Concession-Seeking Cross is Nothing New

In Ancient Rome gentlemen were expected to know how to lead an army or to try a case. All young men of substance received training in trial advocacy, and there were a number of trial advocacy manuals available for study. Most of those works have disappeared, but a few survive. Aristotle’s On Rhetoric is probably the oldest surviving trial manual. Many of Cicero’s works are available in modern translations: On Oratory and On Invention are probably his best works. Most of the ancient authors concentrated on the making of arguments because they believed that taking testimony required no special skill. One writer disagreed, however. That writer was Quintilian, a successful trial lawyer, judge, and teacher of trial advocacy who lived during the reign of Vespasian.

In the fifth book of his Orator’s Education, Quintilian sets down guidelines for the examination of witnesses. These guidelines are an embryonic statement of the principles of concession based cross-examination which we set forth in Chapter 3 of our Cross-Examination Handbook. He first states the principles when talking about the examination of hostile witnesses, but later says that they apply with equal force to cross-examination. It might be interesting to read his words and compare them to ours.

In speaking of hostile witness direct examination, Quintilian had this to say: “But in the case of one who will not speak the truth unless against his will, the great happiness in an examiner is to extort from him what he does not wish to say. This cannot be done otherwise than by questions that seem wide of the matter in hand, for to these he will give such answers as he thinks will not hurt his party, and then, from various particulars which he may confess, he will be reduced to the inability of denying what he does not wish to acknowledge. For as in a set speech, we commonly collect detached arguments, which, taken singly, seem to bear but lightly on the accused, but by the combination of which we succeed in proving the charge, so a witness of this kind must be questioned on many points regarding antecedent and subsequent circumstances, and concerning places, times, persons, and other subjects, so that he may be brought to give some answer. After this he must either acknowledge what we wish or contradict what he himself has said. If we do not succeed in that object, it will then be manifest that he is unwilling to speak, and he must be led on to other matters that he may be caught tripping, if possible, on some point, though it be unconnected with the cause. He may also be detained an extraordinary time, that by saying everything and more than the case requires, in favor of the accused, he may make himself suspected by the judge, and he will thus do no less damage to the accused than if he had stated the truth against him.” (Book 5, Chapter 7, §§ 16-19).

When he turned to cross-examination, Qunitilian wrote: “Every question is either about some point within the cause or on some point without it. On matters within the cause, the advocate of the accused, as we also directed the accuser, may frequently, by putting questions a little widely and on subjects from which no suspicion will arise, and by comparing previous with subsequent answers, reduce witnesses to such a dilemma as to extort from them against their will what may be of service to his own cause. On this point, there is certainly no instruction or exercise given in the schools, and excellence in it depends rather on natural acuteness or experience than anything else. If any model, however, ought to be pointed out for imitation, the only one that I can recommend is that which may be drawn from the dialogues of the Socratic philosophers, and especially Plato, in which the questions are so artful that though the respondent answers correctly to most of them, the matter is nevertheless brought to the conclusion which the questioner wishes to establish.” (Book 5, Chapter 7, §§ 27-28).

Quintilian’s other words on direct and cross-examination and the examination of witnesses are as timely today as they were over a thousand years ago. If you are interested in reading everything he has to say on the subject, you can find his work online in a number of different locations.