Cross-examining the dishonest witness
I’ve encountered my share of mendacious witnesses on the stand over the years. Sometimes the witnesses have been blatant perjurers. Other times witnesses have feigned lack of memory. I’ve learned that how to deal with duplicitous witnesses depends on one’s style, the nature of the case and the facts available with which to confront the witness. Here are some tips on how to deal with the dishonest witness testifying against your client:
- You can impeach the witness by demonstrating that the testimony is unbelievable in leading the witness to exaggerate and extend his or her false statements to the improbable;
- You can impeach the witness by a prior inconsistent oral statement, using extrinsic evidence, i.e., calling another witness to demonstrate that the testimony of a prior witness is false;
- You can impeach the witness by a prior inconsistent written statement; and
- You can impeach the witness by demonstrating his or her bias.
Here are two historic illustrations of defense attorneys successfully employing some of these strategies to impeach mendacious witnesses. Consider them as you adapt your own style and method in your cases. The first example involves cross-examining a witness who feigns loss of memory: The 1820 trial of Queen Caroline, whom King George had charged with adultery.
The case involved one Teodoro Majocci, an Italian servant and purported eyewitness. If believed, his testimony was more than sufficient to establish the queen’s guilt. The great luminary of the day, Henry Brougham, later Lord Chancellor, appeared for the defense in the House of Lords. At first, Majocchi appeared immune to Brougham’s cross-examination. To each question he replied, “Non mi ricordo,” meaning, “I do not remember.” Brougham asked a series of questions to Majocchi that, if he were truly an eyewitness to wrongdoing, he would be able to answer. To each question Majocchi responded “non mi ricordo.” Among the many things to which Majocchi responded “non mi ricordo” was a question about the position of the rooms of the queen and her alleged paramour, Bergami. This was striking in that the case against the queen relied in part on the position of the queen and Bergami’s rooms, signifying closeness and ease of communication.
In closing argument, Brougham demonstrated that Majocchi’s repeated answers of “non mi ricordo” defied belief. As John Lord Campbell explained in his book, Lives of the Lord Chancellors and Keepers of the Great Seal of England, Brougham argued that Teodoro Majocchi was a witness of great importance and went on to say:
He was the first called and the last examined…There is an end, then, of innocent forgetfulness, if when I come to ask where the rest slept, he either tells me, “I do not know,” or “I do not recollect”; because he had known and must have recollected that when he presumed to say to my learned friends, “these two rooms were alone, near and connected, and others were distant and apart”: when he said that, he affirmed his recollection of the proximity of those rooms and the remoteness of the others. He swore that at first and afterward said, “I know not,” “I recollect not” and perjured himself as plainly as if he had told your Lordships one day that he saw a person and the next day he never saw him in his life.
This impeachment of the Italian servant is an example of ridiculing a perjured witness in closing argument without direct impeachment during the examination of the witness.
Now consider the cross-examination of a blatant perjurer on the witness stand: The attorney conducting the cross-examination was Weymouth Kirkland, a prominent Chicago attorney in the early 1900s who was defending an insurance company against a plaintiff claiming entitlement to funds because the policyholder had drowned after falling off a ship. As recounted by Paul Stryker in The Art of Advocacy, the defense asserted that the policyholder, Mr. Peck, did not fall from a ship and drown but rather, that he walked off the ship very much alive. In cross-examining the ship’s cook, Mr. Weymouth proceeded as follows:
Q: How long had you known Peck?
A: Fifteen years.
Q: You knew him well?
A: Yes, sir.
Q: How did you happen to see his body?
A: I looked out of the porthole.
Q: You recognized it beyond doubt as the body of Peck?
A: Yes, sir.
Q: Did you make an outcry when you saw the body?
A: No, sir.
Q: Did you ask the captain to stop the ship?
A: No, sir.
Q: What were you doing when you happened to look out of the window and saw the body?
A: I was peeling potatoes.
Q: And when the body of your old friend, Peck, floated by, you just kept on peeling potatoes?
A: Yes, sir.
During closing argument Kirkland did not argue to the jury that the cook’s testimony was false. Instead, he took a potato and knife from his pocket (you could bring knives into the courtroom in those days), rested his foot on a chair and began to peel the potato. As he did this, he said to the jury, “What ho! What have we here? Who is this floating past? As I live and breathe, if it isn’t my old friend Peck! I shall tell the captain about this in the morning. In the meantime, I must go right on peeling my potatoes.”