rise before a jury, after a
session of sixteen hours with only twenty minutes' intermission, and
make one of the most memorable arguments of his life.

Among the more modern advocates of the English Bar, Sir Henry Hawkins
stands out conspicuously. He is reputed to have taken more money away
with him from the Bar than any man of his generation. His leading
characteristic when at the Bar, was his marvellous skill in
cross-examination. He was associated with Lord Coleridge in the first
Tichborne trial, and in his cross-examination of the witnesses, Baignet
and Carter, he made his reputation as "the foremost cross-examiner in
the world."[20] Sir Richard Webster was another great cross-examiner. He
is said to have received $100,000 for his services in the trial before
the Parnell Special Commission, in which he was opposed to Sir Charles

  [20] "Life Sketches of Eminent Lawyers," Clark.

Rufus Choate said of Daniel Webster, that he considered him the grandest
lawyer in the world. And on his death-bed Webster called Choate the most
brilliant man in America. Parker relates an episode characteristic of
the clashing of swords between these two idols of the American Bar. "We
heard Webster once, in a sentence and a look, crush an hour's argument
of Choate's curious workmanship; it was most intellectually wire-drawn
and hair-splitting, with Grecian sophistry, and a subtlety the Leontine
Gorgias might have envied. It was about two car-wheels, which to common
eyes looked as like as two eggs; but Mr. Choate, by a fine line of
argument between tweedle-dum and tweedle-dee, and a discourse on 'the
fixation of points' so deep and fine as to lose itself in obscurity,
showed the jury there was a heaven-wide difference between them. 'But,'
said Mr. Webster, and his great eyes opened wide and black, as he stared
at the big twin wheels before him, 'gentlemen of the jury, there they
are--look at 'em;' and as he pronounced this answer, in tones of vast
volume, the distorted wheels seemed to shrink back again into their
original similarity, and the long argument on the 'fixation of points'
died a natural death. It was an example of the ascendency of mere
_character_ over mere _intellectuality_; but so much greater,
nevertheless, the _intellectuality_."[21]

  [21] "Reminiscences of Rufus Choate," Parker.

Jeremiah Mason was quite on a par with either Choate or Webster before a
jury. His style was conversational and plain. He was no orator. He would
go close up to the jury-box, and in the plainest possible logic force
conviction upon his hearers. Webster said he "owed his own success to
the close attention he was compelled to pay for nine successive years,
day by day, to Mason's efforts at the same Bar." As a cross-examiner he
had no peer at the New England Bar.

In the history of our own New York Bar there have been, probably, but
few equals of Judge William Fullerton as a cross-examiner. He was famous
for his calmness and mildness of manner, his rapidly repeated questions;
his sallies of wit interwoven with his questions, and an ingenuity of
method quite his own.

Fullerton's cross-examinations in the celebrated Tilton _vs._ Henry Ward
Beecher case gave him an international reputation, and were considered
the best ever heard in this country. And yet these very examinations,
laborious and brilliant, were singularly unproductive of results, owing
probably to the unusual intelligence and shrewdness of the witnesses
themselves. The trial as a whole was by far the most celebrated of its
kind the New York courts have ever witnessed. One of the most eminent of
Christian preachers was charged with using the persuasive powers of his
eloquence, strengthened by his religious influence, to alienate the
affections and destroy the probity of a member of his church--a devout
and theretofore pure-souled woman, the wife of a long-loved friend. He
was charged with continuing the guilty relation during the period of a
year and a half, and of cloaking the offence to his own conscience and
to hers under specious words of piety; of invoking first divine blessing
on it, and then divine guidance out of it; and finally of adding perjury
to seduction in order to escape the consequences. His accusers,
moreover, Mr. Tilton and Mr. Moulton, were persons of public reputation
and honorable station in life.

The length and complexity of Fullerton's cross-examinations preclude any
minute mention of them here. Once when he found fault with Mr. Beecher
for not answering his questions more freely and directly, the reply was
frankly made, "_I am afraid of you!_"

While cross-examining Beecher about the celebrated "ragged letter,"
Fullerton asked why he had not made an explanation to the church, if he
was innocent. Beecher answered that he was keeping his part of the
compact of silence, and added that he did not believe the others were
keeping theirs. There was audible laughter throughout the court room at
this remark, and Judge Neilson ordered the court officer to remove from
the court room any person found offending--"Except the counsel," spoke
up Mr. Fullerton. Later the cross-examiner exclaimed impatiently to Mr.
Beecher that he was bound to find out all about these things before he
got through, to which Beecher retorted, "I don't think you are
succeeding very well."

_Mr. Fullerton_ (in a voice like thunder). "Why did you not rise up and
deny the charge?"

_Mr. Beecher_ (putting into his voice all that marvellous magnetic
force, which so distinguished him from other men of his time). "Mr.
Fullerton, that is not my habit of mind, nor my manner of dealing with
men and things."

_Mr. Fullerton._ "So I observe. You say that Theodore Tilton's charge of
intimacy with his wife, and the charges made by your church and by the
committee of your church, made no impression on you?"

_Mr. Beecher_ (shortly). "Not the slightest."

At this juncture Mr. Thomas G. Sherman, Beecher's personal counsel,
jumped to his client's aid, and remarked that it was a singular
coincidence that when counsel had not the record before him, he never
quoted correctly.

_Mr. Fullerton_ (addressing the court impressively). "When Mr. Sherman
is not impertinent, he is nothing in this case."

_Judge Neilson_ (to the rescue). "Probably counsel thought--"

_Mr. Fullerton_ (interrupting). "What Mr. Sherman _thinks_, your Honor,
cannot possibly be of sufficient importance to take up the time either
of the court or opposing counsel."

"Are you in the habit of having your sermons published?" continued Mr.
Fullerton. Mr. Beecher acknowledged that he was, and also that he had
preached a sermon on "The Nobility of Confession."

_Mr. Sherman_ (sarcastically). "I hope Mr. Fullerton is not going to
preach _us_ a sermon."

_Mr. Fullerton._ "I would do so if I thought I could convert brother

_Mr. Beecher_ (quietly). "I will be happy to give you the use of my

_Mr. Fullerton_ (laughing). "Brother Sherman is the only audience I
shall want."

_Mr. Beecher_ (sarcastically). "Perhaps he is the only audience you can

_Mr. Fullerton._ "If I succeed in converting brother Sherman, I will
consider my work as a Christian minister complete."

Mr. Fullerton then read a passage from the sermon, the effect of which
was that if a person commits a great sin, and the exposure of it would
cause misery, such a person would not be justified in confessing it,
merely to relieve his own conscience. Mr. Beecher admitted that he still
considered that "sound doctrine."

At this point Mr. Fullerton turned to the court, and pointing to the
clock, said, "Nothing comes after the sermon, I believe, but the
benediction." His Honor took the hint, and the proceedings

  [22] Extracts from the daily press accounts of the proceedings
  of one of the thirty days of the trial, as reported in "Modern
  Jury Trials," Donovan.

In this same trial Hon. William M. Evarts, as leading counsel for Mr.
Beecher, heightened his already international reputation as an advocate.
It was Mr. Evarts's versatility in the Beecher case that occasioned so
much comment. Whether he was examining in chief or on cross, in the
discussion of points of evidence, or in the summing up, he displayed
equally his masterly talents. His cross-examination of Theodore Tilton
was a masterpiece. His speeches in court were clear, calm, and logical.
Mr. Evarts was not only a great lawyer, but an orator and statesman of
the highest distinction. He has been called "the Prince of the American
Bar." He was a gentleman of high scholarship and fine literary tastes.
His manner in the trial of a case has been described by some one as "all
head, nose, voice, and forefinger." He was five feet seven inches tall,
thin and slender, "with a face like parchment."

Mr. Joseph H. Choate once told me he considered that he owed his own
success in court to the nine years during which he acted as Mr. Evarts's
junior in the trial of cases. No one but Mr. Choate himself would have
said this. His transcendent genius as an advocate could not have been
acquired from any tutelage under Mr. Evarts. When Mr. Choate accepted
his appointment as Ambassador to the Court of St. James, he retired from
the practice of the law; and it is therefore permissible to comment upon
his marvellous talents as a jury lawyer. He was not only easily the
leading trial lawyer of the New York Bar, but was by many thought to be
the representative lawyer of the American Bar. Surely no man of his time
was more successful in winning juries. His career was one uninterrupted
success. Not that he shone especially in any particular one of the
duties of the trial lawyer, but he was preëminent in the quality of his
humor and keenness of satire. His whole conduct of a case, his treatment
of witnesses, of the court, of opposing counsel, and especially of the
jury, were so irresistibly fascinating and winning that he carried
everything before him. One would emerge from a three weeks' contest with
Choate in a state almost of mental exhilaration, despite the jury's

It was not so with the late Edward C. James; a contest with him meant
great mental and physical fatigue for his opponent. James was ponderous
and indefatigable. His cross-examinations were labored in the extreme.
His manner as an examiner was dignified and forceful, his mind always
alert and centred on the subject before him; but he had none of Mr.
Choate's fascination or brilliancy. He was dogged, determined, heavy. He
would pound at you incessantly, but seldom reached the mark. He
literally wore out his opponent, and could never realize that he was on
the wrong side of a case until the foreman of the jury told him so. Even
then he would want the jury polled to see if there was not some mistake.
James never smiled except in triumph and when his opponent frowned. When
Mr. Choate smiled, you couldn't help smiling with him. During the last
ten years of his life James was found on one side or the other of most
of the important cases that were tried. He owed his success to his
industrious and indefatigable qualities as a fighter; not, I think, to
his art.

James T. Brady was called "the Curran of the New York Bar." His success
was almost entirely due to his courtesy and the marvellous skill of his
cross-examinations. He had a serene, captivating manner in court, and
was one of the foremost orators of his time. He has the proud record of
having defended fifty men on trial for their lives, and of saving every
one of them from the gallows.

On the other hand, William A. Beech, "the Hamlet of the American Bar,"
was a poor cross-examiner. He treated all his witnesses alike. He was
methodical, but of a domineering manner. He was slow to attune himself
to an unexpected turn in a case he might be conducting. He lost many
cases and was not fitted to conduct a desperate one. It was as a court
orator that he was preëminent. His speech in the Beecher case alone
would have made him a reputation as a consummate orator. His vocabulary
was surprisingly rich and his voice wonderfully winning.

It is said of James W. Gerard, the elder, that "he obtained the greatest
number of verdicts against evidence of any one who ever practised at the
New York Bar. He was full of expedients and possessed extraordinary
tact. In his profound knowledge of human nature and his ready
adaptation, in the conduct of trials, to the peculiarities, caprices,
and whims of the different juries before whom he appeared he was almost
without a rival.... Any one who witnessed the telling hits made by Mr.
Gerard on cross-examination, and the sensational incidents sprung by him
upon his opponents, the court, and the jury, would have thought that he
acted upon the inspiration of the moment--that all he did and all he
said was _impromptu_. In fact, Mr. Gerard made thorough preparation for
trial. Generally his hits in cross-examination were the result of
previous preparation. He made briefs for cross-examination. To a large
extent his flashes of wit and his extraordinary and grotesque humor were
well pondered over and studied up beforehand."[23]

  [23] "Extraordinary Cases," Henry Lauran Clinton.

Justice Miller said of Roscoe Conkling that "he was one of the greatest
men intellectually of his time." He was more than fifty years of age
when he abandoned his arduous public service at Washington, and opened
an office in New York City. During his six years at the New York Bar,
such was his success, that he is reputed to have accumulated, for a
lawyer, a very large fortune. He constituted himself a barrister and
adopted the plan of acting only as counsel. He was fluent and eloquent
of speech, most thorough in the preparation of his cases, and an
accomplished cross-examiner. Despite his public career, he said of
himself, "My proper place is to be before twelve men in the box."
Conkling used to study for his cross-examinations, in important cases,
with the most painstaking minuteness. In the trial of the Rev. Henry
Burge for murder, Conkling saw that the case was likely to turn upon the
cross-examination of Dr. Swinburne, who had performed the autopsy. The
charge of the prosecution was that Mrs. Burge had been strangled by her
husband, who had then cut her throat. In order to disprove this on
cross-examination, Mr. Conkling procured a body for dissection and had
dissected, in his presence, the parts of the body that he wished to
study. As the result of Dr. Swinburne's cross-examination at the trial,
the presiding judge felt compelled to declare the evidence so entirely
untrustworthy that he would decline to submit it to the jury and
directed that the prisoner be set at liberty.

This studious preparation for cross-examination was one of the secrets
of the success of Benjamin F. Butler. He was once known to have spent
days in examining all parts of a steam-engine, and even learning to
drive one himself, in order to cross-examine some witnesses in an
important case in which he had been retained. At another time Butler
spent a week in the repair shop of a railroad, part of the time with
coat off and hammer in hand, ascertaining the capabilities of iron to
resist pressure--a point on which his case turned. To use his own
language: "A lawyer who sits in his office and prepares his cases only
by the statements of those who are brought to him, will be very likely
to be beaten. A lawyer in full practice, who carefully prepares his
cases, must study almost every variety of business and many of the
sciences." A pleasant humor and a lively wit, coupled with wonderful
thoroughness and acuteness, were Butler's leading characteristics. He
was not a great lawyer, nor even a great advocate like Rufus Choate, and
yet he would frequently defeat Choate. His cross-examination was his
chief weapon. Here he was fertile in resource and stratagem to a degree
attained by few others. Choate had mastered all the little tricks of the
trial lawyer, but he attained also to the grander thoughts and the
logical powers of the really great advocate. Butler's success depended
upon zeal, combined with shrewdness and not overconscientious trickery.

In his autobiography, Butler gives several examples of what he was
pleased to call his legerdemain, and to believe were illustrations of
his skill as a cross-examiner. They are quoted from "Butler's Book," but
are not reprinted as illustrations of the subtler forms of
cross-examination, but rather as indicative of the tricks to which
Butler owed much of his success before country juries.

"When I was quite a young man I was called upon to defend a man for
homicide. He and his associate had been engaged in a quarrel which
proceeded to blows and at last to stones. My client, with a sharp stone,
struck the deceased in the head on that part usually called the temple.
The man went and sat down on the curbstone, the blood streaming from his
face, and shortly afterward fell over dead.

"The theory of the government was that he died from the wound in the
temporal artery. My theory was that the man died of apoplexy, and that
if he had bled more from the temporal artery, he might have been
saved--a wide enough difference in the theories of the cause of death.

"Of course to be enabled to carry out my proposition I must know all
about the temporal artery,--its location, its functions, its
capabilities to allow the blood to pass through it, and in how short a
time a man could bleed to death through the temporal artery; also, how
far excitement in a body stirred almost to frenzy in an embittered
conflict, and largely under the influence of liquor on a hot day, would
tend to produce apoplexy. I was relieved on these two points in my
subject, but relied wholly upon the testimony of a surgeon that the man
bled to death from the cut on the temporal artery from a stone in the
hand of my client. That surgeon was one of those whom we sometimes see
on the stand, who think that what they don't know on the subject of
their profession is not worth knowing. He testified positively and
distinctly that there was and could be no other cause for death except
the bleeding from the temporal artery, and he described the action of
the bleeding and the amount of blood discharged.

"Upon all these questions I had thoroughly prepared myself.

"_Mr. Butler._ 'Doctor, you have talked a great deal about the temporal
artery; now will you please describe it and its functions? I suppose the
temporal artery is so called because it supplies the flesh on the
outside of the skull, especially that part we call the temples, with

"_Witness._ 'Yes; that is so.'

"_Mr. Butler._ 'Very well. Where does the temporal artery take its rise
in the system? Is it at the heart?'

"_Witness._ 'No, the aorta is the only artery leaving the heart which
carries blood toward the head. Branches from it carry the blood up
through the opening into the skull at the neck, and the temporal artery
branches from one of these.'

"_Mr. Butler._ 'Doctor, where does it branch off from it? On the inside
or the outside of the skull?'

"_Witness._ 'On the inside.'

"_Mr. Butler._ 'Does it have anything to do inside with supplying the

"_Witness._ 'No.'

"_Mr. Butler._ 'Well, doctor, how does it get outside to supply the head
and temples?'

"_Witness._ 'Oh, it passes out through its appropriate opening in the

"_Mr. Butler._ 'Is that through the eyes?'

"_Witness._ 'No.'

