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Art of Cross-Examination

<h2>CHAPTER V</h2> <h3>CROSS-EXAMINATION OF EXPERTS</h3> 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. [82] 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[83] 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[84] 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 apoplexy. 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[85] 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—which—would—lead—me—to—change—my[86]— opinion—as—it—is—expressed—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[87] would cause me to alter the opinion expressed in my death certificate." 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 death. 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,[88] 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[89] 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 surgeons?" [90] 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 practitioner." 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?" [91] 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 circumstance." 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 hospitals." 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?" [92] 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 leg." Counsel (astonished). "What do you say, doctor?" [93] 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 leg." 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,[94] 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. [95] 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." [96] 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 conscientiously." 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[97] 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. [98] 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[99] 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 pens?" 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[100] 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 Noeme." District Attorney. "Please unfold the second letter and read the signature." Witness (reading). "William Henriques." District Attorney. "Now the third, please." Witness (hesitating and reading with much embarrassment). "Frank Ellison!"[10] The alleged compromising letters were never read to the jury. <hr class="chap" /> [103] <div style="break-after:column;"></div>

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