Guidelines for Cross-Examination:
Lessons from the Cross-Examination of Hermann Goering
Supreme Court Justice Robert H. Jackson's cross-examination of
Hermann Goering at Nuremberg is widely considered disappointing, at
best. What can be learned from it?
By Scott W. Johnson and John H. Hinderaker
on November 20, 1945, with the appointed British judge, Sir Geoffrey
Lawrence, wielding the gavel to call the proceedings to order. "This
trial," Lawrence observed, "which is now to begin, is unique
in the annals of jurisprudence."
The trial in question, conducted under the auspices of the International
Military Tribunal that convened in Nuremberg in the fall of 1945 —
the Nuremberg trial — was unprecedented in important respects.
Both the prosecutors who litigated the charges and the judges who sat
in judgment represented the victorious Allied Powers. The tribunal itself
was created and operated under terms of an agreement among the Allies:
the London Charter of August 8, 1945. That same agreement formed the
basis for the indictment, which charged the individual defendants with
four counts — waging a war of aggression in violation of treaties
and assurances, conspiracy to do so, commission of war crimes, and commission
of crimes against humanity, "whether or not in violation of the
domestic law of the country where perpetrated." The 24 defendants
included the ranking survivors of the German military and Nazi political
establishments; Winston Churchill had proposed, not unreasonably, that
they be summarily shot.
Although the trial has provided much material for legal analysis, the
event that is perhaps most instructive for lawyers today is the cross-examination
of Reich Marshal Hermann Goering by former Attorney General and then-Supreme
Court Justice Robert H. Jackson. No event at trial was more intensely
anticipated than the cross-examination of Goering, and none fell as
flat. The contemporaneous accounts, subsequent recollections, and memoirs
of trial observers as well as distinguished trial participants such
as Jackson's American colleague, then-Colonel Telford Taylor, unanimously
judge Jackson's cross-examination of Goering to have been a fiasco.
Historical accounts of the Nuremberg trial by Robert Conot, Joseph Persico,
and others corroborate this judgment. Jackson's cross-examination of
Goering has become notorious for its ineptitude.
Can the cross-examination have been as bad as the literature asserts?
If so, what lessons can we derive from Justice Jackson's experience?
These are the questions we seek to address.1
Justice Jackson's Role
President Truman appointed Justice Jackson to serve as the chief United
States prosecutor and former Attorney General Francis Biddle to sit
as the tribunal's United States judge. Jackson had earlier served by
appointment of President Truman in the negotiations that led to the
adoption of the London Charter and the authorization of the Nuremberg
In the negotiations leading to the London Charter, Jackson and his British
counterpart had succeeded in imposing the traditional Anglo-American
trial format on the proceedings, rather than Continental or Soviet-style
alternatives. The single most notable departure from the traditional
Anglo-American format was that the judges sat both as judge and jury,
with all questions of guilt and punishment having been committed to
them. Despite the novelty of the proceedings, the trial itself followed
a traditional format.
At trial, Jackson spoke first, and his magisterial opening could only
have exceeded the expectations of those in attendance for high drama
and stirring oratory. "May it please your honors," Jackson
began, "the privilege of opening the first trial in history for
crimes against the peace of the world imposes a grave responsibility.
The wrongs which we seek to condemn have been so calculated, so malignant,
and so devastating that civilization cannot tolerate their being ignored
because it cannot survive their being repeated."
Jackson observed that the tribunal would not be asked to convict the
defendants based on the testimony of their foes. Rather, Jackson said,
"there is no count in the indictment that cannot be proved by books
and records." Given the German passion for documentation and organization,
Jackson suggested, the prosecutors would introduce voluminous documentary
evidence to support the charges. Indeed, much of the case presented
by Jackson to the tribunal consisted of documentary evidence, including
documentary films (some compiled from film taken by the Germans themselves)
on the Nazi concentration camps.
