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Cross-examination of eyewitness

Effective cross-examination begins with the understanding that not every witness testifying for the opposition is automatically committing perjury.Cross-examination 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:

  1. the witness’s sensory perceptions of sight, sound, touch, smell, and taste; and
  2. the witness’s conscious impressions based on personal experiences, bias, financial considerations, pride, motivation, loyalty, and personal character.

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.

Appreciation of the evidence of eyewitness

The appreciation of the evidence of eyewitness depends upon:

  1. The accuracy of the witness’s original observation of the events which he described; and
  2. The correctness and extent of that he remembers and his veracity. 1)

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)

Asking questions on special features

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.

Presumptions regarding witness

Hon’ble Supreme Court in the case of Bhogin Bhat Kirji vs State of Gujarat3) has laid down certain presumptions regarding witness:

  1. A witness cannot be expected to possess a photographic memory to recall the details of an incident. It is not as if a videotape is replayed on the mental screen.
  2. Ordinary, a witness is overtaken by events. The witness may not have anticipated the occurrence. Therefore, mental faculties cannot be expected to be attuned to absorb all the possible details.
  3. The powers of observation differ from person to person. What one person may notice, another may not. An object or movement might imprint its image on one person’s mind whereas it might go unnoticed by the other person.
  4. People cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape-recorder.
  5. Concerning exact time of an incident, or the time duration of an occurrence, people usually make their estimates by guesswork on the spur of moment at the time of interrogation. One cannot expect people to make very precise or reliable estimates in such matters.
  6. Ordinary, a witness cannot be expected to recall accurately the sequence of events, which take place in rapid succession or in a very short span of time. A witness is liable to be confused when interrogated later on.

About the Author

author Sunil Sharma is an advocate; editor and compiler of legal commentaries, having authored more than 40 books.

Sir John Woodroffe and Syed Amir Ali
See: Bowman Dairy Co. vs United States, 341 US 214 (1951)
1983 Cri LJ 1096 SC

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