This article is written by Souradh C. Valson from Government Law College, Thiruvananthapuram. This article explains the different methods to follow for a successful cross-examination.
If there is a skill that every lawyer should learn, it is undoubtedly the art of cross-examination. It is much more than asking a set of questions to witnesses, it is an art form that requires years of practice to master and perfect. In this article, I attempt to simplify the complexity of cross-examination and provide some guidelines for effective cross-examination.
What is cross-examination
An examination is simply the process of asking relevant questions relating to the fact in issue to a witness. Examination in chief, Cross-examination, and Re-examination are the three ways to examine a witness. The Indian Evidence Act, 1872, prescribes examination of witnesses in civil and criminal cases. In civil cases, the plaintiff has the right to begin (O.XVIII, R.3), the prosecutor or complainant begins matters in a criminal case. The examination of a witness by the party calling him is chief-examination, and by the other party is cross-examination Section 137.
The important points relating to cross-examination:
1) The opposite party is entitled to a fair opportunity to cross-examine.
2)The right of Cross-examination is available only to the adverse party. However, the party calling a witness can cross-examine that witness if he turns hostile Section 154. A co-defendant is liable to cross-examination only when his interest is adverse to that of the defendant.
3) Conducting cross-examination without chief examination is not permissible Section.138
4) If any evidence produced by police on the interrogation of a witness is prejudicial to the accused, cross-examination without examination in chief is permissible.
5) Non-appearance of the counsel on the date fixed doesn’t prevent the party from recalling the witness for cross-examination.
6) Failure to present a witness for cross-examination after examination in chief will deprive the credibility of his evidence.
7) The court has the power to put questions to a witness if he is confused during cross-examination.
8) Cross-examination is conducted viva voce.
9) A fact is non-disputed after cross-examination if the opposite party fails to challenge any statement of fact made by a witness during the examination in chief.
10) If the adverse party waives the right to cross-examine, they cannot make any grievances about it.
Purpose and need to cross-examine
Cross-examination is the most effective tool in law to elicit the truth. Cross-examination is necessary to give credibility to the testimony made by a witness. Evidence given by a witness is admissible only if the opposite part tests the truthfulness by cross-examination.
Aim and subject-matter of cross-examination
Cross-examination aims to discredit the accuracy, credibility, and value of the evidence stated by the witness during a chief examination. It also enables the cross-examining party to run through the material facts given by the witness to discover and reveal any inconsistencies, or to reveal any concealed information and facts which will strengthen the case.
The aim of cross-examination differs for each type of witness, and they are as follows:
- Aim for cross-examining a fact witness (not an expert)
- Extracting favourable facts and information
- To dispute the validity and accuracy of the testimony.
- Challenging the credibility of the witness
- Using the witness to:
- Strengthen the claim made by one of your witnesses
- Impeaching the credibility of the opposite party’s witness
- Introduce your narrative to the court
- Aim for cross-examining an expert witness. In addition to the above aims, it may also have the following objectives:
- To reduce the scope and need of the expert witness.
- To pinpoint the area of his testimony that exceeds his competency.
- To identify the examined and unexamined documents.
- Questioning the credibility of the opinion on the grounds of:
a. Insufficient data
b. Unscientific procedure
c. Arbitrary assumption
- Changing the opinion to reduce its effect
- To establish the credibility of your expert.
Long years of practice are required to master the art of cross-examination, so it is not possible to enact a set of rules to govern it. However, the Evidence Act lays down a set of guidelines for cross-examination. They are as follows.
- Cross-examination must pertain to the relevant facts. The opposite party has the freedom to not restrict the questions to those introduced in the chief examination. (s.138)
- Cross-examining the witnesses who produce documents is not permissible. Section 139
- Cross-examining a witness relating to previous statements made in writing or reduced into writing and on relevant issues is permissible. Section 145
- The cross-examining party can put any questions to the witness to:
- Check his credibility.
- Understand who he is and his role in life
- Reduce his credit by damaging his character. Section 146
5. The witness is not excused from answering any relevant questions put to him Section.147
6. Irrelevant questions are permissible if the allegation seriously affects the credibility of the witness.
7. The following are considered to be improper questions
- Questions relating to remote matters, which does not affect the credibility of the witness
- Those allegations against the character of a witness, which has no relevance to the evidence given by him.
8. During cross-examination, the party should avoid all indecent questions.
9. If a witness turns hostile, the party calling him may cross-examine him.
Preparation for cross-examination
Preparation is crucial for a successful cross-examination. One must prepare for both fact witnesses and expert witnesses.
Preparation for fact witnesses
The prosecution may call any witness from the list of witnesses presented. Preparation should start early and continue until the commencement of the trial. The first step is to collect the statements of the witnesses. After it is collected, the party who cross-examines should thoroughly check it to understand the case of the opposite party. The cross-examiner may discredit the witness with the inconsistencies in their statements. Finally, a thorough background check will help in identifying the previous conduct and character of the witness. It includes; criminal charges, prior testimonies, benefits from the outcome, and reasons to bear a grudge.
Preparation for Expert witnesses
Preparation is a very crucial step before cross-examining an expert witness. They are masters of their fields. In every cross-examination of an expert, the lawyer must be well aware of the concerned areas of science. The vocabulary of the expert is a must know, or else they may fool you with scientific jargon. The cross-examiner should try to figure out the limitations of their field, presence of any bias, previous statements inconsistent with current opinion.
