Art of Cross-Examination Abhishek BASICS OF LAW Sat, Nov 16, 2019, at ,11:28 AM Introduction “The exercise of this right [cross-examination] is justly regarded as one of the most efficacious tests which the law has devised for the discovery of truth. By means of it, the situation of the witness with respect to the parties and to the subject of litigation, his interest his motives, his inclination and prejudices, his character, his means of obtaining a correct and certain knowledge of the fact to which he bears testimony, the manner in which he has used those means, his power of discernment, memory, and description, are all fully investigated, ascertained, and submitted to the consideration of the jury, who have an opportunity of observing his demeanour, and of determining the just value of his testimony. It is not easy for a witness, subjected to this test, to impose on a Court or jury, for however artful the fabrication of falsehood may be, it cannot embrace all the circumstances to which cross-examination may be extended.” (TAYLOR, 12th Edition. P. 910) In India where large number of complaints and cases are filed in civil and criminal courts every day, delay in justice is common as pendency of cases in courts are also growing rapidly. Examination of witnesses plays an important role in the presentation of the evidence in a court of law irrespective of civil or criminal case and admissibility of evidence is also an important aspect which has to be decided by the judges only. Due to which each case will be looked upon clearly and it will take long time to pass the judgment by the court. The examination of witnesses can be classified into three types as defined under ‘Sec: 137’ of ‘Indian Evidence Act, 1872’ as follows:- Examination-in-chief means the examination of witness by the party who calls him shall be called his examination-in-chief. Cross-Examination means the examination of witness by the adverse party shall be called his cross-examination. Re-Examination means the examination of a witness, subsequent to the cross-examination by the party who called him, shall be called his re-examination. The art of Cross-Examination plays an important role in the trial of each case which involves hard work and talent of lawyers while providing justice to their clients. A perfect lawyer should learn the art of Cross-Examination not by reading newspapers but the successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally. The trial lawyer must learn as well to adapt to particular witnesses and different cases. The right of Cross-Examination is one of the most powerful instrumentalities provided lawyers in the conduct of litigation. One of the most important purposes of Cross-Examination is to attempt to destroy the testimony or the credibility of the opponent’s witnesses. Justice is not served if a witness is unable to communicate credibility to a jury. The search for truth is the ultimate and idealistic end of all litigated matter in a court trial. In the course of cross-examination, a witness may be asked following questions— To test his veracity; To discover who he is and what is his position in life; To shake his credit by injuring his character, although his answer might criminate him to penalty or forfeiture. (Section 146, IEA, 1872) The cross-examination is treading on safe ground so far as (1) and (2) are concerned. As regards (3), complex set of consideration present themselves. If the questions refer to a relevant matter the provision of Section 132 are applicable (S. 147, IEA, 1872). If, however, the questions refer to an irrelevant matter, they are proper— If the truth or imputation conveyed by them would seriously affect the opinion of the Court as the credibility of the witness. Following cross-examination are improper— If the imputation conveyed by them relates to matters so remote in time or of such a character that they would not affect the credibility of the witness; If there is a great disproportion between the importance of the imputation made against the witness’s character and the importance of his evidence. (Section 148, IEA, 1872) Before such questions are asked, the person putting them must have reasonable grounds for thinking that the imputations was well-founded (section 149, IEA, 1872). If any lawyers asks such questions without reasonable grounds, the court may report the case to the High Court or other authority to which he is subject (Section 148 IEA, 1872) The main object of Cross-Examination is to find out the truth and detection of falsehood in human testimony. It is designed either to destroy or weaken the force of evidence which is already given by a witness. Cross-Examination of witness is a duty of every lawyer towards his client and not a matter of glory and fame. It is the most efficacious test to discover the truth and to detect the false statements of the witness. It should be remembered that the Justice should not be defeated by the improper Cross-Examination. One of the purposes of Cross-Examination is to asking questions regarding what the witness has stated in the Examination-in-chief and the answer is the reply by the witness to the question put by the advocate. Often, however, one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination. Before initiating a Cross-Examination of any witness, the lawyer should clearly bear in mind those points he or she wishes to make with that witness. And then, he or she should write them down. These points also should be discussed with those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give chance to every party to Cross-Examine the other party’s witness. A lawyer should use leading questions i.e. “is that correct?” and “isn’t it a fact” etc. at the time of Cross-Examining of the witness because asking only leading questions is perhaps the oldest rule of Cross-Examination. It is an old rule because it is a good one. Leading questions are most effective because they essentially allow the Cross-Examiner to testify and the witness to ratify. The technique advances one of the important dynamics of the courtroom is control. Asking leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable and informative. Good thing come from leading questions. Usually be aware that leading questions also can grow tiresome. No one likes to hear a hundred questions in a row that end with, “is that correct?” and all the questions put during the trial of Cross-examination must be lawful as permitted under ‘Sec: 146’ of ‘Indian Evidence Act, 1872’. Questions asked during the Cross-Examination must be relevant to the issue related in the facts of the case and indecent & scandalous questions can also be asked by the advocate at the time of Cross-Examination unless they relate to the fact in issue. Most importantly questions intended to insult or annoy should be forbidden by the court though questions seems to be proper. The court who has authoritative power to decide the case can recall the witness for the Cross-Examination based on the facts and circumstances of the particular case and a summary procedure does not take away the rights of the parties to Cross-Examine whereas every party has to be given fair deal in the matter of Cross-Examination. There are certain important points which can be considered as chief heads of the Cross-Examination as follows:- 1. To cause the witness to alter or amend his evidence by questioning about his testimony. 