Cross-examination can make or destroy a case. It is the keystone to a successful trial. Because of the dramatic possibilities inherent in cross-examination, it has become the favourite courtroom device to be exploited by the cinema and television. But what actually the cross-examination is. In this article we can learn about Cross-Examination, Principles of Cross-Examination and what are its types.
The examination of witness by the adverse party shall be called his Cross-Examination. In law, cross-examination is the interrogation of a witness called by one’s opponent. The purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case. Every party has a right to cross-examine a witness produced by his antagonist, in order to test whether the witness has the knowledge of the things he testifies and if, is found that the witness had the means and ability to ascertain the facts about which he testifies, then his memory, his motives, everything may be scrutinized by the cross-examination.
In cross-examination a great latitude is allowed in the mode of putting questions, and the counsel may put leading questions. The object of cross-examination is to check the credibility of the witness. It is one of the principle tests which the law has devised for the ascertainment of the truth, and it is certainly one of the most efficacious. By this means the situation of the witness, with respect to the parties and the subject of litigation, his interest, his motives, his inclinations and his prejudice, his means of obtaining a correct and certain knowledge of the facts to which he testifies the manner in which he has used those means, his powers of discerning the facts in the first instance, and of his capacity in retaining and describing them, are fully investigated and ascertained.
2. Examination of Witness
Under Section 135 of Indian Evidence Act, gives the power to the court to command or order in which the witness may be produced.
Examination of a witness is asking the witness questions regarding relevant facts in the case and recording the statements of witness as evidence.
There are three parts to the examination of witness and Section 138 of the Indian Evidence Act states that the witness must be examined in the following order:-
3. Principles of Cross-Examination
Scriptural basis for cross-examination:-
The method of eliciting truth by the method of cross-examination is as old as human nature. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties the exercise of ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort: it is the direct conflict of mind with mind; it demands not merely much knowledge of the human mind, its faculties and their modus operandi to be learned only by reading, reflection and observation but much experience of a man and his motives derived from intercourse with various classes and many persons and above all by that practical experience in the art of dealing with witnesses which is worth more than all other knowledge, which will materially assist but without which no amount of study will suffice to accomplish an advocate.
Rules for the conduct of cross-examination:-
These principles are well understood by barristers who have attained any degree of proficiency in the art, and can best be explained as follows:
To cross-examine is to test in a court of law the evidence of an opposing witness.
This is done by means of questions and in accordance with the following working rules:
– “Come to the point as soon as possible”
– “Do not argue with a witness”
– “Do not ask question unless there is a good reason for it”
– “Except in cases where your position is so bad that nothing can injure it, and something may improve it, do not splash about and do not ask a question without being fairly certain that the answer will be favourable to you”
– “If a witness is manifestly lying, leave him entirely alone. Keep calm”
Object of cross-examination:-
The object of cross-examination is to get something, no matter how small to help your own case. When you cannot get that which helps your client, try to get something to weaken ‘your opponent’, but that is got by a different process entirely. To separate the truth from falsehood, more particularly if the truth told by your opposing witness would be of assistant to your case.
4. Who can Cross-Examine?
The party, who has a right to take part in any enquiry or trial, can cross-examine the witness or witnesses.
In B.S. Balaji vs. T. Govindaraju, 1966 AIHC 2484 it was said, where one of the Managing Directors of a firm and had borrowed money on behalf of the firm in that capacity without the consent of the other Managing Director, the later, being an adverse party, had the right to cross-examine the former.
5. Range of Cross-Examination
The range of cross-examination is unlimited, the only circumscribing limits being that it must ‘relate to relevant facts’.
By Section 146 to 150 of Indian Evidence Act, the legislature has tried to give very wide powers to the cross-examination to help him in finding out the truth in oral depositions laid out before the court.
In the course of cross-examination, a witness may be asked questions:
(i) To test his veracity;
(ii) To discover who he is and what his position in life is;
(iii) To shake his credit by injuring his character, although his answer might criminate him or expose him to penalty or forfeiture.
