THE ART AND PLAN OF CROSS EXAMINATION

THE ART AND PLAN OF CROSS EXAMINATION

BY: GAZAL BHATNAGAR,VIDHYARTHI DARPAN

Q.) WHAT DO YOU MEAN BY CROSS EXAMINATION? WHY IS IT IMPORTANT?

Ans) Cross examination is a technique that is implemented and practiced by prosecutors by the means of direct examination. It is used to enquire averse deponent in depositions and in civil and criminal trials.

Cross examination is a sharp art in which the probability of explanation of witness answers are low. Basically, used to impeach a witness in the following ways:

• It reveals the witness character whether biased, prejudiced, lying or is an egotism.
• Shows witness past behavior usually dismally or has been charged with a crime like deceit and lying.
• Uncovers witness reputation when it comes to truth telling.

Cross examination is a type of interrogation by the opposing party of the witness that is called for testing. If a party calls a witness to provide testimony and statements in its favor, the party opposing the claim has the right to examine such a witness. Examination- in- chief occurs after cross examination which is the examination of the witness by the party being called. Both examination must relate to the relevant facts.

GOALS OF CROSS EXAMINATION:

• Authenticates the evidence of the state’s witnesses.
• Acquires genuine acknowledgement that are supportive to the state’s case.
• Lessen the defense case by impeachment of the witness on the stand.
• Minimize the defense case by impeachment of other defense witnesses through the witness on the stand.

THE TEN COMMANDMENTS WHILE CROSS EXAMINING:

• Be brief.
• Use short questions with plain words.
• Ask only leading and suggestive questions.
• Never ask a question to which you do not know the answer.
• Listen to the answers given by the witness.
• Do not quarrel with the witness.
• Don’t let the evidence (witness) clarify.
• Do not ask the witness to repeat the testimony he/she gave in-chief.
• Avoid long questions.
• Save the explanation for summation.

IMPORTANCE OF CROSS EXAMINATION:

• Builds credibility.
• Creates clarity.
• Constructs cracks.
• Used for confirming and evaluating the truth of a person’s testimony, to develop the testimony further and to achieve other objectives.
• The aim of a cross examination is to investigate the evidence and try the reliability of a witness who has been called and given proof in-chief.
• Cross examination is an effective tool which is devised for the ascertainment of truth, discredit and impeach the testimony of a witness, assist evidences that are favorable to the side of a cross examiner and provides independent proofs beneficial to the position of a cross examiner.

It is a very powerful mechanism which testifies the veracity of a witness and the accuracy or completeness of what he/she says. It is a form of intensive questioning with the expected answers hinted to in such questions itself.

The cross examination is also known as” ex-adverso”, used to expose the inaccuracies of the evidence of a particular witness.

Section 146 in the Indian Evidence Act 1872 says that a witness during cross examination, may, in addition to the questions herein before referred to, be asked any questions which tend

• To test his veracity.
• To find out who he is and what his place in life is.
• Shaking his reputation by damaging his character whether the answer to these questions may tend to criminalize him directly or indirectly, or may expose him or tend to expose him to a fine or revocation, directly or indirectly.

 

Q.) GIVE A LIST OF DO’S AND DON’TS FOR AN EFFECTIVE CROSS EXAMINATION.

Ans) DO’S OF CROSS EXAMINATION:

1. Have a command on leading questions only-:

By doing so, the witness is permitted to answer only “yes” or “no”.

2. Restrictions on questions-:

Try to control the questions you ask. Use only simple and easy questions. Do not ask open ended questions, narrative generating questions, compound, and multipart questions.

3. Limit the level of flow-:

Conduct cross examination in an order and by subject matter. Always ask questions in a sequence that tells a story which is followed easily. Try to use descriptive words to highlight the significant points. Impeach the credibility of a witness before attacking the credibility of his/her testimony.

4. Restrain to the subject matter-:

Do not allow the witness to restate his straight testimony. Refuse to explore uncharted territory and use verbatim notes on the witness’s direct testimony.

5. Be polite and courteous-:

Create the impression of being friendly and fair. Do not be harsh and overbearing. This will make a pleasant courtroom atmosphere, appealing to jurors, and does not alienate them from your client.

6. Keep faith on questions that you ask-:

Have a good faith basis for questions that you ask, if challenged by your opponent and are unable to provide sufficient proof for your question.

7. Begin with major points-:

When the jury finishes listening to the direct examination then start their thought processes to be in your favor by using extensive details.

8. Wind-up the cross examination with favorable points-:

Leave strong impression and thoughts on jury while ending the case using major points.

9. Organize the case-:

If the case is well ordered, the jury will not only appreciate the lawyer but also move the case rapidly and back to work sooner.

10. Use of space in the courtroom-:

Try to maintain distance and position. It keeps the jury more alert and contributes to emphasis and effect.

DON’TS OF CROSS EXAMINATION:

1. Never argue with a witness-:

The examiner should not argue or quarrel with the witness. Overcome the situation by eliciting the answers you need or use skillful questioning for the responses.

2. Don’t answer the questions for an opposing witness-:

The examiner should never respond to the opposing party, as by doing so the control goes in the favor of the witness rather to the lawyer/examiner.

3. Never argue with the judge-:

Try to make strongest argument while being respectful towards the judge. Do not argue in front of the jury and audience as it will lead to a mortal sin against self-control. Be a loyal examiner during the case as much as you can.

4. Don’t persecute yourself by your opponent-:

The opposing counsel will try to bait you so that you may lost your control and make mistakes. Do not be tempted and baited (mostly used in depositions, courtrooms and even over phones). Stay confident and play your game without losing self-control and concentration at your client’s expense.

5. Don’t let the jury know and see that your case has been hurt by an answer-:

Never reform your demeanor, expression, and the pace of your cross examinations. If you do, you risk revealing that your case has been hurt and damaged. This time requires utmost self-control. 

6. Don’t “KILL” a witness unless the jury wants him to be demolished-:

Never try to stab the bull. If the examiner plunges the sword into the body of the bull, the crowd might feel sorry for that bull.

7. Don’t cross examine if there is no impact-:

If no result, outcome, and impression appears by cross examining then announce that you have no questions. This itself will carry a big impact.

8. Don’t re-affirm points that hurt you-:

Avoid giving opportunity to the witness who has given direct testimony against you and to repeat that testimony.

9. Don’t rely on the judge to discipline the witness-:

Try to control the witness by your own. Do not call upon judge as it will lead to the weakness of courtroom. Judge should be used as a last resort.

10. Don’t be cocky and arrogant-:

Try to keep the tone in a respectful and truth-seeking manner. Ask as many killing questions as you can but do not let the jury to see you as a conceited examiner.