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Art Of Cross-examination : Basic Canons

Pareekshit Bishnoi
6 May 2020 3:32 AM GMT
Art Of Cross-examination : Basic Canons
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Introduction:

The law of evidence is a system of rules for ascertaining controverted questions of fact in a judicial investigation of the dispute before the Court.

In India, the Indian Evidence Act, 1872 ("Indian Evidence Act") is the principal legislation indicating, what is evidence, what are the types of evidence, what are the facts on which evidence are to be led and what are the facts on which evidence need not be led, who has the burden to lead the evidence, and last, as pertinent for the present discussion, how is the veracity of evidence led and claims made by the parties or witnesses thereof, are to be proved.

Modes to test the veracity of witnesses:

There are several ways in which the veracity of the averred and collected facts can be proved to varying degrees. For example, a statements on oath, attaches a degree of authenticity to the statements of a witness of the parties. Similarly, for the limited purposes, the brain-mapping test and Narco-analysis test assist in determining the veracity of the statements of witnesses. However, among them, the cross-examination is the principal and perennial mode, to equate the veracity of the averments of a witness in all types of disputes.

Cross-examination – Purpose and its foundational subject-matter:

Under the Indian Evidence Act, section 137, provides for the cross-examination. Professor Wigmore had once remarked the cross-examination as "the greatest legal engine ever invented for the discovery of truth". It is a "powerful searchlight to draw out the truth and further the cause of justice. Its object inter alia is to impeach the very credit of the concerned witness and shake his entire testimony" by "piercing through the evidence (see para. 9 & 10) given by the witness, who has been examined in examination-in-chief". Thus, it is essential to briefly appreciate its cardinal principles.

However, at the outset, it is also pertinent to discuss the material on which generally the cross-examination of the witnesses is based. Primarily, statements made by a witness in their Evidence by way of Affidavit or in examination-in-chief, along with exhibited documents, are the basis for every cross-examination, in all types of cases, i.e. criminal or civil. In criminal matters, such documents are generally encompassed in the Charge-sheet and the supplementary report, if any. It includes Arrest Memo, Seizure Memo, First Information Report, Inquest Report, Post-mortem Report, Site plans, statements under made under section 161 and 162 of the CrPC, 1973 by such witnesses during the investigation.

Similarly, in the civil disputes, the contracts entered by the parties, the record of ownership i.e. Jamabandi, the record of possession, i.e. Khasra Khatoni, the site plan of the land, communication between the parties, bills, receipts, and alike documents varyingly form the subject-matter of the cross-examination. Where one of the party is a legal entity, the documents like, LLP Deed, Memorandum of Association, Articles of Association, Board Resolutions, Meetings minutes, Balance sheets, and documents and communications, are often the subject of study before the Courts.

Canons of Cross-examination:

With this background, we may now proceed to discuss several cardinal principles, often to be remembered, while preparing for the cross-examination and at the time of cross-examination of a witness, in today's gait of the litigation in the Indian Courts. It must be remembered that such principles are always non-exhaustive and often molded as per the facts and circumstances of the case, the nature of the witness, the nature of the judicial officer supervising the trial, and also the nature of opposing counsel. Some of these basic tenets may be drawn as follows:

  1. Know the law: It is indisputable to state that good understanding of the substantive laws, the procedural laws, and the adjective laws is always quint-essential for effective cross-examination by any lawyer. This is because the questions of cross-examination are generally based on relevant facts, pertinent to the case in hand, essential elements of an offence or transaction, and the procedure governing such offence or transaction.

For example, it is pertinent to know the essential elements for commission and recusal from an offence like theft, murder, unlawful assembly, etc. Equally, it is important to have a bird's eye view of the essential procedural perquisites like what documents require registration, what documents require stamping, what documents need to be filed in original, when can a party file their certified copies.

  1. Know the facts: A dossier of the case must be thoroughly read and as far as possible, read in chronological order along with the annexures/exhibits/reports attached. A conjoint reading of the pleadings or evidential-affidavits and the documents or evidence attached is always recommended, instead of, reading the documents dis-jointly. In the exercise, mark out the deficiencies and contradictions found in the documents or statements, as the case may be.