6. Omission to Cross-examine
It is a well-established rule of evidence that a party should put to each of his opponents witnesses so much of his case as concerns that particular witness; if no such questions are put, the courts presume that the witnesses account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that the witness may have an opportunity of giving an explanation.
When a party has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed. This not a technical rule of evidence. It is a rule of essential justice.
7. Cross-Examination of Witnesses of Co-accused or Co-defendants
Where two prisoners are tried together and one gives evidence affecting the other, the other prisoner has a right to cross-examine. Evidence of witnesses examined in defence on behalf of one accused and cross-examined on behalf of another accused is admissible as against the latter. It may be otherwise where that other accused had no opportunity by the Magistrate or the judge to explain the circumstance appearing in such evidence. Where the parties arrayed as defendants in a suit have taken contradictory stands on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross-examination against each other. Where evidence produced by a partner defendant was found admissible against other co-defendant partners, it was held that the co-defendants have a right of cross-examination of such defendant partner.
8. Cross-examination of Witness called by Court
If the witness called by the court gives against the complaint, he would have right to cross-examine such a witness.
9. No opportunity for cross-examine – Effect
From the fact that it was not recorded in the depositions of the witnesses that there was no cross-examination, it can be said that, in fact, there was no cross-examination or that the request of the party to cross-examine was disallowed.
If the pleaders do not turn up in court at the right moment to cross-examine the opposite party’s witnesses, it cannot be made a ground of attack against the orders passed as the court is not bound to wait for any length of time and waste public time waiting for the pleaders arrival.
When the accused was denied the opportunity to cross-examine the witness; the conviction based on the statement of the witness cannot be upheld; and such evidence must be excluded from consideration. Refusal of permission to cross-examine the prosecution witness is not proper and against all principles of justice.
10. Time for cross-examination – Power of court to limit
The Privy Council held that the judge has always discretion as to how far the cross-examination may go and how long it may continue; a fair and reasonable exercise of his discretion will not generally be questioned by an appellant court.
11. Delayed Cross-Examination
Delayed cross-examination does not affect the credibility of the witnesses when earlier version of such witnesses was found to be consistent with other evidence and conviction could be based on such evidence.
Section 138 of Evidence Act and Section 311 of Crpc
Provisions of Section 138 of the Evidence Act and Section 311 of the crpc are complementary and not conflicting with one another.
12. Hostile Witness
A witness who is antagonistic to the party calling them and, being unwilling to tell the truth, may have to be asked leading questions.
A hostile witness is also known as an adverse witness or an unfavourable witness. He is a witness at trial whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness.
The witness can be asked:-
– Leading questions under Section 143,
– Questions relating to his previous statements in writing under Section 145, and
– Questions which tend to test his veracity under Section 146.
13. Impeaching Credit of Witness
The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him:-
– Evidence of persons that the witness is unworthy of credit;
– Proof that the witness has been bribed, or has accept the offer of a bribe, or has received any other corrupt inducement;
– Former statements inconsistent with the present evidence;
– General immoral character of the prosecutrix in cases of rape or attempt to ravish.
14. Refreshing Memory
A witness may, while under examination, refers his memory by referring to any writing made by him at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at the fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if he read it he knew it to be correct.
When witness may use copy of documents to refresh memory- Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document;
Provided the court be satisfied that there is sufficient reason for the non-production of the original.
An expert may refresh his memory by reference to professional treaties.
15. Bullying Cross-Examination
Danger of crowding victories too close:-
Human nature is such that it responds instinctively to the fellow who is in misery and cannot help himself. Lawyers have learned that it doesn’t pay to crowd a victory too close as; else the jury may come to the rescue of the victim. It’s the cool headed, courteous examiner that elicits the information necessary to his cause.
