Prosecutor David T. Wilentz (left) and Key Witness John F. Condon

The law has long recognized the propriety of impeachment by prior inconsistent statement. The first description of the proper method for such impeachment was given in the 1820 divorce case tried in the House of Lords, where King George IV unsuccessfully tried to disentangle himself from a loveless marriage to Queen Caroline.

A lesser type of impeachment by prior inconsistent statement is impeachment by prior non-statement. Such impeachment is not as well recognized as impeachment by prior inconsistent statement, nor is it often as effective. A typical impeachment by prior non-statement which I have heard many times goes like this:

Q. You never said that before, did you? A. Nobody ever asked me before.

For impeachment by prior non-statement to be effective, the non-statement should be something which was said in a situation where it would be reasonable to expect that the witness should say it. For example, if a witness has identified a defendant as the perpetrator of a crime. It would be natural to expect that the witness would have identified the defendant in a post-arrest lineup. If law enforcement had confronted the witness with the defendant and asked him to make an identification, and if the witness had not done so, it would seem to cast some doubt on the in-court identification. If, on the other hand, a reporter had stuck a video camera in the face of the witness and asked him to identify the perpetrator, the fact that the witness said nothing is more evidence of the witness’s caution than of any possible mendacity. Let us see how this might play out in an actual trial. We will return to the Lindbergh Kidnapping Case and the testimony of John F. Condon, who had identified Bruno Richard Hauptmann as the mysterious “Cemetery John” to whom he delivered the ransom money.

Q. Did you see any newspaper men while you were there
[in Miami]?
A. Plenty.
Q. Did you tell them at that time that Hauptmann was not the John?
A. No, sir.
Q. How many newspaper men did you see?
A. Oh, I couldn’t count them, they were flocking in there in such droves that I couldn’t count them.
Q. How many interviews did you give?
A. I couldn’t state that they were interviews, but I had conversations with anybody that came to my room or to my table.
Q. They asked you about this case, didn’t they?
A. They did.
Q. Yes. You never once told any newspaper man that this defendant was John, did you?
A. Which defendant?
Q. This defendant here.
A. Oh. I never did. I never told or mentioned his name to them or in public, never—note the words Colonel—of affirmation or denial. I make a distinction between “identification” and “declaration of identification.” [In the early twentieth century it was customary to refer to lawyers as “colonel.”]
Q. In other words, I am to understand that you split hairs in words?
A. No hairs at all. A man’s life is at stake and I want to be honest about it.
Q. There was nothing preventing you from telling the press, was there, that this was the right man?
A. Yes, there was; yes, there was.
Q. If you wanted to be honest about it, why did you not blazon forth that fact to the world when they asked you?
A. Because I didn’t wish to do it and perhaps interfere with this case itself.
Q. If you were honest and telling the truth, do you not know that nothing could interfere with the truth, no matter how many times you said it was the man?
A. It didn’t. It didn’t. It didn’t interfere because I didn’t say.
Q. In Greenwich Street, New York police station, you said it was not the man, did you not?
A. No, sir. Get all the people that were there, I did not.
Q. You never said it was the man?
A. I never said it was or was not.
Q. Because you know you are not sure?
A. Because I made the distinction between declaration and identification. The identification meant what I knew mentally, the declaration meant what I said to others. There isn’t a man who breathes has ever heard me say that that was the man but one.
Q. You were brought there for the purpose of identifying Hauptmann, were you not?
A. I was, yes, sir.
Q. And you didn’t identify him, did you?
A. No, sir. Beg pardon, there is the word “identification” again. I take exception to your language. It would make a mistake and when you begin to divide the identification and declaration and denial, you would make it appear as though I were dishonest and I am not. I won’t—is that too severe, Judge?
The Court: No.
Q. Come on, I can take it.
A. That is good. I want you to know, Counselor, that the identification is purely a mental process after the senses have known, after the senses have distinguished, and unless that is taken that way to answer quickly, fast, I don’t know but what it might be a kind of trap that you were getting me. The declaration is where I tell it to others. Identification is what I know myself.

