You May Cross-Examine

YOU MAY CROSS-EXAMINE 1 THIS BOOK IS DEDICATED WITH FILIAL AFFECTION TO A COUPLE OF LITTLE OLD LADIES CONTENTS CHAPTER BACK I IMPORTANCE 1 II PREPARATION 11 III SCOPE 47 IV CONDUCT 57 V EXPERTS 78 VI WOMEN 100 VII PSYCHOLOGICAL 114 VIII RE-DIRECT 152 IX ANECDOTAL 164 BIBLIOGRAPHY 183 TABLE OF CASES 187 INDEX 189 YOU MAY CROSS-EXAMINE CHAPTER I IMPORTANCE EXAMINING CROSS-EXAMINATION JOHN SMITH sits complacently on the witness stand. Under the kindly direction of friendly counsel, he tells the jury confidently and easily that he saw Mr. Smithers in his pajamas making love to his deshabille secretary. There seems no doubt, from the answers he was coached to give, that Mrs. Smithers is a maligned woman who has been grievously sinned against. The jury leans forward sympathetically. The judge smiles down be nignly on Smith officially sanctioning his answers with friendly nods. His own counsel beams confident ap proval. Gods in his heaven alls right with the world. Suddenly, friendly counsel completes his direct ex amination. With a casual wave of his hand he turns to the opposing lawyer and says, You may cross examine Counsel advances menacingly on John Smith and transfixes him with beady eye and angry glare. The complacency displayed by John Smith van ishes. A cold sweat breaks out on his brow. He thinks he sees the faces of the jury become a collective leer of skepticism. The expression of the judge seems to change to one of suspicion and distrust. Poor Smith glances helplessly toward his lawyer for encourage 2 YOU MAY CROSS-EXAMINE merit and guidance, but that gentleman has seated himself indifferently at the table and has sunk his nose into an all-absorbing sheaf of notes. Immediately, Smith imagines himself a hapless victim of a cruel and searching inquisition that is going to force him to re late, in spite of what he knows to be the truth, that Mr. Smithers was not in pajamas, that he was not with his secretary and that, in reality, it had not been Mr. Smithers at all. Unconsciously the witness imagines that all the dirty linen of his past life is going to be mercilessly exhibited to the jury and to a courtroom crowded with morbid sensation-seekers. John Smiths troubles have begun. The distress of John Smith or of any witness in his predicament, may be accounted for by the fact that the layman is usually a stranger in court. The sedate course of his life has been interrupted only rarely by court appearances as a witness. His knowledge of court proceedings, and especially of cross-examination, has been gained from lurid accounts of grilling tests of the knowledge of a witness and gruelling cross examinations that luckless witnesses have undergone in reported trials. The newspaper is the only legal text-book of the lay-witness. With this background, cross-examination has become synonymous to Inquisi tion in the mind of the witness. It seems to him that lawyers use cross-examination to illustrate the obvi ous, explain the evident, and expatiate on the common place. The layman does not realize that, as many lawyers have pointed out, the true object of cross-examination is to demonstrate which side is most probably right in IMPORTANCE 3 its contentions, to add purposely or inadvertently omitted facts, to impeach a lying witness and, above all, to bring out the truth as it is interpreted by the cross-examining lawyer. When properly used, cross examination is not a vehiclefor obtaining free, sensa tional publicity for lawyers. Nor is it a legal cudgel for browbeating timid witnesses. But it is, technically speaking, a conditioning device an essential piece of legal apparatus which is most useful in establishing facts in a court of law. However, by its very nature, cross-examination pro vides dramatic entertainment to the onlooker, thrill ing sensations to those courtroom fans who avidly seek them, tragedy and, of course, the ever-present element of humor...