Bear Lore: Do Not Enter Any Fight You Do Not Intend to Win
Consider these legal reminiscences as the necessary foundation of a subsequent article on the Bear's strategic plans, and why, When Bears Attack, they follow this ancient Bear wisdom, whose original author is lost in the mists of tradition.
Kindness is for fools! They want them to be treated with oil, soap, and caresses but they ought to be beaten with fists! In a duel you don’t count or measure the blows, you strike as you can! War is not made with charity, it is a struggle, a duel.
What does this have to do with cross-examination? Simple. The Bear's objective on cross-examination was always nothing less than to utterly destroy the credibility of the witness who was testifying against his client, to the extent the witness himself made that possible. The Bear's client's life might be on the line; his liberty at the least. The only thing that stood between his client and the dreadful power of the state was the Bear, and sometimes his ability to nose out perjury.
This is the key point. If a trial defense lawyer is not willing to go into a cross-examination burning with that imperative, the Bear has little use for him. This does not merely mean poking at a fact or two, but, where it were true, exposing the witness as a bad person: a liar and a blackguard whom the jurors should not believe. If an innocent loved one of yours was on trial for murder, would you want his or her lawyer to have the skill and determination to pitilessly expose perjury? Or would you be worried about the witness' tender feelings, or the lawyer's deference to an authority figure?
|Jose Ferrer destroys Captain Queeg - or does he|
just give Captain Queeg the opportunity to destroy himself?
Jose Ferrer vs. Humphrey Bogart
Think of Jose Ferrer as trial defense counsel in the Cain Mutiny completely demolishing poor Captain Queeg, humiliating him in front of the shocked officers. Was it pretty? No. Was Captain Queeg sympathetic? Yes. Was Jose Ferrer proud? No ("it was like shooting fish in a barrel"). Did he do his duty? Yes. Captain Queeg got himself into trouble when he elaborated, and then dissembled about various matters. When he realized he was floundering, he became nervous, and started playing with his steel balls. Through well-prepared, respectful, but firm cross-examination, Captain Queeg himself confirmed that he was not, in fact, fit to command a U.S. warship. That is a classic representation of a good cross examination.
It is not bad to plant doubts about the accuracy of a witness on a point or two, and usually, that's the best one can hope for. But what if you could show the jury that the witness is a bad person whom everyone knows is a liar, without a shred of credibility? If your innocent loved one's life were on the line, wouldn't you prefer the latter, if possible? Now two quick points.
In fact, most of the time, the Bear was at his most winsome during cross. First, to lull the witness into a false sense of security. Second to appeal to the jury. Third, because it is one of the more challenging and theatrical parts of a trial, and the old show Bear could not be suppressed.
Sometimes the Bear would ask the question he knew would make the witness spontaneously combust while facing the jury, rather than the witness, and actually look the jurors in the eye while the witnessed answered. Hello, we're in this together, friends. I have him now, and he doesn't even realize it. I am demonstrating my confidence and contempt for this perjurer. Now watch this.
The second point is that if a witness answered the Bear's questions simply and truthfully, he was 100% safe. The best lawyer in the world can't do anything on cross with a completely truthful witness. The problem is, witnesses are always trying to second-guess the lawyer, and deny him what they think he wants. Big mistake. So do not imagine any of the Bear's victims were innocent. The ones who could be reasonably mistaken were treated with sympathy, even friendliness. Liars found cross-examination excruciating. (But not for the Bear.)
Next time we shall see a couple of examples of epic fails by witness under cross.