0915 Page – Leo Frank Georgia Supreme Court Appeals Records, 1913, 1914

Visible Translated Text Is As Follows:

on cross examination if these statements in this affidavit were true, and had denied that these statements were true.

69. Because the Court erred in permitting Mr. Hooper, for the State, to argue to the jury that the failure of the defense to cross-examine the female witnesses who, in behalf of the State, had testified to the bad character of Frank for lasciviousness, was strong evidence of the fact that, if the defendant had cross-examined them, they would have testified to individual incidents of immorality on the part of Frank; that the defendant's knowledge that they would bring out such incidents was the reason for not cross-examining the witnesses; and that the jury could, therefore, reasonably know that Frank had been guilty of specific incidents of immorality other than those brought out in the record.

The defendant strenuously objected to this line of argument on the part of Mr. Hooper and urged the Court to state to the jury that the failure to cross-examine any of said witnesses justified no inference on the part of the jury that the cross-examination, if had, would have brought out anything hurtful to the general character of Frank.

This the Court declined to do and permitted the argument; and, in so doing, committed error, for which a new trial should be granted.

70. Because the solicitor-general, in his argument to the jury, stated, as follows: "The conduct of counsel in this case, as I stated, in refusing to cross-examine these twenty young ladies, refutes effectively and absolutely that he had a good character." As I said, if this man had had a good character, no power on earth could have kept him and his counsel from asking where those girls got their information, and why it was they said that this defendant was a man of bad character. Now, that is a common sense proposition; you'd know it whether it was in a book or not. I have already shown you that under the law, they had the right to go into that character, and you saw that on cross-examination they dared not do it." . . . Whenever anybody has evidence in their possession and they fail to produce it, the strongest presumption arises that it would be hurtful if they had; and their failure to introduce evidence is a circumstance against them. You don't need any law book to make you know that; that is true, because your common sense tells you that whenever a man can bring the evidence, and you know that he has got it and don't do it, the strongest presumption arises against him. And you know, as twelve honest men seeking to get at the truth, that the reason these able counsel did not ask those hair-brained fanatics, as Mr. Arnold called them before they had ever gone on the stand—girls whose appearance is as good as any they brought, girls that you know by their manner on the stand are speaking the truth, girls who were unimpeached and unimpeachable, the reason they didn't ask them. Why? They dared not do it. You know it; if it had never been put in the law books, you would know it."
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