"_Mr. Butler._ 'The ears?'

"_Witness._ 'No.'

"_Mr. Butler._ 'It would be inconvenient to go through the mouth, would
it not, doctor?'

"Here I produced from my green bag a skull. 'I cannot find any opening
on this skull which I think is appropriate to the temporal artery. Will
you please point out the appropriate opening through which the temporal
artery passes from the inside to the outside of the skull?'

"He was utterly unable so to do.

"_Mr. Butler._ 'Doctor, I don't think I will trouble you any further;
you can step down.' He did so, and my client's life was saved on that

"The temporal artery doesn't go inside the skull at all.

"I had a young client who was on a railroad car when it was derailed by
a broken switch. The car ran at considerable speed over the cross-ties
for some distance, and my client was thrown up and down with great
violence on his seat. After the accident, when he recovered from the
bruising, it was found that his nervous system had been wholly
shattered, and that he could not control his nerves in the slightest
degree by any act of his will. When the case came to trial, the
production of the pin by which the position of the switch was
controlled, two-thirds worn away and broken off, settled the liability
of the road for any damages that occurred from that cause, and the case
resolved itself into a question of the amount of damages only. My claim
was that my client's condition was an incurable one, arising from the
injury to the spinal cord. The claim put forward on behalf of the
railroad was that it was simply nervousness, which probably would
disappear in a short time. The surgeon who appeared for the road claimed
the privilege of examining my client personally before he should
testify. I did not care to object to that, and the doctor who was my
witness and the railroad surgeon went into the consultation room
together and had a full examination in which I took no part, having
looked into that matter before.

"After some substantially immaterial matters on the part of the defence,
the surgeon was called and was qualified as a witness. He testified that
he was a man of great position in his profession. Of course in that I
was not interested, for I knew he could qualify himself as an expert.
In his direct examination he spent a good deal of the time in giving a
very learned and somewhat technical description of the condition of my
client. He admitted that my client's nervous system was very much
shattered, but he also stated that it would probably be only temporary.
Of all this I took little notice; for, to tell the truth, I had been up
quite late the night before and in the warm court room felt a little
sleepy. But the counsel for the road put this question to him:--

"'Doctor, to what do you attribute this condition of the plaintiff which
you describe?'

"'Hysteria, sir; he is hysterical.'

"That waked me up. I said, 'Doctor, did I understand--I was not paying
proper attention--to what did you attribute this nervous condition of my

"'Hysteria, sir.'

"I subsided, and the examination went on until it came my turn to

"_Mr. Butler._ 'Do I understand that you think this condition of my
client wholly hysterical?'

"_Witness._ 'Yes, sir; undoubtedly.'

"_Mr. Butler._ 'And therefore won't last long?'

"_Witness._ 'No, sir; not likely to.'

"_Mr. Butler._ 'Well, doctor, let us see; is not the disease called
hysteria and its effects hysterics; and isn't it true that hysteria,
hysterics, hysterical, all come from the Greek word ὑστέρα?'

"_Witness._ 'It may be.'

"_Mr. Butler._ 'Don't say it may, doctor; isn't it? Isn't an exact
translation of the Greek word ὑστέρα the English word "womb"?'

"_Witness._ 'You are right, sir.'

"_Mr. Butler._ 'Well, doctor, this morning when you examined this young
man here,' pointing to my client, 'did you find that he had a womb? I
was not aware of it before, but I will have him examined over again and
see if I can find it. That is all, doctor; you may step down.'"

Robert Ingersoll took part in numerous noted lawsuits in all parts of
the country. But he was almost helpless in court without a competent
junior. He was a born orator if ever there was one. Henry Ward Beecher
regarded him as "the most brilliant speaker of the English tongue in any
land on the globe." He was not a profound lawyer, however, and hardly
the equal of the most mediocre trial lawyer in the examination of
witnesses. Of the art of cross-examining witnesses he knew practically
nothing. His definition of a lawyer, to use his own words, was "a sort
of intellectual strumpet." "My ideal of a great lawyer," he once wrote,
"is that great English attorney who accumulated a fortune of a million
pounds, and left it all in his will to make a home for idiots, declaring
that he wanted to give it back to the people from whom he took it."

Judge Walter H. Sanborn relates a conversation he had with Judge Miller
of the United States Court about Ingersoll. "Just after Colonel
Ingersoll had concluded an argument before Mr. Justice Miller, while on
Circuit I came into the court and remarked to Judge Miller that I wished
I had got there a little sooner, as I had never heard Colonel Ingersoll
make a legal argument."--"Well," said Judge Miller, "you never

  [24] "Life Sketches of Eminent Lawyers," Gilbert J. Clark.

Ingersoll's genius lay in other directions. Who but Ingersoll could have
written the following:--

"A little while ago I stood by the grave of the old Napoleon--a
magnificent tomb of gilt and gold, fit almost for a dead deity, and
gazed upon the sarcophagus of black marble, where rest at last the ashes
of that restless man. I leaned over the balustrade, and thought about
the career of the greatest soldier of the modern world. I saw him
walking upon the banks of the Seine, contemplating suicide; I saw him at
Toulon; I saw him putting down the mob in the streets of Paris; I saw
him at the head of the army in Italy; I saw him crossing the bridge of
Lodi, with the tricolor in his hand; I saw him in Egypt, in the shadows
of the Pyramids; I saw him conquer the Alps, and mingle the eagles of
France with the eagles of the crags; I saw him at Marengo, at Ulm, and
at Austerlitz; I saw him in Russia, where the infantry of the snow and
the cavalry of the wild blast scattered his legions like winter's
withered leaves. I saw him at Leipsic, in defeat and disaster; driven by
a million bayonets back upon Paris; clutched like a wild beast;
banished to Elba. I saw him escape and retake an empire by the force of
his genius. I saw him upon the frightful field of Waterloo, where chance
and fate combined to wreck the fortunes of their former king. And I saw
him at St. Helena, with his hands crossed behind him, gazing out upon
the sad and solemn sea. I thought of the orphans and widows he had made,
of the tears that had been shed for his glory, and of the only woman who
had ever loved him, pushed from his heart by the cold hand of ambition.
And I said I would rather have been a French peasant, and worn wooden
shoes; I would rather have lived in a hut, with a vine growing over the
door, and the grapes growing purple in the kisses of the autumn sun. I
would rather have been that poor peasant, with my loving wife by my
side, knitting as the day died out of the sky, with my children upon my
knees, and their arms about me. I would rather have been that man, and
gone down to the tongueless silence of the dreamless dust, than to have
been that imperial impersonation of force and murder, known as Napoleon
the Great."



The modern method of studying any subject, or acquiring any art, is the
inductive method. This is illustrated in our law schools, where to a
large extent actual cases are studied, to get at the principles of law
instead of acquiring those principles solely through the _a priori_
method of the study of text-books.

As already indicated, this method is also the only way to become a
master of the art of cross-examination, and, in addition to actual
personal experience, it is important to study the methods of great
cross-examiners, or those whose extended experience makes them safe
guides to follow.

Hence, the writer believes it would be decidedly helpful to the students
of the art of cross-examination to have placed before them, in a
convenient and somewhat condensed form, some good illustrations of the
methods of well-known cross-examiners as exhibited in actual practice,
in the cross-examination of important witnesses in famous trials.

For these reasons, and the further fact that such examples are
interesting as a study of human nature, I have in the following pages
introduced the cross-examination of some important witnesses in several
well-known cases.

Probably one of the most dramatic and successful of the more
celebrated cross-examinations in the history of the English courts is
Russell's cross-examination of Pigott--the chief witness in the
investigation growing out of the attack upon Charles S. Parnell and
sixty-five Irish members of Parliament, by name, for belonging to a
lawless and even murderous organization, whose aim was the overthrow of
English rule.

The principal charge against Parnell, and the only one that interests us
in the cross-examination of the witness Pigott, was the writing of a
letter by Parnell which the _Times_ claimed to have obtained and
published in facsimile, in which he excused the murderer of Lord
Frederick Cavendish, Chief Secretary for Ireland, and of Mr. Burke,
Under Secretary, in Phoenix Park, Dublin, on May 6, 1882. One particular
sentence in the letter read, "I cannot refuse to admit that Burke got no
more than his deserts."

The publication of this letter naturally made a great stir in Parliament
and in the country at large. Parnell stated in the House of Commons that
the letter was a forgery, and later asked for the appointment of a
select committee to inquire whether the facsimile letter was a forgery.
The Government refused this request, but appointed a special committee,
composed of three judges, to investigate all the charges made by the

The writer is indebted again to Russell's biographer, Mr. O'Brien, for
the details of this celebrated case. Seldom has any legal controversy
been so graphically described as this one. One seems to be living with
Russell, and indeed with Mr. O'Brien himself, throughout those eventful
months. We must content ourselves, however, with a reproduction of the
cross-examination of Pigott as it comes from the stenographer's minutes
of the trial, enlightened by the pen of Russell's facile biographer.

Mr. O'Brien speaks of it as "the event in the life of Russell--the
defence of Parnell." In order to undertake this defence, Russell
returned to the _Times_ the retainer he had enjoyed from them for many
previous years. It was known that the _Times_ had bought the letter from
Mr. Houston, the secretary of the Irish Loyal and Patriotic Union, and
that Mr. Houston had bought it from Pigott. But how did Pigott come by
it? That was the question of the hour, and people looked forward to the
day when Pigott should go into the box to tell his story, and when Sir
Charles Russell should rise to cross-examine him. Mr. O'Brien writes:
"Pigott's evidence in chief, so far as the letter was concerned, came
practically to this: he had been employed by the Irish Loyal and
Patriotic Union to hunt up documents which might incriminate Parnell,
and he had bought the facsimile letter, with other letters, in Paris
from an agent of the Clan-na-Gael, who had no objection to injuring
Parnell for a valuable consideration....

"During the whole week or more Russell had looked pale, worn, anxious,
nervous, distressed. He was impatient, irritable, at times disagreeable.
Even at luncheon, half an hour before, he seemed to be thoroughly out of
sorts, and gave you the idea rather of a young junior with his first
brief than of the most formidable advocate at the Bar. Now all was
changed. As he stood facing Pigott, he was a picture of calmness,
self-possession, strength; there was no sign of impatience or
irritability; not a trace of illness, anxiety, or care; a slight tinge
of color lighted up the face, the eyes sparkled, and a pleasant smile
played about the mouth. The whole bearing and manner of the man, as he
proudly turned his head toward the box, showed courage, resolution,
confidence. Addressing the witness with much courtesy, while a profound
silence fell upon the crowded court, he began: 'Mr. Pigott, would you be
good enough, with my Lords' permission, to write some words on that
sheet of paper for me? Perhaps you will sit down in order to do so?' A
sheet of paper was then handed to the witness. I thought he looked for a
moment surprised. This clearly was not the beginning that he had
expected. He hesitated, seemed confused. Perhaps Russell observed it. At
all events he added quickly:--

"'Would you like to sit down?'

"'Oh, no, thanks,' replied Pigott, a little flurried.

"_The President._ 'Well, but I think it is better that you should sit
down. Here is a table upon which you can write in the ordinary way--the
course you always pursue.'

"Pigott sat down and seemed to recover his equilibrium.

"_Russell._ 'Will you write the word "livelihood"?'

"Pigott wrote.

"_Russell._ 'Just leave a space. Will you write the word "likelihood"?'

"Pigott wrote.

"_Russell._ 'Will you write your own name? Will you write the word
"proselytism," and finally (I think I will not trouble you at present
with any more) "Patrick Egan" and "P. Egan"?'

"He uttered these last words with emphasis, as if they imported
something of great importance. Then, when Pigott had written, he added
carelessly, 'There is one word I had forgotten. Lower down, please,
leaving spaces, write the word "hesitancy."' Then, as Pigott was about
to write, he added, as if this were the vital point, 'with a small "h."'
Pigott wrote and looked relieved.

"_Russell._ 'Will you kindly give me the sheet?'

"Pigott took up a bit of blotting paper to lay on the sheet, when
Russell, with a sharp ring in his voice, said rapidly, 'Don't blot it,
please.' It seemed to me that the sharp ring in Russell's voice
startled Pigott. While writing he had looked composed; now again he
looked flurried, and nervously handed back the sheet. The attorney
general looked keenly at it, and then said, with the air of a man who
had himself scored, 'My Lords, I suggest that had better be
photographed, if your Lordships see no objection.'

"_Russell_ (turning sharply toward the attorney general, and with an
angry glance and an Ulster accent, which sometimes broke out when he
felt irritated). 'Do not interrupt my cross-examination with that

"Little did the attorney general at that moment know that, in the ten
minutes or quarter of an hour which it had taken to ask these questions,
Russell had gained a decisive advantage. Pigott had in one of his
letters to Pat Egan spelt 'hesitancy' thus, 'hesitency.' In one of the
incriminatory letters 'hesitancy' was so spelt; and in the sheet now
handed back to Russell, Pigott had written 'hesitency,' too. In fact it
was Pigott's spelling of this word that had put the Irish members on his
scent. Pat Egan, seeing the word spelt with an 'e' in one of the
incriminatory letters, had written to Parnell, saying in effect, 'Pigott
is the forger. In the letter ascribed to you "hesitancy" is spelt
"hesitency." That is the way Pigott always spells the word.' These
things were not dreamt of in the philosophy of the attorney general when
he interrupted Russell's cross-examination with the request that the
sheet 'had better be photographed.' So closed the first round of the

"Russell went on in his former courteous manner, and Pigott, who had now
completely recovered confidence, looked once more like a man determined
to stand to his guns.

"Russell, having disposed of some preliminary points at length (and
after he had been perhaps about half an hour on his feet), closed with
the witness.

"_Russell._ 'The first publication of the articles "Parnellism and
Crime" was on the 7th March, 1887?'

"_Pigott_ (sturdily). 'I do not know.'

"_Russell_ (amiably). 'Well, you may assume that is the date.'

"_Pigott_ (carelessly). 'I suppose so.'

"_Russell._ 'And you were aware of the intended publication of the
correspondence, the incriminatory letters?'

"_Pigott_ (firmly). 'No, I was not at all aware of it.'

"_Russell_ (sharply, and with the Ulster ring in his voice). 'What?'

"_Pigott_ (boldly). 'No, certainly not.'

       *       *       *       *       *

"_Russell._ 'Were you not aware that there were grave charges to be made
against Mr. Parnell and the leading members of the Land League?'

"_Pigott_ (positively). 'I was not aware of it until they actually

"_Russell_ (again with the Ulster ring). 'What?'

"_Pigott_ (defiantly). 'I was not aware of it until the publication
actually commenced.'

"_Russell_ (pausing, and looking straight at the witness). 'Do you swear

"_Pigott_ (aggressively). 'I do.'

"_Russell_ (making a gesture with both hands, and looking toward the
bench). 'Very good, there is no mistake about that.'

"Then there was a pause; Russell placed his hands beneath the shelf in
front of him, and drew from it some papers--Pigott, the attorney
general, the judges, every one in court looking intently at him the
while. There was not a breath, not a movement. I think it was the most
dramatic scene in the whole cross-examination, abounding as it did in
dramatic scenes. Then, handing Pigott a letter, Russell said calmly:--

"'Is that your letter? Do not trouble to read it; tell me if it is your

"Pigott took the letter, and held it close to his eyes as if reading it.

"_Russell_ (sharply). 'Do not trouble to read it.'

"_Pigott._ 'Yes, I think it is.'

"_Russell_ (with a frown). 'Have you any doubt of it?'

"_Pigott._ 'No.'

"_Russell_ (addressing the judges). 'My Lords, it is from Anderton's
Hotel, and it is addressed by the witness to Archbishop Walsh. The
date, my Lords, is the 4th of March, three days before the first
appearance of the first of the articles, "Parnellism and Crime."'

"He then read:--

"'Private and confidential.'

"'My Lord:--The importance of the matter about which I write will
doubtless excuse this intrusion on your Grace's attention. Briefly, I
wish to say that I have been made aware of the details of certain
proceedings that are in preparation with the object of destroying the
influence of the Parnellite party in Parliament.'

"Having read this much Russell turned to Pigott and said:--

"'What were the certain proceedings that were in preparation?'

"_Pigott._ 'I do not recollect.'

"_Russell_ (resolutely). 'Turn to my Lords and repeat the answer.'