Although the prosecution case was punctuated by occasional moments of
great impact, such as the films and the testimony of witnesses who had
been victimized by the Nazis, its emphasis on documentary proof deprived
it of much drama. Courtroom observers therefore looked forward to the
time when the defendants would testify on their own behalf and confront
their accusers. The prosecution closed its case on March 4, 1946, and,
after substantial procedural wrangling, the defense opened with Goering's
Goering Takes the Stand
The courtroom was packed for Goering's testimony. He took the stand
with the attitude of an unrepentant Nazi. His direct examination reviewed
his distinguished military service during the First World War and his
fateful meeting with Hitler in 1922. Goering eloquently recalled the
bond he had formed with Hitler based on their mutual opposition to the
Goering expounded at length on the theory and practice of Nazism according
to its practitioners. He proclaimed that he had "done everything
possible to strengthen the National Socialist movement, to increase
it, and have worked unceasingly to bring it to power under all circumstances
and as the one and only authority..."
He testified on direct for two-and-a-half days, avowing responsibility
for the planning and execution of Germany's aggressions up to the invasion
of the Soviet Union, which he opposed. He also acknowledged responsibility
for other incriminating actions such as the punishments imposed on German
Jews after the Nazi looting of property owned by Jews during Kristallnacht
in 1938. As to those actions for which he acknowledged responsibility
he also articulated historical justification. He denied knowledge of
and responsibility for a few of the alleged war crimes, most notably
the systematic extermination of the Jews in Nazi concentration camps.
The Cross-Examination Begins
Just after noon on March 18 Jackson rose to cross-examine Goering.
Jackson began by eliciting Goering's ready admission that Goering was
the world's foremost authority on Nazism:
Jackson: You are perhaps aware that you are the only man living
who can expound to us the true workings of the Nazi party and the
inner workings of its leadership?
Goering: I am perfectly aware of that.
Jackson then proceeded to ask a broad range of questions regarding
Nazi policies and practices. These questions addressed the elimination
of democratic government and its substitution by Hitler's dictatorship,
the meaning of the "Leadership Principle," the prudence of
the German invasion of the Soviet Union, the initial establishment of
concentration camps in 1933 and 1934, the purge of Hitler's internal
Nazi opposition on Goering's instigation and direction in 1934, the
Reichstag fire, the Treaty of Versailles, the German annexation of Austria,
and other subjects.
Representative of the questions Jackson asked in this sequence is the
Jackson: Now, was this Leadership Principle supported and
adopted by you in Germany because you believed that no people are
capable of self government, or because you believed that some may
be, not the German people; or that no matter whether some of us are
capable of using our own system, it should not be allowed in Germany?
Goering ran rings around Jackson, prefacing his response by saying,
"I beg your pardon, I did not quite understand the question, but
I could perhaps answer it as follows..."
To get the flavor of Goering's side of the cross-examination, it is
worth quoting the remainder of Goering's response in full:
Goering: I consider the Leadership Principle necessary because
the system which previously existed, and which we called parliamentary
or democratic, had brought Germany to the verge of ruin. I might perhaps
in this connection remind you that your own President Roosevelt, as
far as I can recall — I do not want to quote it word for word
— declared, "Certain peoples in Europe have forsaken democracy,
not because they did not wish for democracy as such, but because democracy
had brought forth men who were too weak to give their people work
and bread, and to satisfy them. For this reason the peoples have abandoned
this system and the men belonging to it." There is much truth
in that statement. This system had brought ruin by mismanagement and
according to my own opinion, only an organization made up of a strong,
clearly defined leadership hierarchy could restore order again. But,
let it be understood, not against the will of the people, having in
the course of time, and by means of a series of elections, grown stronger
and stronger, had expressed their wish to entrust their destiny to
the National Socialist Leadership.
It is difficult to find a theme in Jackson's cross-examination or even
to understand what he was attempting to accomplish beyond laying the
ground for arguments concerning the conspiracy count of the indictment.
Goering made him appear foolish. Having predicated his examination on
the assertion that no one alive knew more than Goering about the Nazi
party, Jackson had little ground to stand on in following up Goering's
pugnacious answers to his questions.
Completely unable to control Goering or to score a relevant point, Jackson
sought to have the tribunal confine Goering to answering his questions
"yes" or "no" rather than with Goering's accustomed
speeches. Given speeches like Goering's answer quoted above, Jackson's
desire to limit Goering's answers was understandable. But Jackson even
sought to restrict Goering's answers to Jackson's own compound questions.
