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evidence_law:art-of-cross-examination

Art of Cross Examination

F Wellman: If all witnesses had the honesty and intelligence to come forward and scrupulously follow the letter as well as the spirit of the oath, to tell the truth, the whole truth, and nothing but the truth, and if all advocates on either side had the necessary experience, combined with honesty and intelligence, and were similarly sworn to develop the whole truth and nothing but the truth, of course there would be no occasion for cross-examination, and the occupation of the cross-examiner would be gone.

Meaning of Cross Examination

Cross-examination is the questioning of a witness at a trial or hearing by the opposing party who called the witness to testify. The purpose of cross-examination is to ascertain the credibility of a witness and to bring out contradictions and improbabilities in his earlier testimony.

Cross-examination is a feature of the adversarial process. It allows the defence to confront and undermine the prosecution’s case by exposing deficiencies in a witness’ testimony, including the complainant’s testimony.

The opportunity to cross-examine usually occurs as soon as a witness completes his initial testimony, called direct testimony. Cross-examiners attempt to get the witness to say something helpful to their side or to cast doubt on the witness’s testimony by eliciting something that reduces the witness’s credibility - for example, that the witness's eyesight is so poor that he might not have seen an event clearly. Cross-examination, a powerful weapon—Cross-examination is a powerful and valuable weapon for testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the court, not forgetting at the same time the burden that is imposed on the witness.Wong Kai Chung vs The Automobile Association of Singapore 1)

Who can cross-examine?

In order to ascertain the credibility of the facts that a witness testifies, everything is scrutinized in the cross-examination. Although cross-examination is not always necessary, every party has a right to cross-examine a witness produced by the opposing party.

A witness can be cross-examined by the ‘other side’, i.e. the opponent of the party calling the witness. Any other party to the proceedings, e.g., any co-defendants, may also examine a witness. You cannot cross-examine your own witness unless he/she has been declared hostile by the judge.

Purpose of Cross Examination

Like direct examination, cross-examination, according to Alexander Tanford, is primarily a method of proving your case by eliciting testimony from a witness, when you have reason to believe the witness will be able to provide that testimony. Cross-examination's success depends not on your ability to ask clever questions, but on your ability to control the flow of information. The witnesses you cross-examine possess information favorable to your opponent and harmful to you. Some witnesses will be hostile, some suspicious, and some defensive. None of them will react with gratitude when you attack their credibility. If you fail to control the cross-examination, you invite disaster. If you allow a witness to choose the subject matter of the testimony, the witness may end up repeating the direct examination, explaining away the weaknesses in her testimony, or avoiding the impeachment of her testimony.

There are two main reasons for conducting a cross-examination—

  1. to have the witness give evidence that helps you and your case; and
  2. to ask the witness questions about any evidence they gave earlier that you don't think is correct.

According to Frederic Wrottesley, cross-examination is helpful for the following reasons

  1. to elicit something in your favour;
  2. to weaken the force of what the witness has said against you; and
  3. to show that from his present demeanour or from his past life, he is unworthy of belief, thus weaken or destroy the effect of his testimony.

Testing veracity of witness

The purpose of cross-examination is to ascertain the credibility of a witness and to bring out contradictions and improbabilities in his earlier testimony. Leading questions are limited to matters covered on direct examination and to credibility issues.

“Cross examination is the rarest, the most useful and the most difficult to be acquired of all accomplishments of the advocate. It has always been deemed the surest test of truth and a better security than the oath.” —Edward Cox

Cross-examination is the most reliable and effective way of testing witness credibility, knowledge, and recollection. Goldberg vs Kelly, 2)

A challenge to someone's evidence

When you are cross-examining someone, you can challenge his evidence if you think—

  1. it is incorrect or false; or
  2. it contradicts something they said earlier.

You can challenge a witness’s testimony or statement by—

  1. asking more questions;
  2. showing documents that disprove what they said earlier; and
  3. giving evidence to show that what they said earlier is not what they are saying now.

Preparation for Cross-examination

Effective cross-examination is a critical part of any criminal trial. Successful cross-examination by defense counsel may elicit facts that are inconsistent with the case put forward by the prosecution or it may elicit facts that support the theory of the defense; it may elicit important contradictions in the testimony of prosecution witnesses; and it may highlight improbabilities in the case for the prosecution.

Cross-examination can pose the greatest challenge and provide the greatest reward to any trial lawyer. Perfecting the art of cross-examination requires time and preparation. Successful prosecutors not only prepare for each trial as it comes but also commit the study of general trial technique, especially cross-examination.