"_Pigott._ 'I do not recollect.'

"_Russell._ 'You swear that--writing on the 4th of March, less than two
years ago?'

"_Pigott._ 'Yes.'

"_Russell._ 'You do not know what that referred to?'

"_Pigott._ 'I do not really.'

"_Russell._ 'May I suggest to you?'

"_Pigott._ 'Yes, you may.'

"_Russell._ 'Did it refer to the incriminatory letters among other

"_Pigott._ 'Oh, at that date? No, the letters had not been obtained, I
think, at that date, had they, two years ago?'

"_Russell_ (quietly and courteously). 'I do not want to confuse you at
all, Mr. Pigott.'

"_Pigott._ 'Would you mind giving me the date of that letter?'

"_Russell._ 'The 4th of March.'

"_Pigott._ 'The 4th of March.'

"_Russell._ 'Is it your impression that the letters had not been
obtained at that date?'

"_Pigott._ 'Oh, yes, some of the letters had been obtained before that

"_Russell._ 'Then, reminding you that some of the letters had been
obtained before that date, did that passage that I have read to you in
that letter refer to these letters among other things?'

"_Pigott._ 'No, I rather fancy they had reference to the forthcoming
articles in the _Times_.'

"_Russell_ (glancing keenly at the witness). 'I thought you told us you
did not know anything about the forthcoming articles.'

"_Pigott_ (looking confused). 'Yes, I did. I find now I am
mistaken--that I must have heard something about them.'

"_Russell_ (severely). 'Then try not to make the same mistake again, Mr.
Pigott. "Now," you go on (continuing to read from Pigott's letter to the
archbishop), "I cannot enter more fully into details than to state that
the proceedings referred to consist in the publication of certain
statements purporting to prove the complicity of Mr. Parnell himself,
and some of his supporters, with murders and outrages in Ireland, to be
followed, in all probability, by the institution of criminal proceedings
against these parties by the Government."'

"Having finished the reading, Russell laid down the letter and said
(turning toward the witness), 'Who told you that?'

"_Pigott._ 'I have no idea.'

"_Russell_ (striking the paper energetically with his fingers). 'But
that refers, among other things, to the incriminatory letters.'

"_Pigott._ 'I do not recollect that it did.'

"_Russell_ (with energy). 'Do you swear that it did not?'

"_Pigott._ 'I will not swear that it did not.'

"_Russell._ 'Do you think it did?'

"_Pigott._ 'No, I do not think it did.'

"_Russell._ 'Do you think that these letters, if genuine, would prove or
would not prove Parnell's complicity in crime?'

"_Pigott._ 'I thought they would be very likely to prove it.'

"_Russell._ 'Now, reminding you of that opinion, I ask you whether you
did not intend to refer--not solely, I suggest, but among other
things--to the letters as being the matter which would prove complicity
or purport to prove complicity?'

"_Pigott._ 'Yes, I may have had that in my mind.'

"_Russell._ 'You could have had hardly any doubt that you had?'

"_Pigott._ 'I suppose so.'

"_Russell._ 'You suppose you may have had?'

"_Pigott._ 'Yes.'

"_Russell._ 'There is the letter and the statement (reading), "Your
Grace may be assured that I speak with full knowledge, and am in a
position to prove, beyond all doubt and question, the truth of what I
say." Was that true?'

"_Pigott._ 'It could hardly be true.'

"_Russell._ 'Then did you write that which was false?'

"_Pigott._ 'I suppose it was in order to give strength to what I said. I
do not think it was warranted by what I knew.'

"_Russell._ 'You added the untrue statement in order to add strength to
what you said?'

"_Pigott._ 'Yes.'

"_Russell._ 'You believe these letters to be genuine?'

"_Pigott._ 'I do.'

"_Russell._ 'And did at this time?'

"_Pigott._ 'Yes.'

"_Russell_ (reading). '"And I will further assure your Grace that I am
also able to point out how these designs may be successfully combated
and finally defeated." How, if these documents were genuine documents,
and you believed them to be such, how were you able to assure his Grace
that you were able to point out how the design might be successfully
combated and finally defeated?'

"_Pigott._ 'Well, as I say, I had not the letters actually in my mind at
that time. So far as I can gather, I do not recollect the letter to
Archbishop Walsh at all. My memory is really a blank on the

"_Russell._ 'You told me a moment ago, after great deliberation and
consideration, you had both the incriminatory letters and the letter to
Archbishop Walsh in your mind.'

"_Pigott._ 'I said it was probable I did; but I say the thing has
completely faded out of my mind.'

"_Russell_ (resolutely). 'I must press you. Assuming the letters to be
genuine, what were the means by which you were able to assure his Grace
that you could point out how the design might be successfully combated
and finally defeated?'

"_Pigott_ (helplessly). 'I cannot conceive really.'

"_Russell._ 'Oh, try. You must really try.'

"_Pigott_ (in manifest confusion and distress). 'I cannot.'

"_Russell_ (looking fixedly at the witness). 'Try.'

"_Pigott._ 'I cannot.'

"_Russell._ 'Try.'

"_Pigott._ 'It is no use.'

"_Russell_ (emphatically). 'May I take it, then, your answer to my Lords
is that you cannot give any explanation?'

"_Pigott._ 'I really cannot absolutely.'

"_Russell_ (reading). '"I assure your Grace that I have no other motive
except to respectfully suggest that your Grace would communicate the
substance to some one or other of the parties concerned, to whom I could
furnish details, exhibit proofs, and suggest how the coming blow may be
effectually met." What do you say to that, Mr. Pigott?'

"_Pigott._ 'I have nothing to say except that I do not recollect
anything about it absolutely.'

"_Russell._ 'What was the coming blow?'

"_Pigott._ 'I suppose the coming publication.'

"_Russell._ 'How was it to be effectively met?'

"_Pigott._ 'I have not the slightest idea.'

"_Russell._ 'Assuming the letters to be genuine, does it not even now
occur to your mind how it could be effectively met?'

"_Pigott._ 'No.'

"Pigott now looked like a man, after the sixth round in a prize fight,
who had been knocked down in every round. But Russell showed him no
mercy. I shall take another extract.

       *       *       *       *       *

"_Russell._ 'Whatever the charges in "Parnellism and Crime," including
the letters, were, did you believe them to be true or not?'

"_Pigott._ 'How can I say that when I say I do not know what the charges
were? I say I do not recollect that letter to the archbishop at all, or
any of the circumstances it refers to.'

"_Russell._ 'First of all you knew this: that you procured and paid for
a number of letters?'

"_Pigott._ 'Yes.'

"_Russell._ 'Which, if genuine, you have already told me, would gravely
implicate the parties from whom these were supposed to come.'

"_Pigott._ 'Yes, gravely implicate.'

"_Russell._ 'You would regard that, I suppose, as a serious charge?'

"_Pigott._ 'Yes.'

"_Russell._ 'Did you believe that charge to be true or false?'

"_Pigott._ 'I believed that charge to be true.'

"_Russell._ 'You believed that to be true?'

"_Pigott._ 'I do.'

"_Russell._ 'Now I will read this passage [from Pigott's letter to the
archbishop], "I need hardly add that, did I consider the parties really
guilty of the things charged against them, I should not dream of
suggesting that your Grace should take part in an effort to shield them;
I only wish to impress on your Grace that the evidence is apparently
convincing, and would probably be sufficient to secure conviction if
submitted to an English jury." What do you say to that, Mr. Pigott?'

"_Pigott_ (bewildered). 'I say nothing, except that I am sure I could
not have had the letters in my mind when I said that, because I do not
think the letters conveyed a sufficiently serious charge to cause me to
write in that way.'

"_Russell._ 'But you know that was the only part of the charge, so far
as you have yet told us, that you had anything to do in getting up?'

"_Pigott._ 'Yes, that is what I say; I must have had something else in
my mind which I cannot at present recollect--that I must have had other

"_Russell._ 'What charges?'

"_Pigott._ 'I do not know. That is what I cannot tell you.'

"_Russell._ 'Well, let me remind you that that particular part of the
charges--the incriminatory letters--were letters that you yourself knew
all about.'

"_Pigott._ 'Yes, of course.'

"_Russell_ (reading from another letter of Pigott's to the archbishop).
'"I was somewhat disappointed in not having a line from your Grace, as I
ventured to expect I might have been so far honored. I can assure your
Grace that I have no other motive in writing save to avert, if possible,
a great danger to people with whom your Grace is known to be in strong
sympathy. At the same time, should your Grace not desire to interfere in
the matter, or should you consider that they would refuse me a hearing,
I am well content, having acquitted myself of what I conceived to be my
duty in the circumstances. I will not further trouble your Grace save to
again beg that you will not allow my name to transpire, seeing that to
do so would interfere injuriously with my prospects, without any
compensating advantage to any one. I make the request all the more
confidently because I have had no part in what is being done to the
prejudice of the Parnellite party, though I was enabled to become
acquainted with all the details."'

"_Pigott_ (with a look of confusion and alarm). 'Yes.'

"_Russell._ 'What do you say to that?'

"_Pigott._ 'That it appears to me clearly that I had not the letters in
my mind.'

"_Russell._ 'Then if it appears to you clearly that you had not the
letters in your mind, what had you in your mind?'

"_Pigott._ 'It must have been something far more serious.'

"_Russell._ 'What was it?'

"_Pigott_ (helplessly, great beads of perspiration standing out on his
forehead and trickling down his face). 'I cannot tell you. I have no

"_Russell._ 'It must have been something far more serious than the

"_Pigott_ (vacantly). 'Far more serious.'

"_Russell_ (briskly). 'Can you give my Lords any clew of the most
indirect kind to what it was?'

"_Pigott_ (in despair). 'I cannot.'

"_Russell._ 'Or from whom you heard it?'

"_Pigott._ 'No.'

"_Russell._ 'Or when you heard it?'

"_Pigott._ 'Or when I heard it.'

"_Russell._ 'Or where you heard it?'

"_Pigott._ 'Or where I heard it.'

"_Russell._ 'Have you ever mentioned this fearful matter--whatever it
is--to anybody?'

"_Pigott._ 'No.'

"_Russell._ 'Still locked up, hermetically sealed in your own bosom?'

"_Pigott._ 'No, because it has gone away out of my bosom, whatever it

"On receiving this answer Russell smiled, looked at the bench, and sat
down. A ripple of derisive laughter broke over the court, and a buzz of
many voices followed. The people standing around me looked at each other
and said, 'Splendid.' The judges rose, the great crowd melted away, and
an Irishman who mingled in the throng expressed, I think, the general
sentiment in a single word, 'Smashed.'"

Pigott's cross-examination was finished the following day, and the
second day he disappeared entirely, and later sent back from Paris a
confession of his guilt, admitting his perjury, and giving the details
of how he had forged the alleged Parnell letter by tracing words and
phrases from genuine Parnell letters, placed against the window-pane,
and admitting that he had sold the forged letter for £605.

After the confession was read, the Commission "found" that it was a
forgery, and the _Times_ withdrew the facsimile letter.

A warrant was issued for Pigott's arrest on the charge of perjury, but
when he was tracked by the police to a hotel in Madrid, he asked to be
given time enough to collect his belongings, and, retiring to his room,
blew out his brains.



The records of the criminal courts in this country contain few cases
that have excited so much human interest among all classes of the
community as the prosecution and conviction of Carlyle W. Harris.

Even to this day--ten years after the trial--there is a widespread
belief among men, perhaps more especially among women, who did not
attend the trial, but simply listened to the current gossip of the day
and followed the newspaper accounts of the court proceedings, that
Harris was innocent of the crime for the commission of which his life
was forfeited to the state.

It is proposed in this chapter to discuss some of the facts that led up
to the testimony of one of the most distinguished toxicologists in the
country, who was called for the defence on the crucial point in the
case; and to give extracts from his cross-examination, his failure to
withstand which was the turning-point in the entire trial. He returned
to his home in Philadelphia after he left the witness-stand, and openly
declared in public, when asked to describe his experiences in New
York, that he had "gone to New York only to make a fool of himself and
return home again."

It is also proposed to give some of the _inside_ history of the
case--facts that never came out at the trial, not because they were
unknown at the time to the district attorney, nor unsusceptible of
proof, but because the strict rules of evidence in such cases often, as
it seems to the writer, withhold from the ears of the jury certain
facts, the mere recital of which seems to conclude the question of
guilt. For example, the rule forbidding the presentation to the jury
of anything that was said by the victim of a homicide, even to witnesses
surrounding the death-bed, unless the victim in express terms makes
known his own belief that he cannot live, and that he has abandoned all
_hope_ or expectation of recovery before he tells the tale of the manner
in which he was slain, or the causes that led up to it, has allowed many
a guilty prisoner, if not to escape entirely, at least to avoid the full
penalty for the crime he had undoubtedly committed.

Carlyle Harris was a gentleman's son, with all the advantages of
education and breeding. In his twenty-second year, and just after
graduating with honors from the College of Physicians and Surgeons in
New York City, he was indicted and tried for the murder of Miss Helen
Potts, a young, pretty, intelligent, and talented school girl in
attendance at Miss Day's Ladies' Boarding School, on 40th Street, New
York City.

Harris had made the acquaintance of Miss Potts in the summer of 1889,
and all during the winter paid marked attention to her. The following
spring, while visiting her uncle, who was a doctor, she was delivered of
a four months' child, and was obliged to confess to her mother that she
was secretly married to Harris under assumed names, and that her student
husband had himself performed an abortion upon her.

Harris was sent for. He acknowledged the truth of his wife's statements,
but refused to make the marriage public. From this time on, till the day
of her daughter's death, the wretched mother made every effort to
induce Harris to acknowledge his wife publicly. She finally wrote him
on the 20th of January, 1891, "You must go on the 8th of February, the
anniversary of your secret marriage, before a minister of the gospel,
and there have a Christian marriage performed--no other course than this
will any longer be satisfactory to me or keep me quiet."

That very day Harris ordered at an apothecary store six capsules, each
containing 4-1/2 grains of quinine and 1/6 of a grain of morphine, and
had the box marked: "C. W. H. Student. One before retiring." Miss Potts
had been complaining of sick headaches, and Harris gave her four of
these capsules as an ostensible remedy. He then wrote to Mrs. Potts that
he would agree to her terms "unless some other way could be found of
satisfying her scruples," and went hurriedly to Old Point Comfort. Upon
hearing from his wife that the capsules made her worse instead of
better, he still persuaded her to continue taking them. On the day of
her death she complained to her mother about the medicine Carlyle had
given her, and threatened to throw the box with the remaining capsule
out of the window. Her mother persuaded her to try this last one, which
she promised to do. Miss Potts slept in a room with three classmates
who, on this particular night, had gone to a symphony concert. Upon
their return they found Helen asleep, but woke her up and learned from
her that she had been having "such beautiful dreams," she "had been
dreaming of Carl." Then she complained of feeling numb, and becoming
frightened, begged the girls not to let her go to sleep. She repeated
that she had taken the medicine Harris had given her, and asked them if
they thought it possible that he would give her anything to harm her.
She soon fell into a profound coma, breathing only twice to the minute.
The doctors worked over her for eleven hours without restoring her to
consciousness, when she stopped breathing entirely.

The autopsy, fifty-six days afterward, disclosed an apparently healthy
body, and the chemical analysis of the contents of the stomach disclosed
the presence of morphine but _not_ of quinine, though the capsules as
originally compounded by the druggist contained twenty-seven times as
much quinine as morphine.

This astounding discovery led to the theory of the prosecution: that
Harris had emptied the contents of _one_ of the capsules, had
substituted morphine in sufficient quantities to kill, _in place of_ the
4-1/2 grains of quinine (to the eye, powdered quinine and morphine are
identical), and had placed this fatal capsule in the box with the other
three harmless ones, one to be taken each night. He had then fled from
the city, not knowing which day would brand him a murderer.

Immediately after his wife's death Harris went to one of his medical
friends and said: "I only gave her four capsules of the six I had made
up; _the two I kept out will show that they are perfectly harmless. No
jury can convict me with those in my possession; they can be analyzed
and proved to be harmless._"

They _were_ analyzed and it was proved that the prescription had been
correctly compounded. But oftentimes the means a criminal uses in order
to conceal his deed are the very means that Providence employs to reveal
the sin that lies hidden in his soul. Harris failed to foresee that it
was the preservation of these capsules that would really convict him.
Miss Potts had taken _all_ that he had given her, and no one could ever
have been certain that it was not the druggist's awful mistake, had not
these retained capsules been analyzed. When Harris emptied one capsule
and reloaded it with morphine, _he had himself become the druggist_.