It would be apt to cite an instance from the cross-examination of Richard Pigott by Sir Charles Russel before the Parnell Commission. At the very beginning of the cross-examination, Sir Charles Russel asked the witness to write some words like the name of the witness, "likelihood", and "proselytism" on a clean sheet of paper. At last, carelessly, he again asked to write another word "hesitancy". Now Sir Charles had an incriminating letter, written by the witness, wherein, the witness had spelt the word "hesitancy" as "hesitency". Interestingly, the witness on the given paper again spelt the word as "hesitency". Little did anyone realize when asked, but this had a decisive advantage to Sir Charles later in the trial.

  1. Sync the laws and facts: Identify the relevant statutory provision(s) and the facts of the dispute before framing a questionnaire for cross-examination. Read the provisions and mark out the essential elements categorically, despite having read the provisions on an earlier occasion(s). This assists an examining lawyer to prepare the questionnaire which syncs the statutory essentials with the relevant facts of the case in hand.
  2. Prior research on documents: Once the above-suggested exercise is done, the examining lawyer must examine whether the document(s)/evidence which have not been produced by the witness are publically accessible i.e. public documents. If yes, the lawyer must procure such document/evidence and check whether the information or facts mentioned therein support the cause of the party, he is representing. If yes, the witness may be examined in terms of the following example viz.

A witness has in his examination-in-chief stated that the advance for purchase of a particular property was issued by his wife from the accounts of the company. She was director of the company while issuing funds for the purchase.

Question: In your examination-in-chief, at page ____, you state that your wife was the director of the Company at the relevant point of time. Is that correct?

Answer: Yes.

Question: Whether you have placed any evidence on record before the Court to show that your wife was director of the company at the relevant time?

Answer: No.

Now, this fact can be easily verified from the website of the Ministry of Corporate Affairs through the Company Identification Number of the Company. If the availed record of the company shows such a person as a director of the company, no more question should be put on this point. If the record does not show his wife as director, the witness may be further questioned as follows:

Question: Whether he can produce the document showing him being a director of the company?

Answer: Yes/No.

The examining lawyer can always produce such a document in the Court as evidence to discredit this statement. However, the last question is not recommended when the document affirmatively proves the statement of a witness. The question if asked will merely remove the deficiencies in the witness's testimony. Instead, the examiner must leave with an indication of deficiency and not complete the file of the opposite party. The witness should be asked to produce the documents only for those facts which you are aware, either do not exist as stated, or, if exist, support your case or at least raise a doubt to the witness's testimony, or, such a document is necessitated for further examination and it is not available to the public.

  1. Whom not to call: It is recommended not to call a person as a witness, to whom, the opposite party is bound or will call as a witness. This will give such an examiner an opportunity to cross-examine such a witness.
  2. Not the number: It must always be first appreciated whether a witness to be cross-examined, even avers anything against your client. It must be remembered that it is not the number of the witnesses produced or the number of witnesses cross-examined which determine the result of a trial. Every witness need not be compulsorily crossed.
  3. Never assume facts or make the witness introduce disadvantageous facts: It is a pertinent principle for an examining lawyer to not assume the existence of a fact unless such a fact by the witness in his examination-in-chief or evidence by way of affidavit has been averred so and it is not of very trifle nature. Additionally, the witness should not be questioned on a fact which the witness missed or did not state in his examination-in-chief, and its non-statement was advantageous to your party. For example, in a case of murder by firing by a pistol, a witness of the recovery does not state the weapon recovered and/or does not indicate the use of a particular type of weapon.
  4. Not a memory test: It must always be remembered that cross-examination is not a memory test. The figures must not be questioned on, unless, they are essential to the facts in issue.

For example, it would generally be redundant to question the witness on the amount advanced as security in an agreement or contract of sale, profit or loss, the value of the assets, the amount of liability of a company, etc. unless the records present before the court are disputed.

  1. Project by formidable inferences: The contractions or the inconsistency in the testimony of a witness must often be shown by a chain of questions and formidable inference from the answers to those questions. Generally, a direct question should not be asked. This is because the witnesses are always dread of direct self-contradiction.

