The art of cross-examination is unquestionably a skill that every lawyer should learn. It is far more than simply asking witnesses a series of questions; it is an art form that takes years to develop and perfect. In this article, I attempt to demystify cross-examination and present some recommendations for good cross-examination. An examination is merely the process of asking a witness pertinent question about the matter at hand. A witness can be examined in three ways: in chief, cross-examined, and re-examined. The Indian Evidence Act of 1872 governs witness examination in civil and criminal trials. In civil cases, the plaintiff has the right to initiate proceedings (O.XVIII, R.3), whereas in criminal cases, the prosecutor or complainant initiates proceedings. Section 137 defines chief-examination as the examination of a witness by the party summoning him and cross-examination as the examination of a witness by the opposing side. Cross-examination is the most powerful instrument in the law for eliciting the truth. Cross-examination is required to provide credibility to a witness' testimony. Evidence supplied by a witness is only admissible if the opposing party tests the witness's truthfulness through cross-examination.
The key points concerning cross-examination:
- The opposing party has the right to an equal opportunity to cross-examine.
- The opportunity to cross-examine is exclusively available to the opposing side. S.154 allows the party calling a witness to cross-examine the witness if he becomes hostile. Only when a co-interest defendant's is detrimental to the defendant's is he subject to cross-examination.
- It is not permissible to conduct cross-examination without first conducting chief examination. S.138
- If police evidence obtained during a witness' interrogation is averse to the accused, cross-examination without examination in chief is permitted.
- The absence of counsel on the scheduled date does not preclude the party from recalling the witness for cross-examination.
- Failure to call a witness for cross-examination following an examination in chief undermines the credibility of his testimony.
- If a witness becomes confused during cross-examination, the court has the authority to interrogate him.
- Cross-examination is done orally.
- After cross-examination, a fact is undisputed if the opposing side fails to contest any statement of fact made by a witness during the examination in chief.
- If the opposing side waives the right to cross-examine, they cannot complain about it.
- Cross-examination must be limited to the pertinent facts.
- The opposing party is free to ask questions other than those introduced in the main examination, S.138
- It is not permitted to cross-examine witnesses who produce papers. S.139
- It is acceptable to cross-examine a witness on past comments made in writing or reduced to writing, as well as on relevant matters. S.145
- The witness is not excused from answering any pertinent questions. S.147
- The party should avoid all indecent inquiries during cross-examination.
- If a witness becomes hostile, the party summoning him may question him.
- Irrelevant questions are permitted if the allegation severely undermines the witness's credibility.
Aim of cross examination
The purpose of cross-examination is to call into question the accuracy, credibility, and value of the evidence stated by the witness during the chief examination. It also allows the cross-examining party to go through the witness's material facts to identify and reveal any discrepancies, as well as to reveal any hidden information and facts that may improve the case.
The purpose of cross-examination varies depending on the type of witness, and they are as follows:
- Attempt to cross-examine a fact witness (not an expert)
- Obtaining favourable facts and information in order to contest the credibility and correctness of the testimony
- Contesting the witness's credibility
- Using the witness to: Support one of your witnesses' claims
- Bringing into question the credibility of the other party's witness
- Present your story before the court.
- Attempt to cross-examine an expert witness. In addition to the aforementioned
- Changing one's mind in order to lessen the impact
- To establish your expert's credibility.
- To limit the scope and necessity of the expert witness.
- To identify the portion of his testimony that exceeds his competence.
- To distinguish between inspected and unexamined papers.
Types of cross examination
Cross-examination can be classified into two sorts. You would employ constructive cross-examination to strengthen your client's case theory and deconstructive cross-examination to undermine a witness' reliability. Each requires a unique strategy.
When you cross-examine a witness constructively, you are aiming to elicit useful testimony from an opposition witness. Cross-examination should feel more like a dialogue than an attack. When you establish a useful fact through constructive cross-examination, the jury is more likely to give it weight in its deliberations because it came from an opposing witness rather than one of your own. You should use constructive cross-examination to confirm a fact relevant to your client's case.
When you cross-examine a witness reconstructively, you are seeking to control an adverse witness and undermine their credibility. This is the kind of cross-examination juries are accustomed to seeing in films and on television. That means they'll expect you to start strong and finish strong by consistently challenging and boxing in the witness (using the above structure for questions). If you don't, you risk losing credibility. Deconstructive cross-examinations work best when they call into question facts central to your opponent's case theory.
We can see that cross-examination covers a large scope. Continuous training and practise are the only ways to master the skill of cross-examination. With cross-examinations, the stakes are enormous. Your ability to extract testimony from witnesses can make or break your client's case. However, with the proper preparation, strategy, and execution, you may conduct excellent cross-examinations that help your clients' claims.