It was contended that Harris never intended to recognize Helen Potts as
his wife. He married her in secret, it appeared at the trial,--as it
were from his own lips through the medium of conversation with a
friend,--"because he could not accomplish her ruin in any other way." He
brought her to New York, was married to her before an alderman under
assumed names, and then having accomplished his purpose, burned the
evidence of their marriage, the false certificate. Finally, when the day
was set upon which he _must_ acknowledge her as his wife, he planned her

The late recorder, Frederick Smyth, presided at the trial with great
dignity and fairness. The prisoner was ably represented by John A.
Taylor, Esq., and William Travers Jerome, Esq., the present district
attorney of New York.

Mr. Jerome's cross-examination of Professor Witthaus, the leading
chemist for the prosecution, was an extremely able piece of work, and
during its eight hours disclosed an amount of technical information and
research such as is seldom seen in our courts. Had it not been for the
witness's impregnable position, he certainly would have succumbed before
the attack. The length and technicality of the examination render its
use impracticable in this connection; but it is recommended to all
students of cross-examination who find themselves confronted with the
task of examination in so remote a branch of the advocate's equipment as
a knowledge of chemistry.

The defence consisted entirely of medical testimony, directed toward
creating a doubt as to our theory that morphine was the cause of death.
Their cross-examination of our witnesses was suggestive of death from
natural causes: from heart disease, a brain tumor, apoplexy, epilepsy,
uremia. In fact, the multiplicity of their defences was a great
weakness. Gradually they were forced to abandon all but two possible
causes of death,--that by morphine poisoning and that by uremic
poisoning. This narrowed the issue down to the question, Was it a large
dose of morphine that caused death, or was it a latent kidney disease
that was superinduced and brought to light in the form of uremic coma by
small doses of morphine, such as the one-sixth of a grain admittedly
contained in the capsules Harris administered? In one case Harris was
guilty; in the other he was innocent.

Helen Potts died in a profound coma. Was it the coma of morphine, or
that of kidney disease? Many of the leading authorities in this city had
given their convictions in favor of the morphine theory. In reply to
those, the defence was able to call a number of young doctors, who have
since made famous names for themselves, but who at the time were almost
useless as witnesses with the jury because of their comparative
inexperience. Mr. Jerome had, however, secured the services of one
physician who, of all the others in the country, had perhaps apparently
best qualified himself by his writings and thirty years of hospital
experience to speak authoritatively upon the subject.

His direct testimony was to the effect that--basing his opinion partly
upon wide reading of the literature of the subject, and what seemed to
him to be the general consensus of professional opinion about it, and
"_very largely on his own experience_"--no living doctor can distinguish
the coma of morphine from that of kidney disease; and as the theory of
the criminal law is that, if the death can be equally as well attributed
to natural causes as to the use of poison, the jury would be bound to
give the prisoner the benefit of the doubt and acquit him.

It was the turning-point in the trial. If any of the jurors credited
this testimony,--the witness gave the reasons for his opinion in a very
quiet, conscientious, and impressive manner,--there certainly could be
no conviction in the case, nothing better than a disagreement of the
jury. It was certain Harris had given the capsules, but unless his wife
had died of morphine poisoning, he was innocent of her death.

The cross-examination that follows is much abbreviated and given partly
from memory. It was apparent that the witness would withstand any amount
of technical examination and easily get the better of the cross-examiner
if such matters were gone into. He had made a profound impression. The
court had listened to him with breathless interest. He must be dealt
with gently and, if possible, led into self-contradictions where he was
least prepared for them.

The cross-examiner sparred for an opening with the determination to
strike quickly and to sit down if he got in one telling blow. The first
one missed aim a little, but the second brought a peal of laughter from
the jury and the audience, and the witness retired in great confusion.
Even the lawyers for the defence seemed to lose heart, and although two
hours before time of adjournment, begged the court for a recess till the
following day.

_Counsel_ (quietly). "Do you wish the jury to understand, doctor, that
Miss Helen Potts did not die of morphine poisoning?"

_Witness._ "I do not swear to that."

_Counsel._ "What did she die of?"

_Witness._ "I don't swear what she died of."

_Counsel._ "I understood you to say that in your opinion the symptoms of
morphine could not be sworn to with positiveness. Is that correct?"

_Witness._ "I don't think they can, with positiveness."

_Counsel._ "Do you wish to go out to the world as saying that you have
never diagnosed a case of morphine poisoning excepting when you had an
autopsy to exclude kidney disease?"

_Witness._ "I do not. I have not said so."

_Counsel._ "Then you have diagnosed a case on the symptoms alone, yes?
or no? I want a categorical answer."

_Witness_ (sparring). "I would refuse to answer that question
categorically; the word 'diagnosed' is used with two different meanings.
One has to make what is known as a 'working diagnosis' when he is called
to a case, not a positive diagnosis."

_Counsel._ "When was your last case of opium or morphine poisoning?"

_Witness._ "I can't remember which was the last."

_Counsel_ (seeing an opening). "I don't want the name of the patient.
Give me the date approximately, that is, the year--but under oath."

_Witness._ "I think the last was some years ago."

_Counsel._ "How many years ago?"

_Witness_ (hesitating). "It may be eight or ten years ago."

_Counsel._ "Was it a case of death from morphine poisoning?"

_Witness._ "Yes, sir."

_Counsel._ "Was there an autopsy?"

_Witness._ "No, sir."

_Counsel._ "How did you know it was a death from morphine, if, as you
said before, such symptoms cannot be distinguished?"

_Witness._ "I found out from a druggist that the woman had taken seven
grains of morphine."

_Counsel._ "You made no diagnosis at all until you heard from the

_Witness._ "I began to give artificial respiration."

_Counsel._ "But that is just what you would do in a case of morphine

_Witness_ (hesitating). "Yes, sir. I made, of course, a working

_Counsel._ "Do you remember the case you had before that?"

_Witness._ "I remember another case."

_Counsel._ "When was that?"

_Witness._ "It was a still longer time ago. I don't know the date."

_Counsel._ "How many years ago, on your oath?"

_Witness._ "Fifteen, probably."

_Counsel._ "Any others?"

_Witness._ "Yes, one other."

_Counsel._ "When?"

_Witness._ "Twenty years ago."

_Counsel._ "Are these three cases all you can remember in your

_Witness._ "Yes, sir."

_Counsel_ (chancing it). "Were more than one of them deaths from

_Witness._ "No, sir, only one."

_Counsel_ (looking at the jury somewhat triumphantly). "Then it all
comes down to this: you have had the experience of one case of morphine
poisoning in the last twenty years?"

_Witness_ (in a low voice). "Yes, sir, one that I can remember."

_Counsel_ (excitedly). "And are you willing to come here from
Philadelphia, and state that the New York doctors who have already
testified against you, and who swore they had had seventy-five similar
cases in their own practice, are mistaken in their diagnoses and

_Witness_ (embarrassed and in a low tone). "Yes, sir, I am."

_Counsel._ "You never heard of Helen Potts until a year after her death,
did you?"

_Witness._ "No, sir."

_Counsel._ "You heard these New York physicians say that they attended
her and observed her symptoms for eleven hours before death?"

_Witness._ "Yes, sir."

_Counsel._ "Are you willing to go on record, with your one experience in
twenty years, as coming here and saying that you do not believe our
doctors can tell morphine poisoning when they see it?"

_Witness_ (sheepishly). "Yes, sir."

_Counsel._ "You have stated, have you not, that the symptoms of morphine
poisoning cannot be told with positiveness?"

_Witness._ "Yes, sir."

_Counsel._ "You said you based that opinion upon your own experience,
and it now turns out you have seen but one case in twenty years."

_Witness._ "I also base it upon my reading."

_Counsel_ (becoming almost contemptuous in manner). "Is your reading
confined to your own book?"

_Witness_ (excitedly). "No, sir; I say no."

_Counsel_ (calmly). "But I presume you embodied in your own book the
results of your reading, did you not?"

_Witness_ (a little apprehensively). "I tried to, sir."

It must be explained here that the attending physicians had said that
the pupils of the eyes of Helen Potts were contracted to a pin-point, so
much so as to be practically unrecognizable, and _symmetrically_
contracted--that this symptom was the one _invariably_ present in coma
from morphine poisoning, and distinguished it from all other forms of
death, whereas in the coma of kidney disease one pupil would be dilated
and the other contracted; they would be unsymmetrical.

_Counsel_ (continuing). "Allow me to read to you from your own book on
page 166, where you say (reading), 'I have thought that inequality of
the pupils'--that is, where they are not symmetrically contracted--'is
proof that a case is not one of narcotism'--or morphine poisoning--'but
_Professor Taylor has recorded a case of morphine poisoning in which it_
[the unsymmetrical contraction of the pupils] _occurred_.' Do I read it
as you intended it?"

_Witness._ "Yes, sir."

_Counsel._ "_So until you heard of the case that Professor Taylor
reported, you had always supposed symmetrical contraction of the pupils
of the eyes to be the distinguishing symptom of morphine poisoning, and
it is on this that you base your statement that the New York doctors
could not tell morphine poisoning positively when they see it?_"

_Witness_ (little realizing the point). "Yes, sir."

_Counsel_ (very loudly). "_Well, sir, did you investigate that case far
enough to discover that Professor Taylor's patient had one glass

_Witness_ (in confusion). "I have no memory of it."

_Counsel._ "That has been proved to be the case here. You would better
go back to Philadelphia, sir."

There were roars of laughter throughout the audience as counsel resumed
his seat and the witness walked out of the court room. It is difficult
to reproduce in print the effect made by this occurrence, but with the
retirement of this witness the defendant's case suffered a collapse from
which it never recovered.

  [25] The reports of six thousand cases of morphine poisoning had
  been examined by the prosecution in this case before trial, and
  among them the case reported by Professor Taylor.

       *       *       *       *       *

It is interesting to note that within a year of Harris's conviction, Dr.
Buchanan was indicted and tried for a similar offence--wife poisoning by
the use of morphine.

It appeared in evidence at Dr. Buchanan's trial that, during the Harris
trial and the examination of the medical witnesses, presumably the
witness whose examination has been given above, Buchanan had said to his
messmates that "Harris was a ---- fool, he didn't know how to mix his
drugs. If he had put a little atropine with his morphine, it would have
dilated the pupil of at least one of his victim's eyes, and no doctor
could have deposed to death by morphine."

When Buchanan's case came up for trial it was discovered that, although
morphine had been found in the stomach, blood, and intestines of his
wife's body, the pupils of the eyes were not symmetrically contracted.
No positive diagnosis of her case could be made by the attending
physicians until the continued chemical examination of the contents of
the body disclosed indisputable evidence of atropine (belladonna).
Buchanan had profited by the disclosures in the Harris trial, but had
made the fatal mistake of telling his friends how it could have been
done in order to cheat science. It was this statement of his that put
the chemists on their guard, and resulted in Buchanan's conviction and
subsequent execution.

Carlyle Harris maintained his innocence even after the Court of Appeals
had unanimously sustained his conviction, and even as he calmly took his
seat in the electric chair.

The most famous English poison case comparable to the Harris and
Buchanan cases was that of the celebrated William Palmer, also a
physician by profession, who poisoned his companion by the use of
strychnine in order to obtain his money and collect his racing bets. The
trial is referred to in detail in another chapter.

Palmer, like Harris and Buchanan, maintained a stoical demeanor
throughout his trial and confinement in jail, awaiting execution. The
morning of his execution he ate his eggs at breakfast as if he were
going on a journey. When he was led to the gallows, it was demanded of
him in the name of God, as was the custom in England in those days, if
he was innocent or guilty. He made no reply. Again the question was put,
"William Palmer, in the name of Almighty God, are you innocent or
guilty?" Just as the white cap came over his face he murmured in a low
breath, "Guilty," and the bolts were drawn with a crash.



On December 15, 1900, there appeared in the _New York World_ an article
written by Thomas J. Minnock, a newspaper reporter, in which he claimed
to have been an eye-witness to the shocking brutality of certain nurses
in attendance at the Insane Pavilion of Bellevue Hospital, which
resulted in the death, by strangulation, of one of its inmates, a
Frenchman named Hilliard. This Frenchman had arrived at the hospital at
about four o'clock in the afternoon of Tuesday, December 11. He was
suffering from alcoholic mania, but was apparently otherwise in normal
physical condition. Twenty-six hours later, or on Wednesday, December
12, he died. An autopsy was performed which disclosed several bruises on
the forehead, arm, hand, and shoulder, three broken ribs and a broken
hyoid bone in the neck (which supports the tongue), and a suffusion of
blood or hæmorrhage on both sides of the windpipe. The coroner's
physician reported the cause of death, as shown by the autopsy, to be
strangulation. The newspaper reporter, Minnock, claimed to have been in
Bellevue at the time, feigning insanity for newspaper purposes; and upon
his discharge from the hospital he stated that he had seen the Frenchman
strangled to death by the nurses in charge of the Pavilion by the use of
a sheet tightly twisted around the insane man's neck. The language used
in the newspaper articles written by Minnock to describe the occurrences
preceding the Frenchman's death was as follows:--

"At supper time on Wednesday evening, when the Frenchman, Mr. Hilliard,
refused to eat his supper, the nurse, Davis, started for him. Hilliard
ran around the table, and the other two nurses, Dean and Marshall,
headed him off and held him; they forced him down on a bench, Davis
called for a sheet, one of the other two, I do not remember which,
brought it, and Davis drew it around Hilliard's neck like a rope. Dean
was behind the bench on which Hilliard had been pulled back; he gathered
up the loose ends of the sheet and pulled the linen tight around
Hilliard's neck, then he began to twist the folds in his hand. I was
horrified. I have read of the garrote; I have seen pictures of how
persons are executed in Spanish countries; I realized that here, before
my eyes, a strangle was going to be performed. Davis twisted the ends of
the sheet in his hands, round and round; he placed his knee against
Hilliard's back and exercised all his force. The dying man's eyes began
to bulge from their sockets; it made me sick, but I looked on as if
fascinated. Hilliard's hands clutched frantically at the coils around
his neck. 'Keep his hands down, can't you?' shouted Davis in a rage.
Dean and Marshall seized the helpless man's hands; slowly,
remorselessly, Davis kept on twisting the sheet. Hilliard began to get
black in the face; his tongue was hanging out. Marshall got frightened.
'Let up, he is getting black!' he said to Davis. Davis let out a couple
of twists of the sheet, but did not seem to like to do it. At last
Hilliard got a little breath, just a little. The sheet was still brought
tight about the neck. 'Now will you eat?' cried Davis. 'No,' gasped the
insane man. Davis was furious. 'Well, I will make you eat; I will choke
you until you do eat,' he shouted, and he began to twist the sheet
again. Hilliard's head would have fallen upon his breast but for the
fact that Davis was holding it up. He began to get black in the face
again. A second time they got frightened, and Davis eased up on the
string. He untwisted the sheet, but still kept a firm grasp on the
folds. It took Hilliard some time to come to. When he did at last, Davis
again asked him if he would eat. Hilliard had just breath enough to
whisper faintly, 'No.' I thought the man was dying then. Davis twisted
up the sheet again, and cried, 'Well, I will make him eat or I will
choke him to death.' He twisted and twisted until I thought he would
break the man's neck. Hilliard was unconscious at last. Davis jerked the
man to the floor and kneeled on him, but still had the strangle hold
with his knee giving him additional purchase. He twisted the sheet until
his own fingers were sore, then the three nurses dragged the limp body
to the bath-room, heaved him into the tub with his clothes on, and
turned the cold water on him. He was dead by this time, I believe. He
was strangled to death, and the finishing touches were put on when they
had him on the floor. No big, strong, healthy man could have lived under
that awful strangling. Hilliard was weak and feeble."

The above article appeared in the morning _Journal_, a few days after
the original publication in the _New York World_. The other local papers
immediately took up the story, and it is easy to imagine the pitch to
which the public excitement and indignation were aroused. The three
nurses in charge of the pavilion at the time of Hilliard's death were
immediately indicted for manslaughter, and the head nurse, Jesse R.
Davis, was promptly put on trial in the Court of General Sessions,
before Mr. Justice Cowing and a "special jury." The trial lasted three
weeks, and after deliberating five hours upon their verdict, the jury
acquitted the prisoner.

