New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1893-06-10
OrD.JTME CRIMINAL PRIC7ICE.

'f>~''
striking example of Old-fashioned criminal
practice. There are no chickering's between OPP
uosing counsel each side is allowed great lati-
tude in examining witnesses; there are few
objections and technical arguments; and the
Court is seldom asked for a ruling The trial
offers a marked contrast to criminal proceed
inrs in this town, in which the lawyers on each
aide are constantly in conflict over trvaltlcS
of procedure and splitting hairs over technical
objections. Each side exhausts its energies IN
embarrassing the opposing counsel and in bad
pcr;np and confusing witnesses. While a
foundation may be laid in this way for an APP
peal to higher courts and motions Tor new
trial, there is seldom any direct benefit 80 fal
rs influence with the jury is concerned ; ana
not infreoucntly the clients cause l. pIcludiceu
Inv these legal tactics. In Massachusetts, these
matters are managed in accordance with the
older and better traditions of the bar
H. is for the interest of the defence IN the
Borden trial to impress the jury with the tact
that it has a strong case and has little 70 lcar
from the evidence for the state. AT the OUT
set it had few misgivings respecting the char
actor and fair-mindedneSs Of Jurors. As the
evidence for the State produced, Il al
l,vcd the witnesses ID tell their stories nli-
rally On the direct examination. Opposing
counsel were not warned when they openly
coached witnesses by their leading questions.
Few exceptions were taken; no anxiety was
displaycd over trivial p,ints; Witnesses were
seldom interrupt d. The general effect Ct tins
method of pro- edurc would naturally be t. III
,piro confidence. Ii tended 10 minimize the
importance Of the evidence for the state ana
10 create in the minds of the jurymcn an I'M
prc,,ion that the defence had II thing 10 keep
hack or b. dStort and that il stood IN no drt1d
If revelations from that quarter. NJ New
York criminal lawyer would have conducted
the defence in that way. Ii would have been
considered unprOfc.>iGnal t. allow The state SO
much latitude. or t. make s. little effort 10
confuse tho witnesses or to cifer 80 ic" Cd
icctions. But ii was shrcwd common sense
nevertheless. and better art than many OF inc
criminal lawyers hercabouiS display, with all
their aggrcs.ivcnc.s and sharp practice.
Then As for crOs>-cXamlnatlnn. cN-Govclnor
Robinson ha, given a fine an exhibition OF
talent rs has been witnessed for many day.
Il is the samc art If conccalng art which
Charles O'Conor once displayed at the New
York bar: and let il not be forgotten tha'
when he rcappcared in his old age III the W a.
worth case. il was a revelation of the SUPER
orifv of old -time methods, - marked was the
contrast with the newer pcttifogging aud legal
clustering. Ex-GoycInor Robinson proceeds
upon the assumption that something * to be
made out Of nearly all witnesses. II their sIlS-
piciOns can be- allayed and their confidence
gained - well dos he conceal ms motive
that wiine., after witness under his mlnlplla-
ton ha, said precisely what he wanted ana
ha, either damaged the theory Of the pro'ccu-
ton or aided in establishing grounds OF de
fence This is ol-timc practice of the first
order The now tangled IDEA i that witnesses
when cross examined lrc 10 be rdiculcd. con
fused worried. trtuicd and dl>cicdiicd III
every way The older and better practice i
t. Use rather than 10 abuse them.
Remarkable diS'cfnment was displayed III
the crosse examination OF Mis-, Russell and
Fleet the officer who searched the Borden
house and found the hatchcts. Here were two
witnesses who were hostile from different mo
tivcs. The wclI-c~tabli,hcd rule of criminal
practice is not 10 provoke such witnesses. Inc
vily LAWYER followed the rule in one instance
and dislcgardcd it in the other Miss Rus
sell. the former intimate friend Of the prisoner,
had evidently formed private Judgment OF
the case from having her suspicious excited by
the destruction Of the dress She had pom
dcred the matter in silence and finally revealed
il to the prosecution, doubtless from high
sense Of public duty. The cr'S>-cXamncr>
method was TO deal gently with her and 10
fcisn an Indifference to her story which would
tend to minimize its importance. This wa,
god art for if lrratcd she would have been
likely {, harm rather than to help his ease.
With Fleet. the officer who had prcjudgcd the
case from professional motives, the method
wa, reversed The lawyer changed his man
ner and deliberately eXlspcratcd the witness.
whose hostility - his client he was anxious to
reveal to the jury. The Borden trial offers
many opportunities for study Of old school
practice Of the best kind.