This article is written by Yash Kapadia. This article acts as a guide when one is preparing for cross-examination of witnesses. The tips given in this article are words of wisdom from eminent lawyers in India.
Disclaimer: This article has been written by referring to various webinars that can be accessed online and due diligence has been given to the speakers.
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“Cross-examination, — the rarest, the most useful, and the most difficult to be acquired of all the accomplishments of the advocate…. It has always been deemed the surest test of truth and a better security than the oath.”- Cox
Cross-examination is often considered to be the most challenging branch of the multifarious duties of the advocate. Great lawyers have often failed in it, while success has crowned the efforts of certain lawyers who might otherwise be regarded as a mediocre grade in the profession. Yet personal experience and the emulation of others trained in the art, are the surest means of obtaining proficiency in this all-important prerequisite of a competent trial lawyer.
Through this article, we shall enlist the tips and tricks on how to master the art of cross-examination which eminent lawyers have learnt through their decades of experience. However, it is important to note that these tips and tricks are not exhaustive in nature as cross-examinations are a double-edged sword. There is no hard and fast rule to master cross-examination but with these tips and tricks, one can definitely be ahead of the curve and be able to learn the approach one has to take to master this art which can make or break an entire case.
Statutory provisions on cross-examination
It is extremely important to understand that the main objective of cross-examination is to ascertain the facts, undisclosed ones or the ones which support the theory which has been put forth by one of the parties to the case.
In a criminal trial, Section 138 of the Indian Evidence Act, 1872 (“IEA”) deals with the order of examinations. It is stated therein that cross-examination is preceded by examination-in-chief. Examination-in-chief as described in Section 137 of IEA is the examination of a particular witness by a party who has called that witness to give evidence. This is then followed by cross-examination and then re-examination, if necessary.
In civil trials, the Code of Civil Procedure, 1908 is referred to in order to understand the procedure for cross-examination. Order 18 precisely deals with the entire procedure that needs to be followed for the examination of witnesses.
How to master the art of cross-examination
When we talk about the art of cross-examination, it is crucial to remember that it is a double-edged weapon. Various lawyers ask relevant questions that help them build and win their case whereas at certain times wrong questions are asked which lead to overturning the entire case in the opposite party’s favour.
- As spoken by Mr. Ashok Arora (Advocate and Secretary, Supreme Court Bar Association) in a webinar, one should master the facts and the laws involved. The following were certain tips recommended to keep in mind.
- The purpose of doing the cross-examination must always be kept in mind. In civil cases, it is preferred to not dig deep into admitted facts of the opposite party if they are in your favour.
- However, always be ready with Plan A, Plan B, Plan C and so on, meaning that one must be prepared for all situations as even one answer can demolish the line of cross prepared by the counsel arguing.
- With respect to the chronology of witnesses, a general approach is that if there are two witnesses then an endeavour must be made to cross-examine both of them on the same day. The purpose of the prosecution is to make sure witnesses contradict each other and the same can be done on the same day.
- Also, the investigating officer must examine after all witnesses have been cross-examined. This is done so that one can compare and ask for clarifications from the investigating officer. All in all, he also pressed on the need to enhance and work on one’s personality while cross-examining a witness and keeping the purpose of what is needed from the witness very clear.
- By quoting his experience of cross-examining the legendary Ram Jethmalani, Mr. Arora stated that no question is less meaningful or wastes the court’s time if, according to you, it leads you closer to ascertaining various facts. Lastly, he asserted that each question of cross-examination is extremely important and one mistake can create unreasonable situations. However, in order to avoid this, one must know every fact and the law at the back of his hand.
- Justice A.V. Chandrasekhar (Former Judge, Karnataka High Court), whilst remembering his days as an advocate in this webinar, stated the following about cross-examination:
- The art of cross-examining cannot be acquired in a day or two, it takes time and effort applied consciously by the lawyer to master it.
- He stated that one must make a list of questions and mark the ones which the lawyer is sure what the answer would be. Then mark the ones which the lawyer has a doubt about and prepare further questions in order to ascertain more and more facts that have not yet been discovered.
- One has to thoroughly read the case papers if one is appearing for the Plaintiff and in case one appearing for the Defendant then one must understand the case put forth in the pleadings and documents filed and marked exhibits.
- If one has to cross-examine a witness who will be examined to support the case of the prosecution then one must know how he is connected to the accused, if so then in what manner.
- Every witness’s background must be referred to in all scenarios.
- He stated that one must be as brief as possible, ask plain questions and ask only leading questions.
- Never ask a question you don’t know the answer to or know the consequences of the answer.
- Lastly, on no account a lawyer must quarrel with a witness. Utmost respect must be given to the witness and our goal must be to ascertain the truth. Avoid repetition of questions and make sure that the witness is not given any sort of opportunity to summarise the case. All in all, for the readers, this is probably one of the best webinars on cross-examination on Youtube.