The intense interest taken in the case, not only by the public, but by
the medical profession, was increased by the fact that for the first
time in the criminal courts of this country two inmates of the insane
pavilion, themselves admittedly insane, were called by the prosecution,
and sworn and accepted by the court as witnesses against the prisoner.
One of these witnesses was suffering from a form of insanity known as
paranoia, and the other from general paresis. With the exception of the
two insane witnesses and the medical testimony founded upon the autopsy,
there was no direct evidence on which to convict the prisoner but the
statement of the newspaper reporter, Minnock. He was the one sane
witness called on behalf of the prosecution, who was an eye-witness to
the occurrence, and the issues in the case gradually narrowed down to a
question of veracity between the newspaper reporter and the accused
prisoner, the testimony of each of these witnesses being corroborated or
contradicted on one side or the other by various other witnesses.

If Minnock's testimony was credited by the jury, the prisoner's
contradiction would naturally have no effect whatever, and the public
prejudice, indignation, and excitement ran so high that the jury were
only too ready and willing to accept the newspaper account of the
transaction. The cross-examination of Minnock, therefore, became of the
utmost importance. It was essential that the effect of his testimony
should be broken, and counsel having his cross-examination in charge had
made the most elaborate preparations for the task. Extracts from the
cross-examination are here given as illustrations of many of the
suggestions which have been discussed in previous chapters.

The district attorney in charge of the prosecution was Franklin Pierce,
Esq. In his opening address to the jury he stated that he "did not
believe that ever in the history of the state, or indeed of the country,
had a jury been called upon to decide such an important case as the one
on trial." He continued: "There is no fiction--no 'Hard Cash'--in this
case. The facts here surpass anything that fiction has ever produced.
The witnesses will describe the most terrible treatment that was ever
given to an insane man. No writer of fiction could have put them in a
book. They would appear so improbable and monstrous that his manuscript
would have been rejected as soon as offered to a publisher."

When the reporter, Minnock, stepped to the witness-stand, the court room
was crowded, and yet so intense was the excitement that every word the
witness uttered could be distinctly heard by everybody present. He gave
his evidence in chief clearly and calmly, and with no apparent motive
but to narrate correctly the details of the crime he had seen committed.
Any one unaware of his career would have regarded him as an unusually
clever and apparently honest and courageous man with a keen memory and
with just the slightest touch of gratification at the important position
he was holding in the public eye in consequence of his having unearthed
the atrocities perpetrated in our public hospitals.

His direct evidence was practically a repetition of his newspaper
article already referred to, only much more in detail. After questioning
him for about an hour, the district attorney sat down with a confident
"He is your witness, if you wish to cross-examine him."

No one who has never experienced it can have the slightest appreciation
of the nervous excitement attendant on being called upon to
cross-examine the chief witness in a case involving the life or liberty
of a human being. If Minnock withstood the cross-examination, the nurse
Davis, apparently a most worthy and refined young man who had just
graduated from the Mills Training School for Nurses, and about to be
married to a most estimable young lady, would have to spend at least the
next twenty years of his life at hard labor in state prison.

The first fifteen minutes of the cross-examination were devoted to
showing that the witness was a thoroughly educated man, twenty-five
years of age, a graduate of Saint John's College, Fordham, New York, the
Sacred Heart Academy, the Francis Xavier, the De Lasalle Institution,
and had travelled extensively in Europe and America. The
cross-examination then proceeded:--

_Counsel_ (amiably). "Mr. Minnock, I believe you have written the story
of your life and published it in the _Bridgeport Sunday Herald_ as
recently as last December? I hold the original article in my hand."

_Witness._ "It was not the story of my life."

_Counsel._ "The article is signed by you and purports to be a history of
your life."

_Witness._ "It is an imaginary story dealing with hypnotism. Fiction
partly, but it dealt with facts."

_Counsel._ "That is, you mean to say you mixed fiction and fact in the
history of your life?"

_Witness._ "Yes, sir."

_Counsel._ "In other words, you dressed up facts with fiction to make
them more interesting?"

_Witness._ "Precisely."

_Counsel._ "When in this article you wrote that at the age of twelve you
ran away with a circus, was that dressed up?"

_Witness._ "Yes, sir."

_Counsel._ "It was not true?"

_Witness._ "No, sir."

_Counsel._ "When you said that you continued with this circus for over a
year, and went with it to Belgium, there was a particle of truth in that
because you did, as a matter of fact, go to Belgium, but not with the
circus as a public clown; is that the idea?"

_Witness._ "Yes, sir."

_Counsel._ "So there was some little truth mixed in at this point with
the other matter?"

_Witness._ "Yes, sir."

_Counsel._ "When you wrote that you were introduced in Belgium, at the
Hospital General, to Charcot, the celebrated Parisian hypnotist, was
there some truth in that?"

_Witness._ "No, sir."

_Counsel._ "You knew that Charcot was one of the originators of
hypnotism in France, didn't you?"

_Witness._ "I knew that he was one of the original hypnotists."

_Counsel._ "How did you come to state in the newspaper history of your
life that you were introduced to Charcot at the Hospital General at
Paris if that was not true?"

_Witness._ "While there I met a Charcot."

_Counsel._ "Oh, I see."

_Witness._ "But not the original Charcot."

_Counsel._ "Which Charcot did you meet?"

_Witness._ "A woman. She was a lady assuming the name of Charcot,
claiming to be Madame Charcot."

_Counsel._ "So that when you wrote in this article that you had met
Charcot, you intended people to understand that it was the celebrated
Professor Charcot, and it was partly true, because there was a woman by
the name of Charcot whom you had really met?"

_Witness._ "Precisely."

_Counsel_ (quietly). "That is to say, there was some truth in it?"

_Witness._ "Yes, sir."

_Counsel._ "When in that article you said that Charcot taught you to
stand pain, was there any truth in that?"

_Witness._ "No."

_Counsel._ "Did you as a matter of fact learn to stand pain?"

_Witness._ "No."

_Counsel._ "When you said in this article that Charcot began by sticking
pins and knives into you little by little, so as to accustom you to
standing pain, was that all fiction?"

_Witness._ "Yes, sir."

_Counsel._ "When you wrote that Charcot taught you to reduce your
respirations to two a minute, so as to make your body insensible to
pain, was that fiction?"

_Witness._ "Purely imagination."

_Court_ (interrupting). "Counsellor, I will not allow you to go further
in this line of inquiry. The witness himself says his article was almost
entirely fiction, some of it founded upon fact. I will allow you the
greatest latitude in a proper way, but not in this direction."

_Counsel._ "Your Honor does not catch the point."

_Court._ "I do not think I do."

_Counsel._ "This prosecution was started by a newspaper article written
by the witness, and published in the morning _Journal_. It is the claim
of the defence that the newspaper article was a mixture of fact and
fiction, mostly fiction. The witness has already admitted that the
history of his life, published but a few months ago, and written and
signed by himself and sold as a history of his life, was a mixture of
fact and fiction, mostly fiction. Would it not be instructive to the
jury to learn from the lips of the witness himself how far he dressed up
the pretended history of his own life, that they may draw from it some
inference as to how far he has likewise dressed up the article which was
the origin of this prosecution?"

_Court._ "I shall grant you the greatest latitude in examination of the
witness in regard to the newspaper article which he published in regard
to this case, but I exclude all questions relating to the witness's
newspaper history of his own life."

_Counsel._ "Did you not have yourself photographed and published in the
newspapers in connection with the history of your life, with your mouth
and lips and ears sewed up, while you were insensible to pain?"

_Court._ "Question excluded."

_Counsel._ "Did you not publish a picture of yourself in connection with
the pretended history of your life, representing yourself upon a cross,
spiked hand and foot, but insensible to pain, in consequence of the
instruction you had received from Professor Charcot?"

_Court._ "Question excluded."

_Counsel._ "I offer these pictures and articles in evidence."

_Court_ (roughly). "Excluded."

_Counsel._ "In the article you published in the _New York Journal_,
wherein you described the occurrences in the present case, which you
have just now related upon the witness-stand, did you there have
yourself represented as in the position of the insane patient, with a
sheet twisted around your neck, and held by the hands of the hospital
nurse who was strangling you to death?"

_Witness._ "I wrote the article, but I did not pose for the picture. The
picture was posed for by some one else who looked like me."

_Counsel_ (stepping up to the witness and handing him the newspaper
article). "Are not these words under your picture, 'This is how I saw it
done, Thomas J. Minnock,' a facsimile of your handwriting?"

_Witness._ "Yes, sir, it is my handwriting."

_Counsel._ "Referring to the history of your life again how many
imaginary articles on the subject have you written for the newspapers
throughout the country?"

_Witness._ "One."

_Counsel._ "You have put several articles in New York papers, have you

_Witness._ "It was only the original story. It has since been redressed,
that's all."

_Counsel._ "Each time you signed the article and sold it to the
newspaper for money, did you not?"

_Court._ "Excluded."

_Counsel_ (with a sudden change of manner, and in a loud voice, turning
to the audience). "Is the chief of police of Bridgeport, Connecticut, in
the court room? (Turning to the witness.) Mr. Minnock, do you know this

_Witness._ "I do."

_Counsel._ "Tell the jury when you first made his acquaintance."

_Witness._ "It was when I was arrested in the Atlantic Hotel, in
Bridgeport, Connecticut, with my wife."

_Counsel._ "Was she your wife at the time?"

_Witness._ "Yes, sir."

_Counsel._ "She was but sixteen years old?"

_Witness._ "Seventeen, I guess."

_Counsel._ "You were arrested on the ground that you were trying to drug
this sixteen-year-old girl and kidnap her to New York. Do you deny it?"

_Witness_ (doggedly). "I was arrested."

_Counsel_ (sharply). "You know the cause of the arrest to be as I have
stated? Answer yes or no!"

_Witness_ (hesitating). "Yes, sir."

_Counsel._ "You were permitted by the prosecuting attorney, F. A.
Bartlett, to be discharged without trial on your promise to leave the
state, were you not?"

_Witness._ "I don't remember anything of that."

_Counsel._ "Do you deny it?"

_Witness._ "I do."

_Counsel._ "Did you have another young man with you upon that occasion?"

_Witness._ "I did. A college chum."

_Counsel._ "Was he also married to this sixteen-year-old girl?"

_Witness_ (no answer).

_Counsel_ (pointedly at witness). "Was he married to this girl also?"

_Witness._ "Why, no."

_Counsel._ "You say you were married to her. Give me the date of your

_Witness_ (hesitating). "I don't remember the date."

_Counsel._ "How many years ago was it?"

_Witness._ "I don't remember."

_Counsel._ "How many years ago was it?"

_Witness._ "I couldn't say."

_Counsel._ "What is your best memory as to how many years ago it was?"

_Witness._ "I can't recollect."

_Counsel._ "Try to recollect about when you were married."

_Witness._ "I was married twice, civil marriage and church marriage."

_Counsel._ "I am talking about Miss Sadie Cook. When were you married to
Sadie Cook, and where is the marriage recorded?"

_Witness._ "I tell you I don't remember."

_Counsel._ "Try."

_Witness._ "It might be five or six or seven or ten years ago."

_Counsel._ "Then you cannot tell within five years of the time when you
were married, and you are now only twenty-five years old?"

_Witness._ "I cannot."

_Counsel._ "Were you married at fifteen years of age?"

_Witness._ "I don't think I was."

_Counsel._ "You know, do you not, that your marriage was several years
after this arrest in Bridgeport that I have been speaking to you about?"

_Witness._ "I know nothing of the kind."

_Counsel_ (resolutely). "Do you deny it?"

_Witness_ (hesitating). "Well, no, I do not deny it."

_Counsel._ "I hand you now what purports to be the certificate of your
marriage, three years ago. Is the date correct?"

_Witness._ "I never saw it before."

_Counsel._ "Does the certificate correctly state the time and place and
circumstances of your marriage?"

_Witness._ "I refuse to answer the question on the ground that it would
incriminate my wife."

The theory on which the defence was being made was that the witness,
Minnock, had manufactured the story which he had printed in the paper,
and later swore to before the grand jury and at the trial. The effort in
his cross-examination was to show that he was the kind of man who would
manufacture such a story and sell it to the newspapers, and afterward,
when compelled to do so, swear to it in court.

Counsel next called the witness's attention to many facts tending to
show that he had been an eye-witness to adultery in divorce cases, and
on both sides of them, first on one side, then on the other, in the same
case, and that he had been at one time a private detective. Men whom he
had robbed and blackmailed and cheated at cards were called from the
audience, one after another, and he was confronted with questions
referring to these charges, all of which he denied in the presence of
his accusers. The presiding judge having stated to the counsel in the
hearing of the witness that although he allowed the witness to be
brought face to face with his alleged accusers, yet he would allow no
contradictions of the witness on these collateral matters. Minnock's
former defiant demeanor immediately returned.

The next interrogatories put to the witness developed the fact that,
feigning insanity, he had allowed himself to be taken to Bellevue with
the hope of being transferred to Ward's Island, with the intention of
finally being discharged as cured, and then writing sensational
newspaper articles regarding what he had seen while an inmate of the
public insane asylums; that in Bellevue Hospital he had been detected as
a malingerer by one of the attending physicians, Dr. Fitch, and had
been taken before a police magistrate where he had stated in open court
that he had found everything in Bellevue "far better than he had
expected to find it," and that he had "no complaint to make and nothing
to criticise."

The witness's mind was then taken from the main subject by questions
concerning the various conversations had with the different nurses while
in the asylum, all of which conversations he denied. The interrogatories
were put in such a way as to admit of a "yes" or "no" answer only.
Gradually coming nearer to the point desired to be made, the following
questions were asked:--

_Counsel._ "Did the nurse Gordon ask you why you were willing to submit
to confinement as an insane patient, and did you reply that you were a
newspaper man and under contract with a Sunday paper to write up the
methods of the asylum, but that the paper had repudiated the contract?"

_Witness._ "No."

_Counsel._ "Or words to that effect?"

_Witness._ "No."

Counsel. "I am referring to a time subsequent to your discharge from the
asylum, and after you had returned to take away your belongings. Did
you, at that time, tell the nurse Gordon that you had expected to be
able to write an article for which you could get $140?"

_Witness._ "I did not."

_Counsel._ "Did the nurse say to you, 'You got fooled this time, didn't
you?' And did you reply, 'Yes, but I will try to write up something and
see if I can't get square with them!'"

_Witness._ "I have no memory of it."

_Counsel._ "Or words to that effect?"

_Witness._ "I did not."

All that preceded had served only as a veiled introduction to the next
important question.

_Counsel_ (quietly). "At that time, as a matter of fact, did you know
anything you could write about when you got back to the _Herald_

_Witness._ "_I knew there was nothing to write._"

_Counsel._ "Did you know at that time, or have any idea, what you would
write when you got out?"

_Witness._ "Did I at that time know? _Why, I knew there was nothing to

_Counsel_ (walking forward and pointing excitedly at the witness).
"Although you had seen a man choked to death with a sheet on Wednesday
night, you knew on Friday morning that there was nothing you could write

_Witness_ (hesitating). "I didn't know they had killed the man."

_Counsel._ "Although you had seen the patient fall unconscious several
times to the floor after having been choked with the sheet twisted
around his neck, you knew there was nothing to write about?"

_Witness._ "I knew it was my duty to go and see the charity commissioner
and tell him about that."

_Counsel._ "But you were a newspaper reporter in the asylum, for the
purpose of writing up an article. Do you want to take back what you said
a moment ago--that you knew there was nothing to write about?"

_Witness._ "Certainly not. I did not know the man was dead."

_Counsel._ "Did you not testify that the morning after you had seen the
patient choked into unconsciousness, you heard the nurse call up the
morgue to inquire if the autopsy had been made?"

_Witness_ (sheepishly.) "Well, the story that I had the contract for
with the _Herald_ was cancelled."

_Counsel._ "Is it not a fact that within four hours of the time you were
finally discharged from the hospital on Saturday afternoon, you read the
newspaper account of the autopsy, and then immediately wrote your story
of having seen this patient strangled to death and offered it for sale
to the _New York World_?"