Courts and juries appreciate delicacy of feeling upon the part of advocates, and where in cross-examination it becomes important to inquire into the past history of a witness, or to speak about the death of a near relative or dear friend, or to touch some chord of sorrow, it is wise to use introductory expressions deploring the necessity of asking such questions, and representing it as one of the unpleasant but imperative duties of counsel.
Bullying by the Bench:-
Some judges have reputations for behaviour which varies from stern to rude and offensive and which falls below the normal courtesy expected in any profession action.
Bullying judges are identified and dis cussed whenever lawyers get together. It’s been a hidden problem, however. Fear of consequences and an enduring impact on a courtroom career sit alongside the lack of any effective system for resolving situations of inappropriate behaviour from judge to counsel.
Bullying and insulting witnesses not now commended:-
Bullying and insulting witnesses is a practice which is now generally disdained. Yet sometimes, with a particular kind of witness, it is the only effective way of cross-examining.
16. Cross-Examination of Different types of Witness
A person who deliberately gives false testimony is false witness.
The truthful witness has been said to be the most difficult of all to cross-examine. He believes and intends his evidence to be true. He is the easiest to deal with, because he does not equivocate. He has no secret meaning and gives his answers readily and without mental serve.
A witness, who is antagonistic to the party calling them and being unwilling to tell the truth, may have to be asked leading questions.
A witness may be said to be biased when his relation to the cause or to the parties is such that he has an incentive to exaggerate or give false colour to his statements, or to suppress or prevent the truth, or to state what is false.
Bias is that which excites “a disposition to see and report matters as they are wished for rather, than as they are”.
Expert as Witness:-
Expert witness may be divided into two classes, the professional and non-professional.
A farmer called to testify as to the proper method of curing may be fairly considered as a type of the non-professional class, And a physician called to testify as to the mental condition of a party may be taken as professional class.
In civil and criminal cases, the judge has the power to summon witnesses as court witnesses and examine them. They can be cross-examined by both the parties as provided in Section 165, Evidence Act. Such cross-examination is not restricted to the points on which he has been examined by the court.
17. Re-Examination of Witness
The cross-examination being closed, the duty or re-examination develops upon the counsel on the other side. It is usually undertaken by the leader, even although the examination-in-chief had been conducted by the junior probably because it is supposed to require the skill and caution which only experience can teach. You will remember that cross-examination is, in like manner and for the same reason, conducted by the leader as a matter of course, unless, as is sometimes the case, where the witness is unimportant or he has great confidence in the junior’s ability and prudence.
The general rule is that the counsel who examined in chief conducts the re-examination, other things being equal any branch of the examination should be given to the counsel who is best acquainted beforehand with the testimony of the witnesses.
The object of re-examination is simply to obtain from the witness an explanation for what he said on cross-examination. Such an opportunity proceeds from the system adopted in our courts of eliciting evidence by means of questions.
The object of a re-examination is to afford the witness an opportunity to make explanation, rendered necessary by his cross-examination. Obscurities can be cleared away, and facts to which he testified in his direct examination, and of which his knowledge is clear and distinct. This may be done in a suggestive method, yet without violating the rule forbidding leading questions, for the witness may have his attention directed to one fact which is clear in his mind and gradually led from that fact to those on which he appears to have been confused.
Examination of witnesses is very important for any case whether it belongs to the civil or criminal nature and both the procedural law explain the examination of witnesses. Section 135 to 166 of Indian Evidence Act explain the examination of witnesses in which act cover all the things, like who can first examine the witnesses during the examination of witnesses and what are the relevant facts that are accepted during the examination of witnesses and what are the questions asked by an advocate during the cross-examination of witnesses and what questions are not asked during the cross-examination and also tells the power of judges during the examination of witnesses and at last give the provision related to the power of the jury and assessors to asked the question during the examination of witnesses.
Effective cross-examination can make the difference between winning and losing a trial. Although cross-examination can be the part of trial that is the most fun for experienced trial lawyers, preparing good cross-examination takes a lot of thought and hard work.
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