“In cross-examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.” Louis Nizer

Proper preparation for cross-examination include the following—

Reviewing the case file

The first step in preparing for a cross-examination is to review the entire file. This will give an overview of the case and a framework from which to work. One of the most important elements of a thorough case review is to go over all witness statements. These statements come in many forms and could be found in police reports, witness statement, published articles, recorded police interviews, or any prior sworn testimony from the case at hand or prior cases.

Interviewing witnesses

Meeting with the prosecution witnesses before the trial is important because it gives the prosecutor the opportunity to assess how they will react to the stress of the courtroom and being subjected to cross-examination.

Once a prosecutor understands the legal parameters, he can focus on the methodology he will use to construct an effective cross-examination. Even with the multitude of possible witnesses and defense tactics, a prosecutor must determine the method or methods he will employ in his cross-examination for each witness.

Order of examinations

According to section 138 of the Indian Evidence Act. Witnesses shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, then (if the party calling him so desires) re-examined. The examination and cross-examination must relate to relevant facts but the cross-examination need not be confined to the facts to which the witness testified on his examination-in-chief.

Examination-in-chief

The examination of a witness by the party who calls him is called his examination-in-chief and it remains his examination-in-chief inspite of his having been asked questions by the party calling him, which otherwise could be asked only in cross-examination by the adverse party. Only the examination a witness by the adverse party is called his cross-examination.

Cross-examination

After the party calling a witness has finished the examination-in-chief, the opposite party has a right to cross-examine the witness. Cross-examination, if properly conducted, is one of the most useful and efficacious means of discovering the truth.Bhojraj vs Sitaram3).

No cross-examination without examination-in-chief

There cannot be any cross-examination without there being any valid examination-in-chief. The essence of cross-examination is that it is the interrogation by the advocate of one party of a witness called by his adversary with the object either to obtain from such witness admissions favourable to his cause or to discredit him. Cross-examination is the most effective of all means for extracting truth and exposing falsehood.

The object is to impeach the accuracy, credibility and general value of the evidence given in chief to shift the facts already stated by the witness to detect and expose which will support the case of the cross-examination party. The exercise of his right is justly regarded as one of the most efficacious tests, which the law has devised for the discovery legal engine ever invented for the discovery of truth. The right of cross-examination belongs to an adverse party and parties who do not hold that position should not be allowed to take part in the cross-examination.

As a general rule, evidence is not legally admissible against a party, who at the time it was given had no opportunity to cross-examination the witness or of rebutting their testimony by other evidence. When two or more persons are tried on the same indictment and are separately defended any witness called by one of them may be cross-examined on behalf of the others.

Though there is no specific provision in the Indian Evidence Act providing for such an opportunity for a defendant-respondent to cross-examine a co-defendant/co-respondent, however, having regard to the object and scope of cross-examination, it is settled law that when allegations are made against the party to the proceedings, before that evidence could be acted upon, that party should have an ample opportunity to cross examine the person who had given the evidence against him. It is only after such an opportunity is given, and witness is cross-examined that evidence becomes admissible. M/s. Ennen Castings (P) Ltd. vs M M Sundaresh4).

Defendant may cross-examine a co-defendant

No special provision is made in the Evidence Act for the cross-examination of the co-accused’s or co-defendant’s witnesses. But the procedure to be adopted may be regulated by the well-known rule that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a cross-examine witness called by one whose case was adverse to his, or who has given evidence against. It there is no clash of interest or if nothing has been said against the other party, there cannot be any right of cross-examination.5)

A defendant may cross-examine a codefendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them. 6)

A defendant may cross-examine a codefendant or any other witness who has given evidence against him, and reply on such evidence, though there is no issue joined between them. 7)

Therefore, it is very clear from the above discussion that no evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant/respondent to cross-examination a co-respondent or a defendant is either from the pleading of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondent, then before the court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine should have an opportunity to cross-examine the said witness, so ultimately truth emerges on the basis of which the Court can act.M/s. Ennen Castings (P) Ltd. vs MM Sundaresh8)

Cross-examination as to previous statements in writing

According to section 145 of the Indian Evidence Act— “A witness may be cross-examined as to previous statements made by him in writing or reduced into writing, and relevant to matters in question, with such writing being shown to him, or being proved; but, if it is intended to contradict him by the writing, his attention must, before the writing can be proved, be called to those parts of it which are to be used for the purpose of contradicting him.

