"Cross-examination is the greatest legal engine ever invented for the discovery of truth" John Henry Wigmore

About 20 years ago I attended criminal court in the small, sleepy town of Orillia, 80 miles north of Toronto.. Orillia was lampooned by the humorist Stephen Leacock (pictured) in his novels as the town of Mariposa.

Impaired Driving Case

At the time I had been at the Centre of Forensic Sciences for about 20 years. The case involved a driver who was intoxicated by alcohol and smashed his car. Fortunately, he was the only one injured and was taken to hospital where a blood sample was collected for medical purposes and seized by the police. I analyzed the blood for alcohol by headspace gas chromatography at the lab. The blood alcohol concentration was 0.180 g/100mL. An example of the GC output is seen below.

I was at trial to testify on the BAC and the effect it would have on driving ability. The trial commenced, and as usual I was excluded and waited just outside the courtroom until I was called. Typically the forensic toxicologist was the last witness called by the prosecutor in this type of trial. I always joked that I felt like the sanitation worker who cleaned up the mess left by the parade.

The Cross Examination

While I was waiting, a young local criminal lawyer looked into the courtroom through a window in the door and said to me.

"Is that Shelly Altman?"

"Yes", I replied, looking up from my papers.

"THE Shelly Altman?" he questioned incredulously.

I said, "Yes, he's from Toronto."

"He's a top criminal lawyer. What is he doing here? And who are you?"

I explained to him that Mr. Altman was defending an impaired driving case and that I was the forensic toxicologist who analyzed the blood for alcohol and would soon be on the stand.

"Aren't you nervous about testifying? He's a great lawyer and very skilled in cross examination", the young lawyer said, "in fact I'm going to sit in court right now to watch the cross and learn a few tips" And he did.

Soon afterward I was called to the stand. I was ruled as an expert in forensic alcohol toxicology after Shelly Altman laconically said, "He's an expert your honor." Shelly and I had done a few cases together before and we both respected each other.

After my evidence in chief was concluded by the crown attorney (prosecutor), the judge turned to the defence and said,

"Cross examination, Mr. Altman?"

From the stand I could see the young local lawyer leaning forward in anticipation of a devastating cross. But Shelly got up and said, "no questions your honor", and sat down.

No questions your honor.

The judge turned to me and said "You are excused Mr. Wigmore."

I tried not to smile as I walked by the young disappointed lawyer.

Outcome

I can't remember if Shelly won his case or not, but I think he did. I always try not to be interested in the legal outcome, of either guilty or not guilty. My only concern was the judge's summary and evaluation of my evidence, that he didn't find it bias, confusing or unhelpful. Which he didn't.

Hopefully the young lawyer learned a valuable lesson on how to focus on the legal essentials of the case. I found the longer I was a court-going forensic toxicologist the shorter my cross examinations became.

Conclusion

The second but more practicable part of what the great legalist- John Henry Wigmore said on cross-examination is seldom cited, but it provides good advice:

"You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it."

YouTube Video

Watch my YouTube video about expert witness testimony at https://youtu.be/HtmCbmdPdXE

Wigmore on Alcohol

WOA is an invaluable resource for the medicolegal aspects of our most popular drug and is available from my website at:

www.wigmoreonalcohol.com

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