_Witness._ "That is right; yes, sir."

_Counsel._ "You say you knew it was your duty to go to the charity
commissioner and tell him what you had seen. Did you go to him?"

_Witness._ "No, not after I found out through reading the autopsy that
the man was killed."

_Counsel._ "Instead, you went to the _World_, and offered them the story
in which you describe the way Hilliard was killed?"

_Witness._ "Yes."

_Counsel._ "And you did this within three or four hours of the time you
read the newspaper account of the autopsy?"

_Witness._ "Yes."

_Counsel._ "The editors of the _World_ refused your story unless you
would put it in the form of an affidavit, did they not?"

_Witness._ "Yes."

_Counsel._ "Did you put it in the form of an affidavit?"

_Witness._ "Yes."

_Counsel._ "And that was the very night that you were discharged from
the hospital?"

_Witness._ "Yes."

_Counsel._ "Every occurrence was then fresh in your mind, was it not?"

_Witness_ (hesitating). "What?"

_Counsel._ "Were the occurrences of the hospital fresh in your mind at
the time?"

_Witness._ "Well, not any fresher then than they are now."

_Counsel._ "As fresh as now?"

_Witness._ "Yes, sir."

_Counsel_ (pausing, looking among his papers, selecting one and walking
up to the witness, handing it to him). "Take this affidavit, made that
Friday night, and sold to the _World_; show me where there is a word in
it about Davis having strangled the Frenchman with a sheet, the way you
have described it here to-day to this jury."

_Witness_ (refusing paper). "No, I don't think that it is there. It is
not necessary for me to look it over."

_Counsel_ (shouting). "Don't _think_! You know that it is not there, do
you not?"

_Witness_ (nervously). "Yes, sir; it is not there."

_Counsel._ "Had you forgotten it when you made that affidavit?"

_Witness._ "Yes, sir."

_Counsel_ (loudly). "You had forgotten it, although only three days
before you had seen a man strangled in your presence, with a sheet
twisted around his throat, and had seen him fall lifeless upon the
floor; you had forgotten it when you described the incident and made the
affidavit about it to the _World_?"

_Witness_ (hesitating). "I made two affidavits. I believe that is in the
second affidavit."

_Counsel._ "Answer my questions, Mr. Minnock. Is there any doubt that
you had forgotten it when you made the first affidavit to the _World_?"

_Witness._ "I had forgotten it."

_Counsel_ (abruptly). "When did you recollect?"

_Witness._ "I recollected it when I made the second affidavit before the

_Counsel._ "And when did you make that?"

_Witness._ "It was a few days afterward, probably the next day or two."

_Counsel_ (looking among his papers, and again walking up to the
witness). "Please take the coroner's affidavit and point out to the jury
where there is a word about a sheet having been used to strangle this

_Witness_ (refusing paper). "Well, it may not be there."

_Counsel._ "Is it there?"

_Witness_ (still refusing paper). "I don't know."

_Counsel._ "Read it, read it carefully."

_Witness_ (reading). "I don't see anything about it."

_Counsel._ "Had you forgotten it at that time as well?"

_Witness_ (in confusion). "I certainly must have."

_Counsel._ "Do you want this jury to believe that, having witnessed this
horrible scene which you have described, you immediately forgot it, and
on two different occasions when you were narrating under oath what took
place in that hospital, you forgot to mention it?"

_Witness._ "It escaped my memory."

_Counsel._ "You have testified as a witness before in this case, have
you not?"

_Witness._ "Yes, sir."

_Counsel._ "Before the coroner?"

_Witness._ "Yes, sir."

_Counsel._ "But this sheet incident escaped your memory then?"

_Witness._ "It did not."

_Counsel_ (taking in his hands the stenographer's minutes of the
coroner's inquest). "Do you not recollect that you testified for two
hours before the coroner without mentioning the sheet incident, and were
then excused and were absent from the court for several days before you
returned and gave the details of the sheet incident?"

_Witness._ "Yes, sir; that is correct."

_Counsel._ "Why did you not give an account of the sheet incident on the
first day of your testimony?"

_Witness._ "Well, it escaped my memory; I forgot it."

_Counsel._ "Do you recollect, before beginning your testimony before the
coroner, you asked to look at the affidavit that you had made for the

_Witness._ "Yes, I had been sick, and I wanted to refresh my memory."

_Counsel._ "Do you mean that this scene that you have described so
glibly to-day had faded out of your mind then, and you wanted your
affidavit to refresh your recollection?"

_Witness._ "No, it had not faded. I merely wanted to refresh my

_Counsel._ "Was it not rather that you had made up the story in your
affidavit, and you wanted the affidavit to refresh your recollection as
to the story you had manufactured?"

_Witness._ "No, sir; that is not true."

The purpose of these questions, and the use made of the answers upon the
argument, is shown by the following extract from the summing up:--

"My point is this, gentlemen of the jury, and it is an unanswerable one
in my judgment, Mr. District Attorney: If Minnock, fresh from the
asylum, forgot this sheet incident when he went to sell his first
newspaper article to the _World_; if he also forgot it when he went to
the coroner two days afterward to make his second affidavit; if he still
forgot it two weeks later when, at the inquest, he testified for two
hours, without mentioning it, and only first recollected it when he was
recalled two days afterward, then there is but one inference to be
drawn, and that is, _that he never saw it, because he could not forget
it if he had ever seen it_! And the important feature is this: he was a
newspaper reporter; he was there, as the district attorney says, 'to
observe what was going on.' He says that he stood by in that part of the
room, pretending to take away the dishes in order to see what was going
on. He was sane, the only sane man there. Now if he did not see it, it
is because it did not take place, and if it did not take place, the
insane men called here as witnesses could not have seen it. Do you see
the point? Can you answer it? Let me put it again. It is not in mortal
mind to believe that this man could have seen such a transaction as he
describes and ever have forgotten it. Forget it when he writes his
article the night he leaves the asylum and sells it to the morning
_World_! Forget it two days afterward when he makes a second important
affidavit! He makes still another statement, and does not mention it,
and even testifies at the coroner's inquest two weeks later, and leaves
it out. Can the human mind draw any other inference from these facts
than that he never saw it--because he could not have forgotten it if he
had ever seen it? If _he_ never saw it, it did not take place. He was on
the spot, sane, and watching everything that went on, _for the very
purpose of reporting it_. Now if this sheet incident did not take place,
the insane men _could not_ have seen it. This disposes not only of
Minnock, but of all the testimony in the People's case. In order to say
by your verdict that that sheet incident took place, you have got to
find something that is contrary to all human experience; that is, that
this man, Minnock, having seen the horrible strangling with the sheet,
as he described, could _possibly_ have immediately forgotten it."

The contents of the two affidavits made to the _World_ and the coroner
were next taken up, and the witness was first asked what the occurrence
really was as he now remembered it. After his answers, his attention was
called to what he said in his affidavits, and upon the differences being
made apparent, he was asked whether what he then swore to, or what he
now swore to, was the actual fact; and if he was now testifying from
what he remembered to have seen, or if he was trying to remember the
facts as he made them up in the affidavit.

_Counsel._ "What was the condition of the Frenchman at supper time? Was
he as gay and chipper as when you said that he had warmed up after he
had been walking around awhile?"

_Witness._ "Yes, sir."

_Counsel._ "But in your affidavit you state that he seemed to be very
feeble at supper. Is that true?"

_Witness._ "Well, yes; he did seem to be feeble."

_Counsel._ "But you said a moment ago that he warmed up and was all
right at supper time."

_Witness._ "Oh, you just led me into that."

_Counsel._ "Well, I won't lead you into anything more. Tell us how he
walked to the table."

_Witness._ "Well, slowly."

_Counsel._ "Do you remember what you said in the affidavit?"

_Witness._ "I certainly do."

_Counsel._ "What did you say?"

_Witness._ "I said he walked in a feeble condition."

_Counsel._ "Are you sure that you said anything in the affidavit about
how he walked at all?"

_Witness._ "I am not sure."

_Counsel._ "The sheet incident, which you have described so graphically,
occurred at what hour on Wednesday afternoon?"

_Witness._ "About six o'clock."

_Counsel._ "Previous to that time, during the afternoon, had there been
any violence shown toward him?"

_Witness._ "Yes; he was shoved down several times by the nurses."

_Counsel._ "You mean they let him fall?"

_Witness._ "Yes, they thought it a very funny thing to let him totter
backward, and to fall down. They then picked him up. His knees seemed to
be kind of muscle-bound, and he tottered back and fell, and they
laughed. This was somewhere around three o'clock in the afternoon."

_Counsel._ "How many times, Mr. Minnock, would you swear that you saw
him fall over backward, and after being picked up by the nurse, let fall

_Witness._ "Four or five times during the afternoon."

_Counsel._ "And would he always fall backward?"

_Witness._ "Yes, sir; he repeated the operation of tottering backward.
He would totter about five feet, and would lose his balance and would
fall over backward."

The witness was led on to describe in detail this process of holding up
the patient, and allowing him to fall backward, and then picking him up
again, in order to make the contrast more apparent with what he had said
on previous occasions and had evidently forgotten.

_Counsel._ "I now read to you from the stenographer's minutes what you
said on this subject in your sworn testimony given at the coroner's
inquest. You were asked, 'Was there any violence inflicted on Wednesday
before dinner time?' And you answered, 'I didn't see any.' You were then
asked if, up to dinner time at six o'clock on Wednesday night, there had
been any violence; and you answered: 'No, sir; no violence since Tuesday
night. There was nothing happened until Wednesday at supper time,
somewhere about six o'clock.' Now what have you to say as to these
different statements, both given under oath, one given at the coroner's
inquest, and the other given here to-day?"

_Witness._ "Well, what I said about violence may have been omitted by
the coroner's stenographer."

_Counsel._ "But did you swear to the answers that I have just read to
you before the coroner?"

_Witness._ "I may have, and I may not have. I don't know."

_Counsel._ "If you swore before the coroner there was no violence, and
nothing happened until Wednesday after supper, did you mean to say it?"

_Witness._ "I don't remember."

_Counsel._ "After hearing read what you swore to at the coroner's
inquest, do you still maintain the truth of what you have sworn to at
this trial, as to seeing the nurse let the patient fall backward four or
five times, and pick him up and laugh at him?"

_Witness._ "I certainly do."

_Counsel._ "I again read you from the coroner's minutes a question asked
you by the coroner himself. Question by the coroner, 'Did you at any
time while in the office or the large room of the asylum see Hilliard
fall or stumble?' Answer, 'No, sir; I never did.' What have you to say
to that?"

_Witness._ "That is correct."

_Counsel._ "Then what becomes of your statement made to the jury but
fifteen minutes ago, that you saw him totter and fall backward several

_Witness._ "It was brought out later on before the coroner."

_Counsel._ "Brought out later on! Let me read to you the next question
put to you before the coroner. Question, 'Did you at _any time_ see him
try to walk or run away and fall?' Answer, 'No, I never saw him fall.'
What have you to say to that?"

_Witness._ "Well, I must have put in about the tottering in my
affidavit, and omitted it later before the coroner."

At the beginning of the cross-examination it had been necessary for the
counsel to fight with the Court over nearly every question asked; and
question after question was ruled out. As the examination proceeded,
however, the Court began to change its attitude entirely toward the
witness. The presiding judge constantly frowned on the witness, kept his
eyes riveted upon him, and finally broke out at this juncture: "Let me
caution you, Mr. Minnock, once for all, you are here to answer counsel's
questions. If you can't answer them, say so; and if you can answer them,
do so; and if you have no recollection, say so."

_Witness._ "Well, your Honor, Mr. ---- has been cross-examining me very
severely about my wife, which he has no right to do."

_Court._ "You have no right to bring that up. He has a perfect right to
cross-examine you."

_Witness_ (losing his temper completely). "That man wouldn't dare to ask
me those questions outside. He knows that he is under the protection of
the court, or I would break his neck."

_Court._ "You are making a poor exhibit of yourself. Answer the
questions, sir."

_Counsel._ "You don't seem to have any memory at all about this
transaction. Are you testifying from memory as to what you saw, or
making up as you go along?"

_Witness_ (no answer).

_Counsel._ "Which is it?"

_Witness_ (doggedly). "I am telling what I saw."

_Counsel._ "Well, listen to this then. You said in your affidavit: 'The
blood was all over the floor. It was covered with Hilliard's blood, and
the scrub woman came Tuesday and Wednesday morning, and washed the blood
away.' Is that right?"

_Witness._ "Yes, sir."

_Counsel._ "Why, I understood you to say that you didn't get up
Wednesday morning until noon. How could you see the scrub woman wash the
blood away?"

_Witness._ "They were at the farther end of the hall. They washed the
whole pavilion. I didn't see them Wednesday morning; it was Tuesday
morning I saw them scrubbing."

_Counsel._ "You seem to have forgotten that Hilliard, the deceased, did
not arrive at the pavilion until Tuesday afternoon at four o'clock. What
have you to say to that?"

_Witness._ "Well, there were other people who got beatings besides him."

_Counsel._ "Then that is what you meant to refer to in your affidavit,
when speaking of Hilliard's blood upon the floor. You meant beatings of
other people?"

_Witness._ "Yes sir--on Tuesday."

The witness was then forced to testify to minor details, which, within
the knowledge of the defence, could be contradicted by a dozen
disinterested witnesses. Such, for instance, as hearing the nurse Davis
call up the morgue, the morning after Hilliard was killed, at least a
dozen times on the telephone, and anxiously inquire what had been
disclosed by the autopsy; whereas, in fact, there was no direct
telephonic communication whatever between the morgue and the insane
pavilion; and the morgue attendants were prepared to swear that no one
had called them up concerning the Hilliard autopsy, and that there were
no inquiries from any source. The witness was next made to testify
affirmatively to minor facts that could be, and were afterward,
contradicted by Dr. Wildman, by Dr. Moore, by Dr. Fitch, by Justice
Hogman, by night nurses Clancy and Gordon, by Mr. Dwyer, Mr. Hayes, Mr.
Fayne, by Gleason the registrar, by Spencer the electrician, by Jackson
the janitor, and by several of the state's own witnesses who were to be
called later.

By this time the witness had begun to flounder helplessly. He
contradicted himself constantly, became red and pale by turns, hesitated
before each answer, at times corrected his answers, at others was silent
and made no answer at all. At the expiration of four hours he left the
witness-stand a thoroughly discredited, haggard, and wretched object.
The court ordered him to return the following day, but he never was seen
again at the trial.

A week later, his foster-mother, when called to the witness-chair by the
defence, handed to the judge a letter received that morning from her
son, who was in Philadelphia (which, however, was not allowed to be
shown to the jury) in which he wrote that he had shaken from his feet
the dust of New York forever, and would never return; that he felt he
had been ruined, and would be arrested for perjury if he came back, and
requested money that he might travel far into the West and commence life
anew. It was altogether the most tragic incident in the experience of
the writer.



It was the cross-examination of a Birmingham attorney, named Jeremiah
Smith, by Sir Alexander Cockburn, then Attorney-General and afterward
Chief Justice of England, in the celebrated trial of William Palmer for
taking the life of John Parsons Cook by poison, that finally turned the
tide, in this closely contested case, against the prisoner, and resulted
in his conviction and execution. An observer of such long experience as
Mr. Justice Stephens said of this cross-examination that "it was
something to be heard and seen, but incapable of being described."

William Palmer at the time of his trial was thirty-one years old. He was
a physician by profession, but had for several years prior to his trial
given up the active practice of medicine and had devoted all his time to
the turf. His victim, John Parsons Cook, was also a young man of decent
family, originally intended for the profession of the law, but after
inheriting some £15,000, also betook himself to the turf. He kept race
horses and betted considerably, and in the course of his operations
became intimate with Palmer. At the time of his acquaintance with Cook,
Palmer had become involved financially through forging the name of his
mother, a woman of considerable property, as indorser of his notes.
These indorsements amounted to the sum of £13,000. He had effected an
insurance upon the life of his wife for £13,000, and the policies of
insurance he had given as collateral on the forged notes. Upon the death
of his wife he was enabled to pay off the first notes, but shortly
issued fresh ones to the amount of £12,500, had them discounted at the
rate of sixty per cent, and gave as new collateral, policies of
insurance of an equal amount upon his brother's life, which policies had
been assigned to himself. Upon his brother's death, there being a year's
interim between the death of his wife and brother, the companies in
which the insurance had been effected declined to pay, and Palmer found
himself confronted with suits upon these forged notes and the exposure
of his forgeries.

