Tuesday, July 19, 2016

Art of Cross Examination

This is the ninth post of the series 'LegalTrek'. The last post was 'Leibowitz - The First Case' and this post is about importance of cross examination, a good book on the same and how Samuel Leibowitz used it in a case. 

How I Became A Lawyer।। Allahabad High Court Is Born।। Lucknow Bench - Historical Necessity।। Introduction to Setalvad।। Benches and The Law Commission।। Court of Appeal – Not A Good Idea: Some Suggestions।। Courtroom - Finest Legal Biography।।Leibowitz - The First Case।। Art of Cross Examination।।

Cross examination is most important tool for the trial court lawyer. There are two fundamental rules regarding the same: never  ask a witness a question on cross-examination unless you know the answer to it; and you should know, when to stop, when not to ask a question.

'The Art of Cross Examination' by Francis L Wellman is a classic on the subject. I read it, while I was a student and recommend for every student aspiring to be a lawyer. In the book 'Courtroom', there is a interesting case of People vs. Peter Brown, a battle of wits between Samuel Leibowitz and the District Attorney and how cross examination was used.

 Peter Brown was a police officer. He was being prosecuted for taking undue advantage of Rita Antonina.  Both had different stories about the incident.

According to Peter Brown: he was investigating houses for prostitution; one afternoon he was passing by a street; Rita Antonina smiled at him from the window and beckoned him to come up; he went up but made an appointment for the next day.

The next day, he went up at the fixed time and paid her a marked note. She took the money, dropped her dress, and was fully naked. It is at this stage Brown revealed his identity. He asked her to dress up and go with him to the police station. He went to the window and signalled his colleagues to come in.

Rita Antonina dressed up, tore the note to pieces, and flushed it down the drain.

According to Rita Antonina: she was a happily married housewife; she never undressed as was the case, according to Brown; Brown tried to take undue advantage of her.

It was Brown's words against Rita Antonina's and she was beautiful. She had an ugly scar on her tummy that no one could normally see and was thought to be of no consequence. But then, minute details always turn a case.

Peter Brown was indicted (committed) for trial.  The press believed Rita Antonina so did the jury. They had already decided the case before it began. It is easy to believe police brutality.

It was at this stage, Leibowitz was engaged to defend the cop. He believed him. This is how the book records conversation between the two about the scar.
"I can't imagine anyone wanting to have an affair with that woman," Brown said miserably. "Honest, Mr. Leibowitz, that scar alone would be enough to scare anyone off.""Scar?" Leibowitz looked puzzled. "There was a picture of her in the News this morning. I didn't notice any scar on her face."  
"Not on her face," Brown said casually. "On her belly, like an appendicitis scar but it must be seven inches long. I never saw such a scar." "When did you see this scar?”  Leibowitz asked impatiently. Brown was surprised at the urgency in his lawyer's voice. "I couldn't miss seeing it," he said. "I told you she lay there on the bed without a stitch on.  
"Why didn't you mention this in the Magistrate's court when you testified against her?" Leibowitz demanded. "Nobody asked me to describe her.” the cop said puzzled at the interest the lawyer was manifesting. " Why, Mr Leibowitz, what's so important about the scar?” “Nothing ....nothing,” Leibowitz said sarcastically.
After the prosecution led their evidence, Brown went up in the stand and told his story. He deposed that the woman had undressed and was completely naked. Leibowitz didn't ask him any question about the scar. Wallace was the brilliant DA for the prosecution. At the end of his cross-examination he asked (this is again from the book),
"You testified that Rita Antonina lay there on the bed naked," Wallace [prosecuting counsel] boomed. "Now, Brown, is there anything about her that stands out in your memory?"  
Brown paused a moment and then said thoughtfully, "Now that you mention it, Mr. Wallace, there is. She had a long, ugly scar on her belly that ran all the way from her navel right down to her ... well ... her groin. I could never forget that scar as long as I live."..."Why didn't you mention this scar before?" Wallace thundered. "No one ever asked me about it," Brown answered with complete truthfulness, and then Wallace dropped him. 
Leibowitz recalled the complaining witness [Rita Antonina] to the stand to ask her just one question."Do you have such a scar as the defendant described?" he asked gently.Her eyes searched the floor, and for a moment she hesitated. The crowded courtroom was tense with expectancy.Then she choked out a mumbled, “Yes, I do.”
It belied Rita Antonina's case that she never took off her clothes. The jury did not take any time to acquit Brown.

In law courts, perjury is not as common as it is believed. But there honest mistaken belief. In the next post we will talk about it from another example from the book 'Courtroom'.

#LegalTrek #YatindraSingh 
#Courtroom #SamuelLeibowitz

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