2. To modify the evidence given under the Examination-in-chief, by causing the witness to speak to supplementary facts to show the reasons and circumstances. 3. To discredit the evidence of witness by putting questions connected with his character. 4. From reasons arising out of his evidence by causing him to give further evidence. 5. To cause him to give evidence to be received as true. THE MANNER OF CROSS-EXAMINATION It needs but the simple statement of the nature of cross examination to demonstrate its indispensable character in all trials of questions of fact. No cause reaches the stage of litigation unless there are two sides to it. If the witnesses on one side deny or qualify the statements made by those on the other, which side is telling the truth? Not necessarily which side is offering perjured testimony, there is far less intentional perjury in the courts than the inexperienced would believe, but which side is honestly mistaken? for, on the other hand, evidence itself is far less trustworthy than the public usually realizes. The opinions of which side are warped by prejudice or blinded by ignorance? Which side has had the power or opportunity of correct observation? How shall we tell, how make it apparent to a jury of disinterested men who are to decide between the litigants? Obviously, by the means of cross-examination. 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. But as yet no substitute has ever been found for cross-examination as a means of separating truth from falsehood, and of reducing exaggerated statements to their true dimensions. CROSS-EXAMINATION OF THE PERJURED WITNESS “What can be conceived more difficult in advocacy than the task of proving a witness, whom you may neither have seen nor heard of before he gives his testimony against you, to be a wilful perjurer, as it were out of his own mouth?” Witnesses of a low grade of intelligence, when they testify falsely, usually display it in various ways: in the voice, in a certain vacant expression of the eyes, in a nervous twisting about in the witness chair, in an apparent effort to recall to mind the exact wording of their story, and especially in the use of language not suited to their station in life. On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language. If, however, the manner of the witness and the wording of his testimony bear all the earmarks of fabrication, it is often useful, as your first question, to ask him to repeat his story. Usually he will repeat it in almost identically the same words as before, showing he has learned it by heart. Of course it is possible, though not probable, that he has done this and still is telling the truth. Try him by taking him to the middle of his story, and from there jump him quickly to the beginning and then to the end of it. If he is speaking by rote rather than from recollection, he will be sure to succumb to this method. He has no facts with which to associate the wording of his story; he can only call it to mind as a whole, and not in detachments. Draw his attention to other facts entirely disassociated with the main story as told by himself. He will be entirely unprepared for these new inquiries, and will draw upon his imagination for answers. Distract his thoughts again to some new part of his main story and then suddenly, when his mind is upon another subject, return to those considerations to which you had first called his attention, and ask him the same questions a second time. He will again fall back upon his imagination and very likely will give a different answer from the first and you have him in the net. He cannot invent answers as fast as you can invent questions, and at the same time remember his previous inventions correctly; he will not keep his answers all consistent with one another. He will soon become confused and, from that time on, will be at your mercy. Let him go as soon as you have made it apparent that he is not mistaken, but lying. An amusing account is given in the Green Bag for November, 1891, of one of Jeremiah Mason’s cross-examinations of such a witness. “The witness had previously testified to having heard Mason’s client make a certain statement, and it was upon the evidence of that statement that the adversary’s case was based. Mr. Mason led the witness round to his statement, and again it was repeated verbatim. Then, without warning, he walked to the stand, and pointing straight at the witness said, in his high, impassioned voice, ‘Let’s see that paper you’ve got in your waistcoat pocket! ‘Taken completely by surprise, the witness mechanically drew a paper from the pocket indicated, and handed it to Mr. Mason. The lawyer slowly read the exact words of the witness in regard to the statement, and called attention to the fact that they were in the handwriting of the lawyer on the other side. Case Study: 1. Hari Narayan singh v/s State of West Bengal (2009 CriLJ 4001 [cal.]) (Ratio-Impeaching the credit of a Witness by Cross-Examining) According to this case court observed that it is not necessary that all the persons who happen to be there should be brought as witnesses. One witness out of several is good enough, if his testimony legally acceptable and believable. 2. Bhagwan Singh v/s State of Bihar (AIR 1976 SC 202) (Ratio-Cross-Examination of Hostile Witness) In this case Supreme Court observed “where the court gives permission to the prosecutor to Cross-Examine his own witness thus characterizing him as, hostile witness, that fact does not completely effaces his evidence. The evidence remains admissible in the trial and there is no legal bar to base a conviction upon his testimony if corroborated by other reliable evidence.