he says and his chief stress are in dealing with those whose direct testimony is overturned by the questions of the adverse counsel; and consequently the most careful reader infers that he thinks cross-examination can be made to do wonders in almost every case. Long ago, Quintilian gave the subject a somewhat better treatment, which has been highly applauded by different English and American writers. But the doctrine of the current books of the day lags behind the prevailing practice of the best lawyers. This doctrine is that of Mr. Cox and Mr. Harris, as indicated above. It is utterly misleading; for it is generalized from exceptional instances, and takes hardly any account of the kind of witnesses whose testimony wins more than three fourths of the verdicts in our courts. . . . The practice and judgment of Scarlett, the great English lawyer who lost fewer cases that he ought to have won and won more that he ought to have lost than any other hero of legal biography, outweigh the opinions of the authors mentioned. . . . It was his custom, rarely departed from, merely to probe his adversary's witnesses for further proof of his own case, scorning to waste his time in badgering them by an examination more entertaining to visitors than effective with the jury. He says in his Autobiography: "... I crossexamined in general very little, and more with a view to enforce the facts I meant to rely upon, than to affect the witness's credit, for the most part a vain attempt." Having premised as above in order to protect the student against prevalent errors and to foreshadow to him the main end of cross-examination, we will now pursue our subject. And we adopt the plan followed in the last chapter; that is, we begin with average witnesses, and we award due prominence to the methods most common in actual practice. ... You cross-examine these three classes: (1) The witness whose version you accept so far as it goes. (2) The witness whom you show to be mistaken, or the force of whose testimony you take off by other means, not however attacking his veracity. (3) The witness whom you show to be unworthy of credit. We add that there are really but two kinds of witnesses, the truthful and the untruthful; and consequently there are at bottom but two kinds of cross-examination, the one intended to elicit friendly evidence, and the other to show the unreliability of the witness. We wish to impress it upon our student that the first kind is in general use in every sort of case, while the second is only of occasional importance. We now take up the witness mentioned in the first class of our enumeration, that is, he whose version you accept as far as it goes. Your objects with him are but two, (a) the first to have him complete what the direct examiner has incompletely presented through such partial questions as will be explained in a moment, and (b) the second to make him, if you can, reenforce your own proofs. (a) The examiner in chief is privileged to ask such relevant questions as he pleases, and to keep the witness from answering anything more. He generally culls from what the latter knows of the matter in controversy such parts only as are favorable. . . . If you observe the trial of issues of fact, you will note that nearly every witness is made to suppress some important parts of a transaction while replying to the direct examiner; and that often, where he is given free range by being told to make his statement in his own way, he omits some details which would aid the other side should they be proved. To make the witness give a complete narrative, if what has been kept back is favorable to your side, may be regarded as the point where crossexamination should generally begin. (b) We now come to what is practically the most effective and most widely useful of all the different sorts of cross-examination. In it you have the opposite witness to prove independent facts in your favor.... A person may have been present when a sum of money was borrowed, and he may also have seen the money repaid afterwards to one who is claimed to have been the agent of the lender to receive it. If this witness testifies for the plaintiff on the trial of a suit for the money, his counsel will ask nothing about the repayment. He may not even know of it. But you have been told of it by your client, and you therefore will draw it out when you take the witness. . . Note the usual cross-examinations by good practitioners, and you will find that in a large proportion they ask hardly any questions except such as are now our special subject. In most cases they see intuitively that there is no very distorted statement to be rectified, and that there are no serious mistakes to be corrected; and they only make the witness reënforce their side as to some detail. . . . While the kind of cross-examination now in hand is the most important of all, it is also the most easy. It requires no great skill. It will generally be well done if with patience you have had your client and his following to tell you all that the witnesses for the other side know in his favor, and you then question accordingly. As we leave this branch of the subject, we must ask you not to fall into the error of rating its place in practice by the short notice it has received from us. It is too simple to need much explanation. But if you stay at the bar, you will have increasing use for it, and after a while you will, as a general rule, prepare no other sort of cross-examination for the average witness. It is a larger field for your powers than appears at first. The cross-examiner requires much attention and assiduity to collect from the opposite witnesses all the help possible. It is not only such important facts as we used for illustration in the last section that he must search for. They would be overlooked by only a very dull man. He is to exhaust many details; such as strengthening one of his own witnesses stoutly attacked by having the witness under examination to concur with him in even a small matter; the conduct, expression, or language of the adverse party on some occasion which the latter has probably forgotten; minute circumstances, such as the shapes and positions of marks; in short, the details relevant here are as varied and extensive as the entire possibilities of proof. 