How Attorneys Judge The Ervin Hearings

"I will ask you as a lawyer if the experience of the English-speaking race has not demonstrated that the only reliable way in which the credibility of a witness can be tested is for that witness to be interrogated upon oath?"

--Sam Ervin "That is correct."

--John Dean If the public is intrigued by the televised Watergate hearings, lawyers are transfixed. Every week hundreds of them write to the committee, telling the Senators which questions they should have asked, or just plain wishing for the professional pleasure of being able to do the interrogating in person. For trial lawyers in particular, it is impossible to avoid judging the interrogation process as well as the testimony it produces. Last week TIME correspondents asked a selection of courtroom and academic experts how well the Ervin committee is doing its task.

The answers depended on varying perceptions of what that task is. But there was considerable and perhaps surprising agreement on one major point:

that the Senators--all of whom are attorneys--have been unduly soft, even inept, in their questioning, particularly in pursuing inconsistencies and in testing witnesses' credibility. Philadelphia Prosecutor Richard Sprague deems it a "pathetically poor performance."

Washington Lawyer Paul Connolly agrees: "They've done poorly. They're not nearly as tough as a good cross-examiner would be." Connolly's partner, Edward Bennett Williams, remembers that "the history of these congressional committees is that they are always a fiasco." Senators, he says, have no skills in cross-examination and "wouldn't be expected to have."

Those skills, while applied in widely different personal styles, are nonetheless quite specific. "Everybody misses the art of pursuit when a witness gives an unsatisfactory answer," says Alfred Julien, a former president of the American Trial Lawyers Association. For example, when John Mitchell claimed that G. Gordon Liddy's modified espionage plan had gone into effect without his knowledge, he should have been asked exactly when he did hear about the plan, from whom, and what he then did. In addition, questions should be short and precise, says Philadelphia's Sprague. The expansive senatorial style of examination, he adds, "affords each witness the opportunity to say whatever he wants to, without ever having the details of what he says explored."

The witnesses' answers can only be controlled by carefully drawn questions: What did he say? What did you say? "Don't accept and don't permit witnesses to give abstractions," says Professor Irvin Rutter, echoing what he tells his students at the University of Cincinnati Law School. "Insist on facts, not impressions--things you can see, hear, taste, touch or smell. Get a microscopic visualization of details that re-create reality." In a trial, witnesses can also be surprised into making admissions. Floyd Demanes, president of the California Trial Lawyers Association, observes that "taking a witness down a path where he doesn't know the object of the questions is more likely to bring out the truth." But the Senators rarely try such a blind-side approach.

Individual performances of the questioners do vary, however. Chief Counsel Samuel Dash is credited with performing well, though not spectacularly. But Dash is restricted by the fact that the Senators want to dominate the process. In one lawyer's phrase, "he sets out the buffet from which the Senators feed." On the committee members, there is general agreement with Phoenix Lawyer John Frank's assessment:

"Nobody can move in for the kill the way Ervin can. Of course, he's an old man and suffers from the problem of misspoken words, but no one has the terribly seasoned quality he has." Howard Baker, as Demanes puts it, "goes more to the motive of the witness." That often means "his questions are too esoteric to be called fact-finding questions."

Demanes describes Lowell Weicker as "the kind of interrogator we call a barracuda--everyone waits for him to jump on the witness." But lawyers disagree on whether that makes him effective or a grandstander. There is little disagreement, however, with the view that Joseph Montoya is the least able of the questioners.

Great Trial? Many lawyers temper their criticisms with the observation that the Senators are not so much nailing down specific details of the truth as establishing its general outline. "My lawyerly instincts are turned off, and I often find the questioning unprofessional," says Columbia Law Professor Abraham Sofaer, a former U.S. prosecutor.

"We'll just have to look to the trials to get the truth in the legal sense. But the Watergate committee serves another very important purpose--bringing out the facts for a public airing in a way that can sometimes lead to a broader sense of the truth than a trial ever could."

Stanford Law Professor Anthony Amsterdam reaches a similar conclusion: "If you think they are trying to find facts that will support new legislation --the legal theory on which the hearings are proceeding--then you would have to hold them to ordinary standards of crossexamination. And such questioning is often deadly dull. But if you take the view that the Senators are--and properly so--exploring and simultaneously exposing to the public the whole Watergate mess, then to ask rhetorical questions and argue points and use sarcastic tones is all effective. It is more like Perry Mason than a real trial, but it stimulates the American public to reflect on Watergate and makes them more and more aware of the problems that Watergate symbolizes."

Indeed by the very nature of a congressional hearing, the Senators are not really acting as trial lawyers at all--despite John Mitchell's complaint that "it is a great trial being conducted up here, isn't it?" Instead, they are inquirers, searchers and actors in a great political drama.

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