In the case of the non-statement to the newspaper reporters, the impeachment fell flat. In the case of the non-statement at the lineup, the examiner bungled. First, let us talk about hte non-statement to the newspaper reporters. Condon gave a perfectly rational and proper explanation of why he did not say anything to the reporters about Hauptmann’s identity as Cemetery John. Cases should be tried in the courtroom, not the newsroom.

Second, let us speak of the non-statement at the lineup. Edward J. Reilly was an experienced criminal defense attorney who was esteemed a very good one. No matter how good a lawyer may be, he can still have chinks in his armor, and Reilly appears to have had a giant chink. He seemed to be oblivious to the maxim that when you cross-examine you do not need to examine crossly. Reilly sought to engage the witness in a war of words, but Condon came to the witness stand with a keen wit and a half-century of experience in public speaking. The newspapers of the day adjudged Condon the victor in the verbal duel between lawyer and witness. The New York Times described Condon’s testimony in the following words:

He testified for nearly five hours, of which two were occupied by a severe cross-examination by Edward F. Reilly, chief defense counsel. The cross-examination failed to shake Dr. Condon’s story or his identification on any vital point, although the lawyer made Dr. Condon admit that he did not say that Hauptmann was “John” at the time he viewed him in jail in New York, right after his arrest. “Condon Names Hauptmann as ‘John’ Who Got Ransom; Parries Defense Attack,” New York Times, January 10, 1935.

What Reilly succeeded in doing by aggressive verbal sparring with Condon was to highlight Condon’s wit in repartee, which in turn masked the implausibility of his testimony.

Reilly should have attacked Condon’s testimony, not Condon. Snide remarks and personal assaults should not have been weapons in his arsenal. At least not until cross-examination had discredited Condon in the eyes of the jury. A better line of questioning, tight and controlling, might have gone thus:

Q. You attended a lineup at the Greenwich Street police station in New York?
A. Yes. [We can expect Condon to append a verbal barrage to his affirmation, but we will not take the bait. We will relentlessly pursue the non-identification.]
Q. The police asked you if anyone appearing in the lineup was the John whom you met in the cemetery?
A. Yes. [Another verbal barrage.]
Q. Bruno Richard Hauptmann was in the lineup?
A. Yes. [Another verbal barrage.]
Q. At that time you did not identify Mr. Hauptmann as John?
A. I identified Mr. Hauptmann at that time but I made no declaration of identification. [At this point in the actual cross-examination Reilly sought to belittle Condon as a hair-splitter. Two types of witnesses engage in this type of splitting of hairs—evasive witnesses and pedants. Condon may have been evasive, but he was also a pedant. It would have been far better to give Condon enough rope to unwittingly betray his evasiveness than to attack him with a charge of lack of candor.
Q. So you identified Mr. Hauptmann as John?
A. Yes.
Q. But you did not make a declaration of identification?
A. No. [Instead of battling with a witness over the definition of words, it is usually a better tack to adopt the witness’s definition and work the definition against the witness.]
Q. So when you left the police station that day, you had told nobody that Mr. Hauptmann was John?
A. No. [A myriad of short, single-fact questions could be spun out to hammer home the fact that, despite the earnest desire of the police to learn the identity of John, Condon withheld vital evidence from the police.]
Q. And you never told Mr. Wilentz that Mr. Hauptmann was John?
A. No.
Q. The first time you have ever told anyone that Mr. Hauptmann was John is today in this courtroom?
A. Yes. [A myriad more short, single-fact questions could be devised to accentuate the preposterous nature of Condon’s assertion, leading the jury to the conclusion that Condon was a lunatic or a liar.]

With a series of short, single-fact questions, Reilly could have highlighted the implausibility and made Condon’s verbosity look like evasion rather than self-defense against a relentless attack.