For example, a witness to an incidence of murder may be asked - What is his profession/occupation? Where were you on ___(a particular date) ____? Why was he at this place on this day? Was he not in his office? What was the time of the day when he was at the place of incidence? When a party gets a favorable answer in any of the said questions, which strongly infers that he was not present at the place of incidence on that date, he should not be asked by a question like he was present at the place of incidence, were you? This is because a direct question will often be met with a direct answer and will limit the scope of inquiry. However, a direct question may put when you have sufficient evidence to discredit the testimony of the witness [Read with point 16 & 17].

  1. Don't triumph over trifles: An examining lawyer though must point but should never triumph over small wins or trifle contradictions. The recommendation equally applies while pointing out several procedural glitches which are easily curable in nature.
  2. Switch after a favorable answer: In a situation where you receive a favorable answer, it is always recommended to quickly pass on other queries. Don't ever ask the same question again to show the triumph. It often happens that an inexperienced lawyer repeats the question and the witness molds his answer in the second time taking away the real effect of the favorable answer.

For example, when a witness state that he was at a particular place on a particular date which is a date of the incident, it is imprudent to question that, whether on this date of incidence you were at the place of incidence. He may often state that he was back by that time or correct his former statement.

  1. Expert witness: On occasions where the witness is called as an expert witness, prior research on the subject and the writings of the witness, if any, is a must. Additionally, the questions like whether what he states is a mere opinion or a scientific fact, are there any other possibilities for a cause, what is the source for his conclusion, what was the number of samples he examined, what does he specialize in (i.e. cardiologist doctor), how long has he practiced as a cardiologist, and the alike question may be asked.
  2. No open question: It is often recommended to not ask a question to an expert which is wide enough for him to travel in the realm of his specialty of which the examining lawyer often have little knowledge.
  3. Perjured witness: On the occasion where the witness subject to cross-examination is a prepared witness or perjured witness, the sequence of questioning becomes essential. Make such witness repeat his statement, flip him to end, middle, and alike. It is pertinent to note the movement of his eyes, hands, the pitch of voice, the words used, and expression made. It would be apposite to quote an interesting episode from The Art of Cross-examination by Francis Wellman as follows:

"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.

"'Mr. Mason, how under the sun did you know that paper was there?' asked a brother lawyer. 'Well,' replied Mr. Mason, 'I thought he gave that part of his testimony just as if he'd heard it, and I noticed every time he repeated it he put his hand to his waistcoat pocket, and then let it fall again when he got through'" [page 17].

  1. Rapid questions: If the opposite party has a strong case or prepared witnesses, select the weakest point and put the questions rapidly at the same pitch of voice. This often derives the opportunity of the witness to imagine and manufacture the answer within such time. Such witness may be confronted with leading questions. Such questions often help in breaking the pre-arranged version of the party and calls for a spontaneous narrative.
  2. The sequence of examination: The sequence of cross-examination often plays a critical role in the success of cross-examination and there is no one opinion of same and it varies with the nature of the fact, witness, and case. For example, whether such witness is afraid, honest, well-versed, short-tempered etc.? Often, it is recommended to lay a foundation before an important question is asked. However, a time a direct question may dismantle the witness at once.
  3. Discrediting the testimony: Discrediting the testimony and discrediting a witness are two different things. It goes without saying that to discredit a witness it is essential to research the background of the witness. However, a question as to the character of the witness must not be too remote. A remote throwing of mud often arouses unconscious sympathy for the witness, particularly, when the witness is women or any particular category of community which has been subjected to injustices in past.

Additionally, it is important to decide when should a contrary piece of evidence i.e. any letter, mail, etc. be introduced before the Court to discredit the testimony of the witness. There are varying views on it. Several lawyers introduce it at the beginning, read the statement to witness in parts, and then question on different occasions which statement is true? On the other hand, some lawyers prefer to first question on former statements and then introduce the evidence to discredit the testimony of such witness. This is basically, make the witness lie more to impeach his creditworthiness by the introduction of strong contrary evidence. If this approach is followed, the contrary evidence should be duly concealed to avert an opportunity to such witness to make improvements in his testimony before the introduction of the discrediting evidence [Read with 16].