- Certain pointers for an effective cross-examination were laid down by Mr. Amish Aggarwala, Central Government Counsel and Disputes Lawyer at the Supreme Court of India in an interactive session hosted by Lawsikho. They are as listed below:
- Always assume that the investigating officer who has recorded statements under Section 161 of the CrPC is never actually recorded verbatim.
- Keep in mind to pick out facts recorded by the investigating officer which contradict themselves when one is cross-examining the same witness and investigating officer. There are various intricacies one can catch in such situations.
- When one wants to prepare for cross-examination, read judgements that have discussed the particular offence which relates to the matter at hand. Study how the court has dealt with the testimony, not necessarily the High Court or Supreme Court but Trial Courts as various aspects are taken into account and on record. Try to use the relevant information and use it in the cross-examination.
- Ask for depositions from colleagues or certified copies of depositions can be applied in a case disposed of matters from the courts.
- Do not refrain from asking the most basic questions. Even one piece of information given under cross-examination can contradict any disclosed facts on record and can turn around the case or at least raise questions on the character of the witness.
- In this webinar, Senior Advocate Mr. Ramesh Gupta gave a brief overview of the relevant sections dealing with cross-examination, examination-chief and dealing with evidence. He further gave practical tips on how to master the art of cross-examining. A summary of what he stated is as follows:
- One must understand what is evidence and be well versed with the Indian Evidence Act, 1872.
- As a defence lawyer, the only tool available with the defence to discredit the prosecution’s case is by cross-examination. The basic structure and foundation of the prosecution case must be demolished by contradicting various disclosed facts.
- Pick out every point in the facts and any part of the pleadings which is disputed and make sure that questions relating to them are asked in the cross-examination proving them to be in the arguing counsel’s favour.
- In the case of arguing as a defence lawyer, one must understand the “why” is that particularly relevant to be asked. Only if it is necessary to obtain information from a witness only then that witness must be cross-examined.
How to conduct a virtual cross-examination
This subject was taken up by renowned advocate Mr. Garv Malhotra, Partner of Skywards Law in a webinar held amidst the ongoing COVID-19 pandemic.
He stated that cross-examination of witnesses on the screen may lead to the re-birth and metamorphosis of this practice into a completely new art form. There are new things to be learned. Cross-examination through virtual hearing is an evolving topic even though many people still prefer physical hearings. However, virtual cross-examinations look nothing like you see in the movies. It is a very calm and composed process that has a question and an answer. Nonetheless, there are very few high pumped adrenaline heated moments but they are few and far between. Many witnesses can be examined on more mundane points. However, people still prefer examining key witnesses in person because of the ability to note the witnesses’ body language, demeanour and various other factors.
Even some sort of guidance based on limited experience on this topic is still better than no guidance on how to do this sort of examination well. In this respect, Mr. Malhotra shared a few points to keep in mind while doing a witness examination on the screen which are as follows:
- The witness usually appears bigger and closer than how it happens when you are doing the examination in a physical hearing. In a physical hearing, usually, the witness is standing or sitting on the other side and you are from a distance examining them whereas in a virtual hearing one does have the witness right in front of them and they can probably bring the camera closer further when the counsel starts off according to their preferences and advantages. The facial expressions and uneasiness portrayed on-screen too are very impactful.
- When one is doing a virtual cross-examination, it is extremely important to ensure that the oath is administered to the witness. The reason is, sometimes the counsel may forget this in virtual settings and one has to remind the witness that he or she is under oath at a particular time in the news only to realise that one has forgotten to administer the oath.
- It is extremely important to be well organised with the documents in soft copy. Especially the ones which the witness is going to be asked to refer to. Very often one wants to draw the attention of a witness to a document to verify a sign or a particular part of a document.
- Keep your eye on the Tribunal, either by yourself or through any of the colleagues involved in the matter.
- What one must keep in mind is that the goal is to convince the tribunal and not the witness.
- If a witness is freezing on technical questions or if one is apprehending that someone is feeding the witness answers during the virtual hearing, one must mention the same to the tribunal and sometimes one can read the same into the live transcript which can be used at the time of closing submissions.
What we derive from some insightful and knowledgeable advice and tips from eminent trial lawyers is that excelling at cross-examination is no cakewalk. Probably, it is one of the most difficult areas to master one’s art of advocacy in. However, the same can be done with hard work and consistent efforts. Being in the habit of reading all documents relating to the case, being updated with the recent landmark case laws keeps one ahead of the curve when approached to appear for cross-examination.
With respect to virtual hearings and cross-examinations, we are probable that there is a shift taking place in the way hearings are being taken forward by adapting to technology and with technology always getting better, we are left to see if the future of cross-examining can be done at a larger scale than today in the future.
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