Section 145 of the Evidence Act is in two parts, both of them dealing with cross-examination. The first part deals with cross-examination other than by way of contradiction only. It is not impossible to invoke the second part without putting questions under the first part. Section 145 empowers the court in its discretion to permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse party. The object of section 145 is to give witness chance of explaining or reconciling his statements. Section 145 permits the cross-examination of the witness in any trial, with reference to his previous statement, to establish a contradiction and the manner in which such contradictions can be established. Section 155 of the Evidence Act provides that the previous statement of a witness can be made use of during the cross-examination of that witness for the purpose of impeaching the credit of the witness. Thus, it is the right of a party in a trial to use the previous statements of a witness either for the purpose of establishing a contradiction in his evidence or for the purpose of impeaching the credit of the witness. This right given to a party in a trial under section 145 of the Evidence Act is somewhat controlled in criminal trials by the provisions made in the Code.State of Kerala vs Babu9)

Re-examination

The party who calls a witness has the right to re-examine him on all matters arising out of the cross-examination for the purpose of reconciling any discrepancies that may exist between the evidence on the examination in-chief and that which has been given in cross-examination; or for the purpose of removing or diminishing any suspicion that the cross-examination may have cast on the evidence-in-chief; or to enable the witness to state the whole truth as to matters which have only been partially dealt with in cross-examination.POWEL

Object of re-examination

The object of re-examination is to clear the ambiguities which have arisen upon a cross-examination. There is an erroneous impression that re-examination should only be confined to clarification of ambiguities which have been brought in cross-examination. No doubt, ambiguities can be resolved through re-examination. But that is not the only function the re-examiner. If the party who called the witness feels that explanation is required for any matter referred to in cross-examination, he has the liberty to put any question in re-examination to get the explanation. The Public Prosecutor should formulate his questions for that purpose. Explanation may be required either when ambiguity remains regarding any answer elicited during cross-examination or even otherwise. Questions in re-examination cannot be confined to ambiguities alone, which became exposed in cross-examination. Questions can be put to seek explanation of any matter referred to in cross-examination. Rammi vs State of MP10).

In re-examination, the party has a right to ask all questions which may be proper to draw forth an explanation of the meaning of the expressions used by the witness on cross-examination, if they be in themselves doubtful, and also of the motive, or provocation which induced the witness to those expressions, but he has no right to go further, and to introduce matter new in itself and not suited to explain either the expressions or the motives of the witness. TAYLOR

If the Public Prosecutor feels that certain answers require more elucidation from the witness, he has the freedom and the right to put such questions, as he deems necessary for that purpose, subject of course to the control of the court in accordance with the other provisions. But the court cannot direct him to confine his questions to ambiguities alone which arose in cross-examination.

Even if the Public Prosecutor feels that new matters should be elicited from the witness, he can do so, in which case the only requirement is that he must secure permission of the court. If the court thinks that such new matters are necessary for proving any material fact, it must be liberal in granting permission to put necessary questions.

A Public Prosecutor who is attentive during cross-examination cannot but be sensitive to discern which answer in cross-examination requires explanation. An efficient Public Prosecutor would gather up such answers falling from the mouth of a witness during cross-examination and formulate necessary questions to be put in re-examination. There is no warrant that re-examination should be limited to one or two questions. If the exigency requires any number of questions can be asked in re-examination. Rammi vs State of Madhya Pradesh11).

Presence of other witnesses during examination of one witness

On the start of the evidence of a witness, the other witnesses must be kept of the courtroom. The witnesses should be examined one by one; and where one witness is being examined, the remaining witnesses to be examined later on must not be allowed to stay in the courtroom. Where a witness remains in the courtroom while the other witness is being examined, his examination cannot be refused; only a note is to be made to the extent that he was present in the courtroom when another witness was being examined.Subb Karan vs Kedarnath12).

If a witness is present in the courtroom at the time of examination of other witnesses, the court has no power under the Evidence Act or even under Civil Procedure Code to decline permission to examine witness on the ground that he was present in court while evidence of the other witness was being recorded. The issue as to whether the evidentiary of evidence of such witnesses would be affected by reason of that witness remaining present in court during recording of evidence of other witnesses will depend upon facts of each case.Indur Kartar vs Ms. Priya Sunil Dutt13).

Direction of re-examination

The re-examination shall be directed to the explanation of matters referred to in cross-examination; and, if new matter is, by permission of the court, introduced in re-examination, the adverse party may further cross-examine upon that matter.

About the Author

Adv. Sunil Sharma is a writer for about 25 years and has authored about 40 books on various legal topics including Jurisprudence, Hindu Law and Environmental Laws.

1)
1992 SGHC 16
2)
1970 397 US 254, 269-270
3)
AIR 1936 PC 60
4) , 8)
AIR 2003 Karnataka 293
5)
Sarkar on Evidence
6)
Principles and Digest of the Law of Evidence by M. Monir
7)
Phipson on Evidence
9)
AIR 1999 SC 2161
10) , 11)
AIR 1999 SC 3544
12)
AIR 1941 All 612
13)
2011 Cr LJ 3571


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Created on 2021/01/14 06:56 by LawPage • Last modified on 2021/01/14 06:56 by LawPage