In any event, the tribunal refused Jackson's request to order Goering
to restrict his answers, and its refusal to intervene on Jackson's behalf
further flustered Jackson. He contested the issue pointlessly with the
Cross-Examination Day Two
The following day Goering's testimony was interrupted by the presentation
of Goering's final defense witness. Jackson was able to resume his cross-examination
only briefly at the end of the day, and with a notable lack of success.
Although he tied his questions to documents reflecting Goering's participation
in meetings Jackson suggested were Reich Defense Council conferences
Goering had denied attending, Goering successfully deflected Jackson's
The day ended again on a downbeat note. Jackson turned to another document
and directed the day's final line of questions to Germany's secret preparations
for war. Jackson's intended line of questions was undermined by the
mistranslation of a key word in the document on which Jackson relied,
a mistranslation seized on by Goering. Goering added that he did not
recall the United States publicizing its mobilization plans. Jackson
fulminated at length and implored the tribunal to direct the witness
to restrict his answers: "Well, I respectfully submit to the tribunal
that this witness is not being responsive ... It is perfectly futile
if we cannot have responsive answers to our questions."
Worst Cross-Examination in History?
On March 20 Jackson resumed the tirade with which he had concluded
the previous day. The tribunal again denied his request to restrict
Goering's answers during cross-examination to affirmative or negative
responses, pleading with him to ignore Goering's irrelevant interjection
of the day before. Jackson asserted that the tribunal was allowing the
trial to get out of hand. Judge Lawrence, the president of the tribunal,
responded that he "had never heard it suggested that the counsel
for the prosecution have to answer every irrelevant answer made in cross-examination."
Jackson refused to relent, protesting that the United States was being
denied its right of cross-examination and that the tribunal was ceding
control of the examination to Goering.
Jackson kept up his argument until his ultimate acceptance of the tribunal's
ruling transformed a routine evidentiary ruling into a bitter personal
defeat. He cannot have been proud of his performance. In his 1947 book
on the trial, Jackson silently omitted from his selection of trial excerpts
his exchanges with the tribunal over its refusal to restrict Goering's
Jackson wasted the beginning of the third day on this fruitless exchange,
but he had come prepared with his strongest hand. At last Jackson turned
to the Nazi treatment of the Jews and Goering's issuance of crucial
anti-Jewish edicts dating back to the Nuremberg Laws on Citizenship
and Race promulgated by the Reichstag over Goering's signature in September
1935. Goering's numerous subsequent edicts had furthered the anti-Semitic
policies that ultimately led to the extinction of German Jewry. During
this part of the examination Jackson effectively used those decrees
signed by Goering himself to establish his participation in and responsibility
for the acts in question.
The culmination of this series of questions addressed Goering's letter
of July 31, 1941, to Reinhard Heydrich, chief of the Reich Security
Main Office, ordering him to prepare a plan for the "final solution
of the Jewish question." Goering's letter is the first such document
to refer in writing to the "final solution." Goering countered
deceptively, referring to a similar word earlier in the letter, that
the German word in issue had been incorrectly translated as "final
solution." Rather, according to Goering, the correct translation
was "total solution" and referred only to "the emigration
of the Jews." Holding in his hands what must be one of the most
incriminating documents known to history, Jackson did not pursue the
Jackson moved on to a series of questions regarding Kristallnacht, the
November 1938 Nazi riots that destroyed Jewish shops and synagogues
throughout Germany, purportedly in response to the assassination of
an embassy functionary in Paris by a German Jewish emigrant. Here Jackson
effectively used the stenographic minutes of a meeting over which Goering
presided immediately after the riots to demonstrate Goering's revelry
over the Nazi expropriation of Jewish property and glee in the imposition
of related financial penalties: "The pigs will not commit a second
murder so quickly. I would not like to be a Jew in Germany."
Jackson declined to end his examination there and concluded to no substantial
effect. He raised a variety of unconnected and relatively anticlimactic
issues. Jackson therefore buried his line of questions regarding Goering's
edicts on Jews in the middle of his examination. Among the issues Jackson
touched on in his concluding line of questions were Goering's theft
of art, the Luftwaffe bombing of Warsaw, and the German execution of
The conclusion of the cross-examination confirmed the impression of
observers, decidedly including the tribunal judges, that Goering had
generally gotten the better of Jackson. Even making allowance for the
difficulty of cross-examining a witness in a foreign language, it is
difficult to be charitable in evaluating Jackson's performance. Given
the occasion, the prominence of counsel, the character of the witness,
and the evidence counsel had available to work with, Jackson's generally
ineffectual cross-examination deserves to be ranked among the worst
of all time.