256. AMOS C. MILLER. Examination of Witnesses. (Illinois Law Review. 1907. Vol. II, p. 257.) . . . I have said above that it is necessary to treat a witness who is honestly mistaken very differently from the way you treat a witness who is lying. The truth of this is manifest. If the witness who is honestly mistaken is treated harshly or in a manner which shows to him that his cross-examiner believes him to be lying or wants his hearers to so believe, he will quickly resent it and strengthen his testimony upon the very points on which it is desired to weaken him. If, on the contrary, the honestly mistaken witness has his attention called to collateral matters inconsistent with his testimony, and the truth of which he is likely to recognize, and if he at the same time is treated courteously and considerately, he is quite likely either to change his testimony or modify it or become so uncertain as to make his testimony utterly worthless to the party calling him. He may gain so favorable an impression of the cross-examining counsel, and of his superior knowledge of the facts in the case, that he will suddenly develop an extreme conscientiousness about testifying to things of which he is not perfectly certain. 257. G. M. WHIPPLE. Manual of Mental and Physical Tests.' (1910. p. 404.) Tests of Suggestibility. The term "suggestion" has found different usages in psychology. Four different usages at least may be distinguished. (1) Suggestion is equivalent to association, e.g. the idea "horse" suggests the idea "Black Beauty." (2) Suggestion is the conveyance of an idea by hint, intimation, or insinuation, e.g. the orator suggests an idea by an appropriate gesture. (3) Suggestion is a method of creating and controlling hypnosis. (4) Suggestion is a method of creating belief or affecting judgment, usually an erroneous belief or false judgment, in the normal consciousness. The tests which follow all purport to measure susceptibility to suggestion in this last-named sense. In them, the experimenter seeks by suitable arrangement of the test material or of the instructions, to induce the subject to judge otherwise than he naturally would to induce him, for example, to judge equal lines or equal weights to be unequal, or to perceive warmth when there is no warmth, etc. If the attempt is successful, the subject is said to have yielded, or to have "accepted" the suggestion. The degree of his suggestibility is indicated by the quickness or frequency of his “yields.” Efficiency in observation, attention, memory, and the like has been shown to be specific, not general in character. For this reason, suggestibility must be tested by more than one method. . . . Test 42. Suggestion by Progressive Lines.... Arrange the kymograph drum so that it may lie horizontally and be revolved freely by hand. ... On the strip of white paper, draw with a ruling pen 20 parallel, straight black lines, 2 cm. apart and each 1 mm. wide. . . . Seat S2 50 cm. from the screen and provide him with a sheet of cross-section paper. The instructions should take the following form: "I want to try a test to see how good your ‘eye' is. I'll show you a line, say an inch or two long, and I want you to reproduce it right afterwards from memory. Some persons make bad mistakes: they may make a line 2 inches long when I show them one 3 inches long; others make one 4 or 5 inches long. Let's see how well you can do. I shall show the line to you through this slit. Take just one look at it, then make a mark on this paper (cross-section paper) just the distance from this edge (left-hand margin) that the line is long. When that is done, I shall show you the second line, then the third, and so on. . . . E then turns the drum to bring the first, or shortest, line into view. As soon as S turns his attention to the recording of his estimate on the paper, the drum is moved forward slightly to conceal the line so that further comparison is impossible. As soon as S has placed his mark, then, and not before, the next line is exposed. This precaution serves to maintain the impression that a new, and hence probably a longer, line is exposed. . . . If S has ceased to respond to the 1 Published at Baltimore, by the Warwick & Yorke Co. Subject, i.e. person to be experimented upon. - ED.] 2 [S suggestion of progressive augmentation at the 20th exposure, the test ends at that point. . . . For a measure of suggestibility, E may take the number of lines out of the last 10 lines that are drawn longer than the 5th line was drawn. . . . Results.... (3) Inspection of the records of individual pupils shows that in some cases the force of suggestion was steady and persistent, while in others it reached a maximum, and then declined. (4) Extremely suggestible S's may make their "estimate" of the line without even looking at it when exposed; their minds are so completely dominated by the suggestion of uniform augmentation that they do not trouble to observe the stimulus. . . . (6) In either form of test, the 1st line is apt to be overestimated. The 5th line is almost invariably underestimated. Generally speaking, this underestimation is less pronounced in those S's that least prove least suggestible. Test 43. Suggestion of line lengths. . . . [Two forms of suggestion may be used]; the first Binet terms "contradictory suggestion," the