David Paul Brown, a very able nisi prius lawyer of great
experience at the Philadelphia Bar, many years ago condensed
his experiences into eighteen paragraphs which he 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 “contain so many useful and valuable
suggestions that it is well to reprint them here for the benefit
of the student.
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 crossexamination, --- 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 result.
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 answer
Cross-examination
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 d 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 expectations.
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 conflict.
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 crossexamination 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.”
Print Page
experience at the Philadelphia Bar, many years ago condensed
his experiences into eighteen paragraphs which he 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 “contain so many useful and valuable
suggestions that it is well to reprint them here for the benefit
of the student.
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 crossexamination, --- 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 result.
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 answer
Cross-examination
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 d 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 expectations.
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 conflict.
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 crossexamination 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.”
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