Guidelines for Successful Cross-Examination
Any lawyer familiar with the traditional "rules" or "commandments"
of cross-examination can catalogue the technical mistakes that contributed
to Jackson's difficulties in his cross-examination of Goering. We have
no interest in doing so here. Rather, we wish to articulate a few basic
guidelines of our own for the practice of successful cross-examination
that we have found helpful, each of which we think sheds some light
on Jackson's difficulties with Goering at trial. We use four nautical
metaphors to frame our guidelines.
First, the beginning and ending of the voyage should be made memorable
by beginning and ending with the strongest points that can be made.
Following the show business model, our preference is to begin cross-examination
with our second strongest point and end it with our strongest point.
Jackson's cross-examination of Goering did the opposite; it relegated
his best points to the middle of his questioning and therefore partially
dissipated their effect. In addition, Jackson poorly structured each
of the three days of the cross-examination. Jackson's disastrous start
and weak finish stood out both to the tribunal justices and to the courtroom
Second, it is important to sail the boat close to the shore. The significance
of a given cross-examination to a case is usually directly proportional
to the adversity of the witness. In this respect Jackson's cross-examination
of Goering is a classic example. Particularly when examining an intelligent
and hostile witness, cross-examination is no time to go freelancing
in blue waters or to take risks searching for hidden treasure.
How does an attorney "sail close to the shore" during cross-examination?
An attorney hugs the shore by addressing issues that have an anchor,
some piece of evidence that can be used to make the point in issue with
or without the cooperation of the witness. Jackson's use of Goering's
edicts directed at German Jews is a powerful example of anchored examination.
Jackson's engagement with Goering on the issues of Nazi ideology at
the outset of his examination is a good example of sailing without an
anchor on cross.
Third, the examiner should always hold a paddle in reserve with which
to whack the witness and bring him back under control if he begins to
stray. It understates matters considerably to note that Jackson held
some awesome paddles during his cross-examination of Goering, although
he generally failed to use them as such. Instead at crucial moments
he flailed away pointlessly both with the court and with the witness.
There is no substitute for holding a paddle and using it at the appropriate
Fourth, it is unnecessary to cover the waterfront on cross-examination.
There is no need to take up all the issues raised on direct or to pursue
every issue raised by unsatisfactory answers during cross. The goal
is to poke a limited number of holes in the witness's boat in order
to neutralize him. A few successful strikes on issues of credibility
or substance are achievement enough on cross-examination.
If the witness is discredited through the cross-examination, the substance
of the witness's testimony will be diminished. A good lawyer need do
no more than stay with the good stuff. Selectivity is the key.
Perhaps most important of all, one should not forget that even a bad
cross-examination may not sink a strong case. Every trial has its own
peculiar rhythms. Though the case may seem down today, it can rise again
tomorrow. The Nuremberg trial serves as a good example. Despite Jackson's
disastrous cross-examination of Goering, the tribunal convicted him
and sentenced him to death by hanging. Only his suicide moments before
he was to be hanged prevented the sentence from being carried out.
Jackson's ultimate victory over Goering at trial has all but erased
the memory of Jackson's defeat by Goering during cross-examination.
The story of the worst cross-examination in history in its own way has
a happy ending
1 Those who want to judge for themselves can now review the entire
Nuremberg trial transcript, which has been made available online at
Hosted by the Avalon Project at Yale Law School, the site includes a
complete copy of the trial transcript as well as a collection of Nuremberg-related
documents. (All quotations in this article from the examination of Goering
are taken from volume 9 of the original trial transcript, available
on the site of the Avalon Project.)
SCOTT W. JOHNSON, an attorney and senior vice president
with TCF National Bank in Minneapolis, is coauthor of the 8th Circuit
Appellate Practice Manual (MCLE 2001).
JOHN H. HINDERAKER is a partner and trial lawyer at Faegre &
Benson in Minneapolis. He has tried more than 80 cases before juries
and appeared in courts in 15 states.