Effective cross-examination begins with the understanding that not every witness testifying for the opposition is automatically committing perjury. There are many witnesses who believe their testimony to be the true and who testify with honesty and sincerity, which is impressive and persuasive to the jury. This can be very frustrating to counsel, armed with vast knowledge of the case, who believes that the witness is not testifying truthfully. However, it is essential in preparing to cross-examine such a witness to understand why the witness is testifying in this manner.
The witness is testifying from personal knowledge of the facts. However, knowledge is the impression in the witness’s mind and not the fact itself. You must understand that the witness is testifying from data acquired from two distinct sources:
It is for these reasons that two persons can witness the same event, experience the same sensory perceptions, testify completely differently regarding the events, and both feel that they are telling the truth.
The appreciation of the evidence of eyewitness depends upon:
When the cross-examiner embarks on cross-examination of an eyewitness, it should be with purpose and aiming clear direction. If the cross-examiner has prepared his case, he has many tools with which to cross-examine effectively. He may have the description given to the police by the identification witness immediately after the crime occurred. If such description was recorded by the police and sent out over the police teletype or other means of communication, defence counsel can subpoena it.2)
It is important to ask an eyewitness, if he gave a description of the person he accused and, if so, whether he pointed out certain obvious characteristics of the defendant. If the defendant has a pronounced nose, moustache, or any other outstanding characteristic that the witness failed to give in his original description, such facts should be revealed in order to diminish the value of the identification. Similarly, the manner of dress of the person accused in the original description is extremely important.
Hon’ble Supreme Court in the case of Bhogin Bhat Kirji vs State of Gujarat3) has laid down certain presumptions regarding witness:
Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.