In any highly publicized courtroom trial, the biggest beneficiary is the law profession itself. Nothing advertises the attractions of lawyering more than the sight of virtuosos and novices displaying their flair (or ineptitude) at direct examination, cross-examination and argumentation. For laypeople, this is what law practice is about. As a result of the impeachment drama now showing daily on television, there will likely be a spike in enrolment at law schools this year—as if there were not already too many lawyers in this country.
The truth is that most lawyers never appear in courtroom trials. They may do research, write legal opinions, prepare legal documents, teach law, become judges, or run for public office—without having had any chance to actually argue a case in court. Yet, for lawyers and non-lawyers alike, the epitome of legal performance is the cross-examination. This is where courtroom legends are made, where the warriors of law are set apart from the armchair advocates. Lawyers know who these individuals are, for they are both feared and admired. Indeed, we all become lawyers when we see them in action, oozing with wit and erudition, passion and compassion.
Having watched my late lawyer-father meticulously prepare for trials, I have kept a lifelong interest in the methods of the law. I was his unpaid research assistant—poring over the penal and civil codes, official gazettes of the Supreme Court, and references like Wigmore on evidence—long before I read my first book in sociology. If apprenticeship were recognized as sufficient eligibility for the bar, I would have become a lawyer. As fate would have it, I ended up being its dedicated observer instead.
Seeing how the opening of the Corona impeachment trial last week was dominated by old hands like Senate President Juan Ponce Enrile and former Supreme Court Justice Serafin Cuevas prompted me to dig up an old copy of Francis L. Wellman’s classic, “The Art of Cross-examination.” I wish the team of young prosecutors had read it. This highly readable book is available in local bookstores. Although originally written in 1903 and largely based on American and European experience, Wellman’s book may be read as a summing up of the very art of lawyering itself. It shows that, more than direct examination, it is cross-examination that offers a lawyer the best opportunity to show his ability.
Because precisely it is an art, there is no single correct way of doing cross-examination. Normally, says Wellman, when faced with a dishonest witness, “You should never hazard the important question until you have laid the foundation for it in such a way that, when confronted with the fact, the witness can neither deny nor explain it.” But, it really depends on the situation at hand, and this is perhaps where instinct and experience come together.
“Sometimes it is advisable to deal the witness a stinging blow with your first few questions; this, of course, assumes that you have the material with which to do it. The advantage of putting your best point forward at the very start is twofold. First, the jury have been listening to his direct testimony and have been forming their own impressions of him, and when you rise to cross-examine, they are keen for your first questions. If you ‘land one’ in the first bout, it makes far more impression on the jury than if it came later on when their attention has begun to lag…. The second, and perhaps more important, effect of scoring on the witness with the first group of questions is that it makes him afraid of you and less hostile in his subsequent answers…. This will often enable you to obtain from him truthful answers on subjects about which you are not prepared to contradict him.”
As expected, the best practitioners vary widely in style. Some are full of verve and oratory, others approach their task with such gentleness that one could fall asleep listening to them. But it is in the way they weave their argument from information casually elicited that they demonstrate their dexterity. It is of no use to browbeat and confuse a witness without being able to discredit his testimony. That manner of examination, says Wellman, may only earn for the witness the eternal sympathy of the jury. One can definitely overdo a cross-examination.
One of the heroes of Wellman’s book is Rufus Choate, the Boston lawyer and orator who dominated the American courtroom in the first half of the 19th century. “Let me give you my dying advice,” he was supposed to have told a favorite junior lawyer, “never cross-examine a woman. It is of no use. They cannot disintegrate the story they have once told. They cannot eliminate the part that is for you from that which is against you. They can neither combine nor shade nor qualify. They go for the whole thing; and the moment you begin to cross-examine them, instead of being bitten by a single rattlesnake, you are bitten by a whole barrelful. I never, except in a case absolutely desperate, dare to cross-examine a woman.” At once, I thought of Clarissa Ocampo, and of Enriqueta Vidal, whose single-mindedness posed immense danger to any interrogator.
Bank official Ocampo never wavered in her testimony that she actually saw Joseph Estrada sign bank documents as “Jose Velarde.” It was she who clinched the case against Erap. Clerk of court Vidal could not be cajoled into submitting the statement of assets, liabilities and net worth of her boss, Chief Justice Renato Corona. The prosecution wisely gave up trying, because, in fact, her staunch refusal to surrender the documents was inadvertently doing Corona more harm than good.
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