second "directive suggestion" ("suggestion directrice "): in the former E makes certain statements that are intended to interrupt or modify a judgment that S has just made; in the latter, statements that are intended to control or influence a judgment that S is just about to make. A. Contradictory Suggestion. Materials. Drawing utensils. A sheet of cardboard upon which are drawn in ink 24 parallel, straight black lines, ranging in length from 12 to 104 mm., by increments of 4 mm. The lines all begin at the same distance from the left-hand margin, are 7 mm. apart, and are numbered in order of their length, from 1 to 24. These rectangular pieces of cardboard, about 12 × 20 cm., on each of which is drawn a single straight line. These three stimulus lines correspond to numbers 6, 12, and 18 of the 24 comparison lines, and are, accordingly, 32, 56, and 80 mm. long, respectively. 66 Method. Show S the card of comparison lines, and explain their numbering. Replace this by the first stimulus line (32 mm.), saying: "Look carefully at this line." After 4 sec., remove the stimulus card, present the comparison card, and say: "Tell me the number of the line that is just the length of the one I showed you." At the moment that S gives his judgment, E says: Are you sure? Isn't it the th?"-indicating always the next longer line. If S answers "No," E repeats the question in exactly the same form. If S still answers "No," the attempt to produce suggestion is suspended, and the case is recorded as one "resistance." The second and the third stimulus lines are presented and the same procedure is followed in each case. If, in any of the trials, S answers "Yes," E then inquires: "Isn't it this one?". indicating the next longer line and this inquiry is carried on from line to line until S has twice resisted the suggestion, i.e. has twice answered "No" to the same question. . . . Results. . . . (2) Of 25 children, aged 8-10 years, Binet found 6 who resisted suggestion completely, 6 who "yielded" once, 5 twice, 2 three times, 2 four times, and 1 each six, seven, and more than seven times. . . . (4) S's who have selected the correct line are less apt to change their designation under suggestion than are S's who have selected the wrong line: thus Binet and Henri found that 56 per cent changed their selection when it was actually right, but 88 per cent when it was wrong. Moreover, of the latter, 81 per cent made the change in the proper direction. B. Directive Suggestion. Apparatus. As in Test 42, save that only 60 mm. lines are used. Method. Seat S 50 cm. from the cardboard screen and provide him with a sheet of cross-section paper. Instruct him as follows: "I'm going to show you a number of lines. You will see them appear through this slit, one at a time. When I show you a line, take a good look at it; then make a mark on this paper at just the distance from this edge (left-hand) that the line is long. When that is done, I shall show you the second, then the third, and so on. You will make the mark for the length of the second line on the second line of your paper, for the third on the next line, and so on.” E now displays the 5th, i.e. the first 60 mm. line of the series, with the remark: "Here is the first one." When S is ready for the second line, i.e. 7-10 sec. later, E remarks, as he exposes it: "Here is a longer one." When the third is exposed he remarks, "Here is a shorter one," and he continues to use these remarks, alternately, at the moment of exposure of each line, until 15 lines have been exposed, the first without suggestion, the remainder coupled with 14 suggestions - 7 of shorter, 7 of longer. These suggestions must be given just before the line is exposed, in a quiet tone, without looking at S. S should see the disk turn and the new line appear at the moment that he receives the suggestion. • .. Results. (1) . . . Sixteen of 23 pupils tested by Binet submitted completely to the suggestion, and no one resisted every suggestion. (4) There are marked individual differences in the suggestibility of school children under the conditions of this test. Binet found that in 18 trials the number of resistances to suggestion ranged from 0 to 14. . . . [Reverting to the effect of suggestion on the correctness of reports in general, as observed in experiments with a colored picture [post, No. 290], the following generalizations have been made :] (11) Dependence on Form of Report. All authorities agree that the use of the interrogatory,' whether the complete or incomplete form, increases the range and decreases the accuracy of the report.1 Thus, in comparison with the narrative,' the range of the interrogatory may be 50 per cent greater, while the inaccuracy (of the incomplete interrogatory) may be as much as 550 per cent greater. In general terms we may say that about one tenth of the narrative is inexact, but about one quarter of the interrogatory. . . . (12) Dependence on the Type of Question. The introduction of leading or suggestive questions very noticeably decreases the accuracy of report for children, and, unless the conditions of report are quite favorable, even for adults. The greater suggestibility of children is shown by Stern's results, in which the inaccuracy of boys and girls aged 7 to 14 was from 32 to 39 per cent, as against 10 per cent inaccuracy for young men aged 16 to 19 years. 258. JAMES RAM. On Facts as Subjects of Inquiry by a Jury. (3d Amer. ed. 1873. p. 134.) A witness about to narrate facts may be left to tell his story in his own way, or it may be drawn from him by questions put to him. The former method of telling the story is open to these objections: The witness may not think enough to call to mind all he can relate; from care [For the technical meaning of these terms with this author, see post, No. 290.- ED.] |