It was for the supposed intention of getting possession of Cook's
money and race horses that he took the life of his intimate companion.

The trial was held in the Central Criminal Court, London, May 14, 1856,
Lord Campbell presiding, and has ever since maintained its reputation as
being one of the most learned trials in the history of the criminal
courts of the world.

H. D. Traill, in the _English Illustrated Magazine_, gives a most
graphic account of the incidents during the cross-examination of
Jeremiah Smith.

"'It was the riding that did it,' exclaimed one of the greatest
criminals of the century in extorted admiration of the skill with which
one of the greatest advocates of the century had brought Justice in a
winner by a short head in one of the century's greatest trials. Sir
Alexander Cockburn is said to have been more proud of this tribute from
the eminent sportsman and poisoner whom he hunted to the gallows post,
than of any other of the many triumphs of his brilliant career. And
undoubtedly it has all the ring of one of those utterances which come
straight from the heart and attest their source by taking shape in the
form of words most familiar to the speaker's lips. There is plenty of
evidence to the critical attention with which Mr. William Palmer
observed the jockeyship of the attorney in driving that terribly
exciting race for life.

"There exists, or existed once, a slip of paper about six inches long
by an inch broad--just such a slip, in fact, as a man might tear
irregularly off the top of a sheet of foolscap, which bears this calm
and matter-of-fact legend, more impressive than the most impassioned
prose. 'I suppose you think that last witness did harm.' It is one of
those notes which Palmer subscribed from time to time and turned over to
his counsel to read and, if necessary, reply to. There is no sign of
trembling in the hand that wrote it. Yet it was written--this one--just
at the close of Sir Alexander Cockburn's memorable cross-examination. It
was the conviction of the expert section of the audience that when the
attorney-general resumed his seat, the halter was knotted around the
neck of the prisoner too firmly to be loosed. There is little doubt that
the doomed wretch read as much in the face of his counsel, and that the
outward indifference of the hastily penned inquiry which he flung across
to them must have caused a silent agony of doubt and dread.

"Palmer, of course, was not as well accustomed to observe the manners of
the presiding judge as were the professional spectators of the scene,
but if so, he would have drawn the worst possible augury from Lord
Campbell's increasing politeness to him after this incident in the
trial--a form of demeanor toward a prisoner which always indicated that
in that distinguished judge's opinion, his doom was certain.

"Yet the cross-examination of Mr. Smith, important as its consequences
are said to have been, _might easily be quoted_ as _a very doubtful_
illustration of the value of this formidable engine for the extraction,
or supposed extraction, of the truth.

"Its effect upon the witness himself left nothing to be desired from the
point of view of the operator. No abbreviation, in fact, can give the
effect of it. The witness's efforts to gain time, and his distress as
the various answers were extorted from him by degrees, may be faintly
traced in the report. His face was covered with sweat, and the papers
put into his hands shook and rustled. These papers, it must be admitted,
were some of them of a sufficiently agitating character. Mr. Smith had
had to confess with great reluctance that he had witnessed the
assignment of a policy for £13,000 by Walter to William Palmer, who was
suspected, and indeed as good as known, to have been guilty of murdering
him; he had had to confess that he wrote to an office to effect an
insurance for £10,000 on the life of a groom of Palmer's in receipt of
£1 a week as wages; he had been compelled to admit the self-impeachment
of having tried, after Walter Palmer's death, to get his widow to give
up her claim on the policy. The result was that Lord Campbell, in
summing up, asked the jury whether they could believe a man who so
disgraced himself, in the witness-box. The jury thought they couldn't,
and they didn't. The witness, whose evidence was to the effect that
Palmer was not at his victim's bedside, but some miles away, at a time
when, on the theory of the prosecution, he was substituting poisonous
drugs for the medicine supplied to the sick man by the doctor, was
disbelieved. _Yet it is nevertheless tolerably certain from other
evidence of an unimpeachable kind that Jeremiah Smith was speaking the

The text of the cross-examination that follows is taken from the
unabridged edition of the _Times'_ "Report of the Trial of William
Palmer," containing the shorthand notes taken from day to day, and
published in London in 1856.

_Attorney-General._ "Are you the gentleman who took Mr. Myatt to
Stafford Gaol?"

_Smith._ "I am."

_Attorney-General._ "Have you known Palmer long?"

_Smith._ "I have known him long and very intimately, and have been
employed a good deal as an attorney by Palmer and his family."

_Attorney-General._ "In December, 1854, did he apply to you to attest a
proposal of his brother, Walter Palmer, for £13,000 in the Solicitors
and General Insurance Office?"

_Smith._ "I cannot recollect; if you will let me see the document, I
will tell you."

_Attorney-General._ "Will you swear that you were not applied to?"

_Smith._ "I will not swear either that I was not applied to for that
purpose or that I was. If you will let me see the document, I shall
recognize my writing at once."

_Attorney-General._ "In January, 1855, were you applied to by Palmer to
attest a proposal of his brother for £13,000 in the Prince of Wales

_Smith._ "I don't recollect."

_Attorney-General._ "Don't recollect! Why, £13,000 was a large sum for a
man like Walter Palmer, wasn't it, who hadn't a shilling in the world?"

_Smith._ "Oh, he had money, because I know that he lived retired and
carried on no business."

_Attorney-General._ "Didn't you know that he was an uncertified

_Smith._ "I know that he had been a bankrupt some years before, but I
did not know that he was an uncertified bankrupt. I know that he had an
allowance from his mother, but I do not know whether he had money from
any other source. I believe that his brother, William [the prisoner],
gave him money at different times."

_Attorney-General._ "Where, in the course of 1854 and 1855, were you
living--in Rugeley?"

_Smith._ "In 1854 I think I resided partly with William Palmer, and
sometimes at his mother's."

_Attorney-General._ "Did you sometimes sleep at his mother's?"

_Smith._ "Yes."

_Attorney-General._ "When you did that, where did you sleep?"

_Smith._ "In a room."

_Attorney-General._ "Did you sleep in his mother's room--on your oath,
were you not intimate with her--you know well enough what I mean?"

_Smith._ "I had no other intimacy, Mr. Attorney, than a proper

_Attorney-General._ "How often did you sleep at her house, having an
establishment of your own at Rugeley?"

_Smith._ "Frequently. Two or three times a week."

_Attorney-General._ "Are you a single or a married man?"

_Smith._ "A single man."

_Attorney-General._ "How long did that practice of sleeping two or three
times a week at Mrs. Palmer's continue?"

_Smith._ "For several years."

_Attorney-General._ "Had you your own lodgings at Rugeley at the time?"

_Smith._ "Yes, all the time."

_Attorney-General._ "How far were your lodgings from Mrs. Palmer's

_Smith._ "I should say nearly quarter of a mile."

_Attorney-General._ "Explain how it happened that you, having your own
place of abode within a quarter of a mile, slept two or three times a
week at Mrs. Palmer's."

_Smith._ "Sometimes her son Joseph or other members of her family were
on a visit to her, and I went to see them."

_Attorney-General._ "And when you went to see those members of her
family, was it too far for you to return a quarter of a mile in the

_Smith._ "Why, we used to play a game of cards, and have a glass of
gin-and-water, and smoke a pipe perhaps; and then they said, 'It is
late--you had better stop all night;' and I did. There was no particular
reason why I did not go home that I know of."

_Attorney-General._ "Did that go on for three or four years?"

_Smith._ "Yes; and I sometimes used to stop there when there was nobody
there at all--when they were all away from home, the mother and all."

_Attorney-General._ "And you have slept there when the sons were not
there and the mother was?"

_Smith._ "Yes."

_Attorney-General._ "How often did that happen?"

_Smith._ "Sometimes for two or three nights a week, for some months at
a time, and then perhaps I would not go near the house for a month."

_Attorney-General._ "What did you stop for on those nights when the sons
were not there; there was no one to smoke and drink with then, and you
might have gone home, might you not?"

_Smith._ "Yes; but I did not."

_Attorney-General._ "Do you mean to say, on your oath, that there was
nothing but a proper intimacy between you and Mrs. Palmer?"

_Smith._ "I do."

_Attorney-General._ "Now I will turn to another subject. Were you called
upon to attest another proposal for £13,000 by Walter Palmer in the
Universal Office?"

_Smith._ "I cannot say; if you will let me see the proposal, I shall

_Attorney-General._ "I ask you, sir, as an attorney and a man of
business, whether you cannot tell me whether you were applied to by
William Palmer to attest a proposal for an assurance for £13,000 on the
life of Walter Palmer?"

_Smith._ "I say that I do not recollect it. If I could see any document
on the subject, I daresay I should remember it."

_Attorney-General._ "Do you remember getting a £5 note for attesting an
assignment by Walter Palmer to his brother of such a policy?"

_Smith._ "Perhaps I might. I don't recollect positively."

_Attorney-General_ (handing a document to witness). "Is that your

_Smith._ "It is very like my signature."

_Attorney-General._ "Have you any doubt about it?"

_Smith_ (after considerable hesitation). "I have some doubt."

_Attorney-General._ "Read the document, and tell me, on your oath,
whether it is your signature."

_Smith._ "I have some doubt whether it is mine."

_Attorney-General._ "Read the document, sir. Was it prepared in your

_Smith._ "It was not."

_Attorney-General._ "I will have an answer from you on your oath one way
or another. Isn't that your handwriting?"

_Smith._ "I believe that it is not my handwriting. I think that it is a
very clever imitation of it."

_Attorney-General._ "Will you swear that it is not?"

_Smith._ "I will. I think that it is a very good imitation of my

_Baron Alderson._ "Did you ever make such an attestation?"

_Smith._ "I don't recollect, my Lord."

_Attorney-General._ "Look at the other signature there, 'Walter
Palmer,'--is that his signature?"

_Smith._ "I believe that is Walter Palmer's."

_Attorney-General._ "Look at the attestation and the words 'signed,
sealed, and delivered'; are they in Mr. Pratt's handwriting?"

_Smith._ "They are."

_Attorney-General._ "Did you receive that from Mr. Pratt?"

_Smith._ "Most likely I did; but I can't swear that I did. It might have
been sent to William Palmer."

_Attorney-General._ "Did you receive it from William Palmer?"

_Smith._ "I don't know. Very likely I did."

_Attorney-General._ "Did William Palmer give you that document?"

_Smith._ "I have no doubt he did."

_Attorney-General._ "If that be the document he gave you, and those are
the signatures of Walter Palmer and of Pratt, is not the other signature

_Smith._ "I'll tell you, Mr. Attorney--"

_Attorney-General._ "Don't 'Mr. Attorney' me, sir! Answer my question.
Isn't that your handwriting?"

_Smith._ "I believe it not to be."

_Attorney-General._ "Will you swear that it isn't?"

_Smith._ "I believe that it is not."

_Attorney-General._ "Did you apply to the Midland Counties Insurance
Office in October, 1855, to be appointed their agent at Rugeley?"

_Smith._ "I think I did."

_Attorney-General._ "Did you send them a proposal on the life of Bates
for £10,000--you yourself?"

_Smith._ "I did."

_Attorney-General._ "Did William Palmer apply to you to send that

_Smith._ "Bates and Palmer came together to my office with a prospectus,
and asked me if I knew whether there was any agent for that company in
Rugeley. I told them I had never heard of one, and they then asked me if
I would write and get the appointment, because Bates wanted to raise
some money."

_Attorney-General._ "Did you send to the Midland Office and get
appointed as their agent in Rugeley, in order to effect that £10,000
insurance on Bates's life?"

_Smith._ "I did."

_Attorney-General._ "Was Bates at that time superintending William
Palmer's stud and stables?"

_Smith._ "He was."

_Attorney-General._ "At a salary of £1 a week?"

_Smith._ "I can't tell his salary."

_Attorney-General._ "After that did you go to the widow of Walter Palmer
to get her to give up her claim on the policy of her husband?"

_Smith._ "I did."

_Attorney-General._ "Where was she at that time?"

_Smith._ "At Liverpool."

_Attorney-General._ "Did you receive a document from Pratt to take to

_Smith._ "William Palmer gave me one which had been directed to him."

_Attorney-General._ "Did the widow refuse?"

_Smith._ "She said she should like her solicitor to see it; and I said,
'By all means.'"

_Attorney-General._ "Of course! Didn't she refuse to do it--didn't you
bring it back?"

_Smith._ "I brought it back as I had no instructions to leave it."

_Attorney-General._ "Didn't she say that she understood from her husband
that the insurance was for £10,000?"

_Mr. Serjeant Shee_ objected to this question. What passed between the
widow and witness could be no evidence against the prisoner.

The _Attorney-General_ said that the question was intended to affect the
credit of the witness, and with that view it was most important.

The court ruled that the question could not be put.

_Attorney-General._ "Do you know that Walter Palmer obtained nothing for
making that assignment?"

_Smith._ "I believe that he ultimately did get something for it."

_Attorney-General._ "Don't you know that what he got was a bill for

_Smith._ "Yes; and he had a house furnished for him."

_Attorney-General._ "Don't you know that he got a bill for £200?"

_Smith._ "Yes."

_Attorney-General._ "And don't you know that that bill was never paid?"

_Smith._ "No, I do not."

_Attorney-General._ "Now, I'll refresh your memory a little with regard
to those proposals [handing witness a document]. Look at that, and tell
me whether it is in your handwriting."

_Smith._ "It is."

_Attorney-General._ "Refreshing your memory with that, I ask you were
you not applied to by William Palmer in December, 1854, to attest a
proposal on the life of his brother, Walter, for £13,000 in the
Solicitors and General Insurance Office?"

_Smith._ "I might have been."

_Attorney-General._ "Were you or were you not, sir? Look at that
document, and say have you any doubt upon the subject?"

_Smith._ "I do not like to speak from memory with reference to such

_Attorney-General._ "No; but not speaking from memory in an abstract
sense, but having your memory refreshed by a perusal of that document,
have you any doubt that you were applied to?"

_Smith._ "I have no doubt that I might have been applied to."

_Attorney-General._ "Have you any doubt that in January, 1855, you were
called on by William Palmer to attest another proposal for £13,000 on
his brother's life in another office? Look at that document and tell

_Smith._ "I see the paper, but I don't know; I might have signed it in

_Attorney-General._ "Do you usually sign attestations of this nature in

_Smith._ "I have some doubt whether I did not sign several of them in

_Attorney-General._ "On your oath, looking at that document, don't you
know that William Palmer applied to you to attest that proposal upon his
brother's life for £13,000?"

_Smith._ "He did apply to me to attest proposals in some offices."

_Attorney-General._ "Were they for large amounts?"

_Smith._ "One was for £13,000."

_Attorney-General._ "Were you applied to to attest another for the like
sum in the Universal Office?"

_Smith._ "I might be."

_Attorney-General._ "They were made much about the same time, were they
not? You did not wait for the answers to come back to the first
application before you made the second?"

_Smith._ "I do not know that any answers were returned at all."

_Attorney-General._ "Will you swear that you were not present when
Walter Palmer executed the deed assigning the policy upon his life to
his brother, William Palmer? Now, be careful, Mr. Smith, for depend upon
it you shall hear of this again if you are not."

_Smith._ "I will not swear that I was, I think I was not. I am not quite

(Very few of the answers to these questions of the Attorney-General were
given without considerable hesitation, and the witness appeared to labor
under a sense of embarrassment which left a decidedly unfavorable
impression upon the minds of the audience.)

_Attorney-General._ "Do you know that the £200 bill was given for the
purpose of enabling William Palmer to make up a sum of £500?"

_Smith._ "I believe it was not; for Cook received absolutely from me
£200. If I am not mistaken, he took it with him to Shrewsbury races--not
the last races."

_Attorney-General._ "In whose favor was the bill drawn?"

_Smith._ "I think in favor of William Palmer. I don't know what became
of it. I have never seen it since. I cannot state with certainty who saw
me on the Monday; but I called at the Talbot Arms, and went into Cook's
room. One of the servants gave me a candle. As well as I can remember,
the servant who did so was either Bond, Mills, or Lavinia Barnes, I
can't say which."