  1. Don't merely hope favorable answer: It is often recommended to not ask a question with a mere hope of getting the answer. David Graham, a successful cross-examiner, once said, "a lawyer should never ask a witness on cross-examination a question unless in the first place he knew what the answer would be, or in the second place he didn't care".
  2. Maintenance of eye contact: It is essential for the cross-examiner to maintain eye contact with the witness, all through the cross-examination. The movement of the hands, eyes, the pitch of the voice, all speak. For example, a prepared witness often looks at his counsel before answering any question, once his sequence of the story is broken [Read with Point 14].
  3. Clarity and calmness: The examining lawyer must always maintain clarity, self-control, and his dignity. A lawyer must avoid equivocal questions as they lead to equivocal answers. The examining lawyer must never show disappointment, even if, he receives an unfavorable answer from the witness. Instead, he may occasionally show as if this was the answer he wanted to hear. Additionally, it is the golden rule of cross-examination that "hold your temper while you lead the witness to lose his".
  4. Respectful and submissive words: The lawyer should always be respectful to the court and the opposing counsel. Never form conclusions and show triumph before-hand. The examiner may use the words like "It will be for the Court to consider" or "it may be worth thinking my lord" while addressing the Court.
  5. Don't object unless cannot be sustained: While your witnesses are being examined by the opposite counsel, do not object for the mere sake of objection. Make only genuine objections which can sustain. This unconsciously develops an image of your knowledge and demeanor in the mind of the judge and acts as a bonus point.
  6. Never be casual: Never overlook a fact or piece of evidence. It must be remembered that non-examination of a document or statement amounts to an admission of such a fact or the document [Read with Point 7].
  7. Never judge your case: Never believe your case to be very strong or very weak while preparing or conducting a cross-examination. It is again apposite to quote from the Art of Cross-examination, wherein the author, Francis Wellman observes as follows:

"Knowledge is only the impression of one's mind and not the fact itself, which may present itself to many minds in many different aspects. The unconscious sense impressions sight, sound, or touch would be the same to every human mind; but once you awaken the mind to consciousness, then the original impression takes on all the color of motive, past experience, and character of the individual mind that receives it. The sensation by itself will be always the same. The variance arises when the sensation is interpreted by the individual and becomes a perception of his own mind. When a man on a hot day looks at a running stream and sees the delicious coolness, he is really adding something of himself, which he acquired by his past experience to the sense impression which his eye gives him" [page. 43].

Thus, the variance arises due in impression arise due to past experiences of a witness, attention he had paid to an incident, degree of readiness to look at the impression in a required way, the relation of the witness with the party and sense to make the side for which he appears win. Often the party's state varied versions on different occasions due to lapse of time. Such a witness often states based on recollection which is often molded due to above-said factors. The witness must be examined on these factors.

  1. The basic w's: Last, every witness called for cross-examination should be examined on contours of who, how, when, what, why, where. The best example of the use of these words can be easily noticed the successful cross-examination of Charles J. Guiteau by Mr. John K. Porter where the witness was examined whether he was insane at the time of the commission of assassin of President Garfield. The accused-witness averred it as a command of God. The witness was examined like who asked you to commit the act, did he ask you to kill, how did he ask, did God ask you to buy a pistol, and likewise.

CONCLUSION:

It has been often said that the lawyer is an actor at the time of cross-examination. However, today this central role of the cross-examiner appears to wade due to the huge pendency of litigation in the Indian Courts and the era of litigation having majorly been shifted to summary proceedings under special legislations. Often it is seen that the Courts carry their work in a regular way due to heavy pendency of cases, leaving the cross-examination being done under the supervision of the opposing counsel and the Court master, with fractional interventions of the Court when needed. Thus, the demeanor of the witnesses, of the opposite counsel, and lastly, the arguing counsel often go unnoticed. Given this, the decisions are often thus, solely based on the questions put and answers made, as noted on the sheet of papers.

(The author is an Advocate practising at the Supreme Court, Delhi High Court and other Courts at Delhi. He may be reached at [email protected])

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