The Art of Cross-Examination / With the Cross-Examinations of Important Witnesses in Some Celebrated Cases

by Francis L. Wellman

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 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, 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.