One of the most recent cross-examinations to be made the subject of
appeal to the Supreme Court General Term and the New York Court of
Appeals was the cross-examination of Russell Sage by Mr. Joseph H.
Choate, in the famous suit brought against the former by William R.
Laidlaw. Sage was defended by the late Edwin C. James, and Mr. Choate
appeared for the plaintiff, Mr. Laidlaw.

On the fourth day of December, 1891, a stranger by the name of Norcross
came to Russell Sage's New York office and sent a message to him that he
wanted to see him on important business, and that he had a letter of
introduction from Mr. John Rockefeller. Mr. Sage left his private
office, and going up to Norcross, was handed an open letter which read,
"This carpet-bag I hold in my hand contains ten pounds of dynamite, and
if I drop this bag on the floor it will destroy this building in ruins
and kill every human being in it. I demand twelve hundred thousand
dollars, or I will drop it. Will you give it? Yes or no?"

Mr. Sage read the letter, handed it back to Norcross, and suggested that
he had a gentleman waiting for him in his private office, and could be
through his business in a couple of minutes when he would give the
matter his attention.

Norcross responded: "Then you decline my proposition? Will you give it
to me? Yes or no?" Sage explained again why he would have to postpone
giving it to him for two or three minutes to get rid of some one in his
private office, and just at this juncture Mr. Laidlaw entered the
office, saw Norcross and Sage without hearing the conversation, and
waited in the anteroom until Sage should be disengaged. As he waited,
Sage edged toward him and partly seating himself upon the table near Mr.
Laidlaw, and without addressing him, took him by the left hand as if to
shake hands with him, but with both his own hands, and drew Mr. Laidlaw
almost imperceptibly around between him and Norcross. As he did so, he
said to Norcross, "If you cannot trust me, how can you expect me to
trust you?"

With that there was a terrible explosion. Norcross himself was blown
to pieces and instantly killed. Mr. Laidlaw found himself on the floor
on top of Russell Sage. He was seriously injured, and later brought suit
against Mr. Sage for damages upon the ground that he had purposely made
a shield of his body from the expected explosion. Mr. Sage denied that
he had made a shield of Laidlaw or that he had taken him by the hand or
altered his own position so as to bring Laidlaw between him and the

The case was tried four times. It was dismissed by Mr. Justice Andrews,
and upon appeal the judgment was reversed. On the second trial before
Mr. Justice Patterson the jury rendered a verdict of $25,000 in favor of
Mr. Laidlaw. On appeal this judgment in turn was reversed. On a third
trial, also before Mr. Justice Patterson, the jury disagreed; and on the
fourth trial before Mr. Justice Ingraham the jury rendered a verdict in
favor of Mr. Laidlaw of $40,000, which judgment was sustained by the
General Term of the Supreme Court, but subsequently reversed by the
Court of Appeals.

Exception on this appeal was taken especially to the method used in the
cross-examination of Mr. Sage by Mr. Choate. Thus the cross-examination
is interesting, as an instance of what the New York Court of Appeals has
decided to be an abuse of cross-examination into which, through their
zeal, even eminent counsel are sometimes led, and to which I have
referred in a previous chapter. It also shows to what lengths Mr. Choate
was permitted to go upon the pretext of testing the witness's memory.

It was claimed by Mr. Sage's counsel upon the appeal that "the right of
cross-examination was abused in this case to such an extent as to
require the reversal of this monstrous judgment, which is plainly the
precipitation and product of that abuse." And the Court of Appeals
unanimously took this view of the matter.

The portions of the cross-examination that were especially excepted to
were the rejected jurors' conversation with Mr. Sage; the defendant's
lack of sympathy for the plaintiff; the article in the _New York World_;
the defendant's omission to give warning of the impending explosion, and
the defendant's wealth and the extent and character of his business.

_Mr. Choate._ "I hope you are very well this morning, Mr. Sage?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "Do you remember swearing to the answer in this case?"

_Mr. Sage._ "I didn't hear you, sir."

_Mr. Choate._ "Which is your best ear?"

_Mr. Sage._ "This."

_Mr. Choate._ "Do you remember swearing to the answer in this case?"

_Mr. Sage._ "I do."

_Mr. Choate._ "Who prepared it for you?"

_Mr. Sage._ "It was prepared by my counsel."

_Mr. Choate._ "Counsel in whom you have every confidence?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "Prepared after you had given a careful statement of your
case to them?"

_Mr. Sage._ "Such statement as I thought necessary."

_Mr. Choate._ "Did you mean to conceal anything from them?"

_Mr. Sage._ "No, sir."

_Mr. Choate._ "Did you read the complaint over with your counsel before
you swore to the answer?"

_Mr. Sage._ "I presume I did."

_Mr. Choate._ "Just imagine you were down at the Stock Exchange now, and
speak loud enough so that gentleman can hear you."

_Mr. Sage._ "I will endeavor to."

_Mr. Choate._ "Did you read your answer before you swore to it?"

_Mr. Sage._ "I did, sir."

_Mr. Choate._ "It was true, then, was it not?"

_Mr. Sage._ "I believed it to be so."

_Mr. Choate._ "I call your attention to a statement made in the answer."
(Mr. Choate here read from Mr. Sage's answer in which he swore that he
was in conversation with Mr. Norcross while Mr. Laidlaw was in the
office, Mr. Sage having testified differently the day before.) "Was that

_Mr. Sage._ "I don't know. I didn't catch it."

_Mr. Choate._ "I didn't want you to catch it. I wanted you to answer it.
You observe, do you not, that the answer says that the plaintiff Laidlaw
was in your office while you were conversing with the stranger?"

_Mr. Sage._ "I observe that, but I want to state the fact as I did

_Mr. Choate._ "Answer my question. Did you observe it?"

_Mr. Sage._ "I did."

_Mr. Choate._ "Put down your fist and answer my question."

_Mr. Sage._ "I answered it."

_Mr. Choate._ "I think we will get along as soon as you answer my
questions instead of making speeches. Did you observe that your answer
states that before Laidlaw was in the office, and while you were
conversing with the stranger, the stranger had already handed you a note
demanding money?"

_Mr. Sage._ "He had done no such thing."

_Mr. Choate._ "Do you observe that your answer states that?"

_Mr. Sage._ "Your reading states it so, but the fact is as I have stated

_Mr. Choate._ "Was not your answer true as you swore to it?"

_Mr. Sage._ "No, sir; not on your interpretation."

_Mr. Choate._ "How came you to swear to it, if it is not true?"

_Mr. Sage._ "I suppose that was prepared afterward by counsel, as you
prepare papers."

_Mr. Choate._ "I never prepare papers. What are you talking about?"

_Mr. Sage._ "You have the reputation of preparing papers."

_Mr. Choate._ "Do you mean that your lawyers distorted the facts from
what you stated?"

_Mr. Sage._ "I suppose they prepared the papers in their usual form."

_Mr. Choate._ "In the usual form? Was there ever any usual form for a
case like this?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "Did you ever know of such a case before?"

_Mr. Sage._ "No, sir."

(Mr. Choate then pursued this inquiry, in various forms, for at least
one hundred questions more, and getting no satisfactory answer, he
continued, "We will drop the subject and go to something else.")

_Mr. Choate._ "Since Mr. Laidlaw made this claim against you, you have
been very hostile against him, have you not?"

_Mr. Sage._ "No, sir, not hostile."

_Mr. Choate._ "Have you not called him all sorts of bad names?"

_Mr. Sage._ "I said he did not tell the truth."

_Mr. Choate._ "Have you denounced him as a blackmailer? When did you do

_Mr. Sage._ "I might have said that a man who would persevere in making
a statement that there was not a word of truth in, and demanding a sum
of money--I don't know what you call it. Call it what you please."

_Mr. Choate._ "Did you not say that you would see Laidlaw a tramp before
he would get through with this case?"

_Mr. Sage._ "I have no recollection of any such thing."

_Mr. Choate._ "Will you swear you didn't?"

_Mr. Sage._ "I won't swear. I might."

_Mr. Choate._ "What?"

_Mr. Sage._ "I won't testify to what I have said."

_Mr. Choate._ "I want you to say whether you will swear that you said
that you would see Laidlaw a tramp before he got through."

_Mr. Sage._ "I don't know."

_Mr. Choate._ "Do you not know that when the last juror was excused from
the jury-box, or discharged, he stated in the presence of the court and
the other jurymen that after the verdict rendered by the former jury in
this case against you, Mrs. Sage went to him at Tiffany's and stated
that the verdict was a great outrage, and that Mr. Sage would never pay
a cent?" (This question was bitterly objected to by Mr. James, but
allowed by the court.)

_Mr. Sage._ "I want to state right here, if you will permit--"

_Mr. Choate._ "The first business is to answer this question."

_Mr. Sage._ "I don't know it. I know that Mrs. Sage denied ever having
said anything of the kind."

_Mr. Choate._ "You think the juror told a falsehood?"

_Mr. Sage._ "Mrs. Sage has no recollection of having said that."

_Mr. Choate._ "Did you say to anybody that it was an outrage?"

_Mr. Sage._ "I have no recollection. I think it is the greatest outrage
that was ever attempted by a respectable lawyer."

_Mr. Choate._ "Did you not say that you would spend $100,000 dollars in
defending this case rather than pay a cent to Laidlaw?"

_Mr. Sage._ "I have great confidence in the courts of this state and
the United States, and I am fighting for other people besides myself,
and I propose to have this case settled by the highest courts."

_Mr. Choate._ "No matter what this jury says?"

_Mr. Sage._ "I have great respect for them that they will decide the
case rightly. I want to know if a man can come into my office, and
because a tramp drops in there and an accident happens, and an injury
done, I am responsible for that?"

_Mr. Choate._ "These harangues of yours take a great deal of time. I ask
you whether or not you knew that Laidlaw at the time of this accident
had been very badly hurt?"

_Mr. Sage._ "Yes, sir; I knew he had been."

_Mr. Choate._ "Do not you know he was laid up in the hospital helpless?"

_Mr. Sage._ "I understand he was. Yes, sir."

_Mr. Choate._ "Did it ever occur to you to see what you could do for

_Mr. Sage._ "Yes, sir. I sent my brother-in-law to inquire after him

_Mr. Choate._ "Did you visit him yourself?"

_Mr. Sage._ "I did not."

_Mr. Choate._ "Did you do anything to relieve his sufferings?"

_Mr. Sage._ "I was not called upon to do anything of the kind."

_Mr. Choate._ "I did not ask you whether you were called upon. I asked
whether you did?"

_Mr. Sage._ "I did not."

_Mr. Choate._ "Did not you refrain from going to see him because you
were afraid if you did he would make a claim upon you?"

_Mr. Sage._ "No, sir."

_Mr. Choate._ "Did you care whether he was going to get cured or not?"

_Mr. Sage._ "It is an outrage to ask such a question."

_Mr. Choate._ "Did you have a grandnephew, Chapin, at this time?"

_Mr. Sage._ "Yes."

_Mr. Choate._ "Was he assistant editor of the _World_ at that time?"

_Mr. Sage._ "Yes."

_Mr. Choate._ "Shortly after the explosion, did he come to see you and
have a chat with you?"

_Mr. Sage._ "Yes."

_Mr. Choate._ "Did you afterward read an article published in the _New
York World_, headed, 'A Chat with Russell Sage,' and giving an interview
with you?"

_Mr. Sage._ "Yes."

_Mr. Choate._ "When you read in that article: 'He looks as vigorous as
at any time before the time of the assassination. His face bears almost
no marks of the glass that had got into it after the explosion. It was
clean shaven; in fact, Mr. Sage had arisen yesterday morning and shaved
himself,' did that accord with your recollection at the time you read

_Mr. Sage._ "No, sir; it did not. I have stated it was a gross

_Mr. Choate._ "When the article continued, 'The only thing that
impressed one was that there was a face of an old man, hearty and
robust, tenacious of life and good for many years.' Did that accord with
your recollection at the time?"

_Mr. Sage._ "No, sir; it was an exaggeration. I was very badly scarred
all over my face."

_Mr. Choate._ "When you read in that article: 'It was more surprising
though, when Mr. Sage arose, and helping himself up at full length,
exhibited all his accustomed power of personality. He was like a warrior
after battle, a warrior who has come from the thick of the fight,
covered with the dust of conflict, yet without a hurt to body or limb.'
Did that accord when you read it with your then present recollection?"

_Mr. Sage._ "No, sir, it did not. This is the third time you have read
those articles to the jury in this case; it is like the Fourth of July
oration or the Declaration of Independence."

(Mr. Choate continued and was allowed to read from this newspaper
article, although his questions were constantly and urgently objected to
on the part of the defence, and although Mr. Sage said that he did not
read half the article "because it was an exaggerated statement from
beginning to end, as most paper interviews are." Mr. Choate here went
into an exhaustive examination as to the details of the accident,
comparing the witness's statements at previous trials with the
statements at this trial, and then continued:--

_Mr. Choate._ "Everything you did after you once appreciated the danger
you were in, having read the threat contained in the letter the stranger
handed you, was to gain time, was it not?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "You knew at that time, did you not, that Laidlaw and
Norcross were in the room? Why did you not tell them to step into your
private room?"

_Mr. Sage._ "I will tell you very frankly it would have been almost
certain death to six or seven men. There were three other men in that
room with only board partitions between. It would have infuriated the
stranger, and would have made him disregard me and drop the bag."

_Mr. Choate._ "Did you think of the danger that Laidlaw and Norcross
were in?"

_Mr. Sage._ "No more than the other clerks. We were all alike."

_Mr. Choate._ "And the reason you did not tell them to go into the other
room was that they would even then not be out of danger?"

_Mr. Sage._ "I thought it would displease Norcross, and show that I was
trying to do something to head him off."

_Mr. Choate._ "And he would allow the bag to drop?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "And kill you?"

_Mr. Sage._ "Kill me and kill the whole of us."

_Mr. Choate._ "What is your business?"

_Mr. Sage._ "My business is banker and broker."

_Mr. Choate._ "Why do you call yourself a banker?"

_Mr. Sage._ "Because I buy stock and discount paper and make loans."

_Mr. Choate._ "You are a money lender, are you not?"

_Mr. Sage._ "Sometimes I have money to loan."

_Mr. Choate._ "At various rates of interest?"

_Mr. Sage._ "Sometimes."

_Mr. Choate._ "Varying from six to sixty per cent?"

_Mr. Sage._ "Oh, no."

_Mr. Choate._ "What is the other part of your business?"

_Mr. Sage._ "My business is operating railroads."

_Mr. Choate._ "How many railroads do you operate?"

These questions were strenuously objected to, whereupon Mr. Choate said
to the court, "I think I can show that this man has so many things in
his head, that he is so full of affairs, that he is not a competent
witness at any time to any transaction."

_Mr. Sage._ "I am operating two."

_Mr. Choate._ "Are they large railroads or horse railroads?"

_Mr. Sage._ "Well, one of them is a large one."

_Mr. Choate._ "You help run several banks, do you not?"

_Mr. Sage._ "I am not running any banks, only a director."

_Mr. Choate._ "Are you a director in two banks?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "And trust companies?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "In the Manhattan Elevated R. R.?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "In the Western Union?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "In the Missouri Pacific?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "In the Union Pacific?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "This stock ticker that stood by the desk in the adjoining
room, did you keep run of it yourself?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "You take care of your own estate besides, do you not?"

_Mr. Sage._ "Yes, sir."

_Mr. Choate._ "That took a good deal of time?"

_Mr. Sage._ "It took some time."

_Mr. Choate._ "How much time did that occupy?"

_Mr. Sage._ "I have my assistants, my clerks, the same as you have in
your office."

_Mr. Choate._ "You loan money, you manage these railroads, banks, trust
companies, and the other affairs that you have mentioned. Did you not
have dealings in stocks?"

_Mr. Sage._ "Oh, I buy and sell securities occasionally."

_Mr. Choate._ "Do you not deal in puts and calls and straddles?"

_Mr. Sage._ "I have in years gone by."

_Mr. Choate._ "These affairs take your whole time, do they not?"

_Mr. Sage._ "No, sir; I have leisure. I do not devote all my time to

_Mr. Choate._ "I think that is all."




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Transcriber's Notes

    Punctuation has been standardized.
    Page 017: Both "retrial" and "re-trial" are used.
    Page 280: Unmatched left parenthesis: (Mr. Choate continued
    Page 215: The title of Chapter VIII does not match the title
              in the Table of Contents.

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