Art Of Cross-examination : Basic Canons

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: 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. 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,...

Art Of Cross-examination : Basic Canons

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