Make sure you have a cross-examination plan
Cross-examination is one of the most reliable methods to extract the truth from the witnesses. However, it can act as a double-edged sword if not wielded correctly by harming the cross-examiner without producing the desired effect. It is a skill acquired with practice. Lawyers should refrain from a severe cross-examination unless there is a strong belief in breaking down a witness.
The chief examination determines the direction of the cross-examination. Therefore, the usual procedure is to take each relevant point and cross-examine the witness on it. By doing this, the opposite can identify the discrepancies in the chief examination and develop a line of defence.
Due to its unpredictable nature, it is necessary to have a proper plan before cross-examination. There is no hard and fast rule to plan for a cross-examination.
Given below is a basic framework of a cross-examination plan.
- The cross-examiner should make a list of the assertions and statements required from the witness. If necessary, try to force an admission.
- Separate the necessary points and create a list of facts and opinions that you plan to challenge. Eliminate everything unnecessary.
- Make the expert recognize the author of the book or passage that you wish to use for disproving him, then point out the contradictions. In this way, challenge the opinion of the expert.
- List out all the inconsistencies. After careful consideration, ascertain the important ones and use them against the witness.
- Given below is a basic plan to structure a cross-examination.
- Don’t write all the questions that you wish to ask. Examine the witness in the form of a conversation. However, if you plan to impeach the witness by contradiction with a previous statement, a predetermined question can trap the witness and help to establish the inconsistency.
- Start with the examination with easy questions, as you further examine the witness and ask the more difficult ones.
- During the examination of an expert, create a situation where the expert must produce the required answers. For example, an expert is more likely to agree with the cross-examining party if he uses reliable materials to contradict the expert.
- Leave the witnesses guessing for your intention. Try scattering the connected points throughout the examination and connect them in the arguments.
- Structure the questions to get a favourable response. Realize that the cross-examination is not immune to failure, and frame some backup questions if things don’t go according to plan.
- Always finish the cross-examination by making a strong and undeniable point.
Keep it short and simple
The cross-examiner should try to control the witness during the examination. Always reduce the complex questions into simple ones. Simple cross-examinations are easy to understand and dramatic. The whole point of a cross-examination is to obtain the truth from the witness. Lengthy questions may make comprehension difficult. A simple method is to check if you have to breathe while putting a question. If you have to, it’s too long.
Avoid open-ended questions
If the answer to the question is not yes or no, then it is an open-ended question. The general advice given by lawyers is to avoid open-ended questions. The problem with an open-ended question is that the lawyer is asking a question to which he doesn’t know the answer. By asking open-ended questions, the lawyer is giving control to the witness. At times an experienced lawyer may also use open-ended questions.
Example: After a series of questions relating to the credibility of a document, a lawyer asks, “where is the attestation of the document mentioned?”. Although an open-ended question, the witness is compelled to make the answer to the point.
Know when to stop
If evidence given during chief examination is clear and conclusive, the opposite party need not cross. That would only strengthen the evidence. Also, there is no need to cross-examine the witness whose evidence he admits. A careless cross-examination may lead to the admission of previously inadmissible evidence.
Use only leading questions
A question that suggests the answers are called leading questions. Questions suggesting a subject is not a leading question. Leading questions are only allowed in cross-examination because its object is to elucidate the truth. The general rule is to compel the witness to say yes or no after every question.
Example: “Is true to say that you were present at the house of X during the murder?” to this question, the witness either answers yes or no.
The ability to use a leading question enables the cross-examiner to control the witness. The witness has to give specific answers.
Destroying the witness’s credibility through cross-examination
Destroying the credibility of a witness is necessary to strengthen your case and to weaken the adverse party’s case. The cross-examiner can choose the following methods to discredit the witness:
- The cross-examiner can prove the inconsistencies and can elicit necessary information by making the witness’s answer questions containing who, what, where, when, and how.
- Using the surrounding conditions against the witness.
- Identifying whether the case involves any hearsay evidence.
- Proving the incompetence of a witness.
By confusing him
- If a long time has elapsed, the cross-examiner can discredit the witness by challenging his memory.
- Confusing with other circumstances.
- Through reviewing documents and reconstruction from other sources.
- One of the easiest ways to discredit a witness is by establishing bias.
By changing the expression
- By rephrasing the words of the witness, the cross-examiner can reduce the impact caused by it.
- Another method to discredit the witness is by proving that the witness has exaggerated any part of the testimony.
Conduct during cross-examination
Maintaining a calm and composed mind is always advantageous during a cross-examination. Due to the unpredictable nature of cross-examination, a lawyer must always be on his feet. Try asking the questions politely but firmly. Maintain good eye contact. Always avoid a fight with a witness. If a witness incites you, stick to the backup questions. Listen to the witness carefully and always look for any inconsistencies in their statements.
We can see that the area cross-examination covers is very vast. The guidelines in this article are not exhaustive but merely tries to outline the elements of a good cross-examination. Constant training and practice is the only way to gain mastery over the art of cross-examination.
- The Law of Evidence – B.M Prasad
- The Art of cross-examination- Francis L. Wellman
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