Author: Venba Selvaraj (SRM School of Law)
If there is a skill that every lawyer should learn, it is undoubtedly the art of cross-examination. It is much more than asking a set of questions to witnesses, it is an art form that requires years of practice to master and perfect. In this article, I attempt to simplify the complexity of cross-examination and provide some guidelines for effective cross-examination.
What is cross-examination?
An examination is simply the process of asking relevant questions relating to the fact in issue to a witness. Examination in chief, Cross-examination, and Re-examination are the three ways to examine a witness. The Indian Evidence Act, 1872, prescribes examination of witnesses in civil and criminal cases. In civil cases, the plaintiff has the right to begin (O.XVIII, R.3), the prosecutor or complainant begins matters in a criminal case. The examination of a witness by the party calling him is chief-examination, and by the other party is cross-examination Section 137.
Purpose and need to cross-examine
Cross-examination is the most effective tool in law to elicit the truth. Cross-examination is necessary to give credibility to the testimony made by a witness. Evidence given by a witness is admissible only if the opposite part tests the truthfulness by cross-examination.
Aim and subject-matter of cross-examination
Cross-examination aims to discredit the accuracy, credibility, and value of the evidence stated by the witness during a chief examination. It also enables the cross-examining party to run through the material facts given by the witness to discover and reveal any inconsistencies, or to reveal any concealed information and facts which will strengthen the case.
The aim of cross-examination differs for each type of witness, and they are as follows:
Aim for cross-examining a fact witness (not an expert)
• Extracting favourable facts and information
• To dispute the validity and accuracy of the testimony.
• Challenging the credibility of the witness
• Using the witness to:
• Strengthen the claim made by one of your witnesses
• Impeaching the credibility of the opposite party’s witness
• Introduce your narrative to the court
• Aim for cross-examining an expert witness. In addition to the above aims, it may also have the following objectives:
• To reduce the scope and need of the expert witness.
• To pinpoint the area of his testimony that exceeds his competency.
• To identify the examined and unexamined documents.
Questioning the credibility of the opinion on the grounds of:
a. Insufficient data
b. Unscientific procedure
c. Arbitrary assumption
• Changing the opinion to reduce its effect
• To establish the credibility of your expert.
Preparation for Expert witnesses
Preparation is a very crucial step before cross-examining an expert witness. They are masters of their fields. In every cross-examination of an expert, the lawyer must be well aware of the concerned areas of science. The vocabulary of the expert is a must know, or else they may fool you with scientific jargon. The cross-examiner should try to figure out the limitations of their field, presence of any bias, previous statements inconsistent with current opinion.
Make sure you have a cross-examination plan
Cross-examination is one of the most reliable methods to extract the truth from the witnesses. However, it can act as a double-edged sword if not wielded correctly by harming the cross-examiner without producing the desired effect. It is a skill acquired with practice. Lawyers should refrain from a severe cross-examination unless there is a strong belief in breaking down a witness.
The chief examination determines the direction of the cross-examination. Therefore, the usual procedure is to take each relevant point and cross-examine the witness on it. By doing this, the opposite can identify the discrepancies in the chief examination and develop a line of defence.
Due to its unpredictable nature, it is necessary to have a proper plan before cross-examination. There is no hard and fast rule to plan for a cross-examination.
Keep it short and simple
The cross-examiner should try to control the witness during the examination. Always reduce the complex questions into simple ones. Simple cross-examinations are easy to understand and dramatic. The whole point of a cross-examination is to obtain the truth from the witness. Lengthy questions may make comprehension difficult. A simple method is to check if you have to breathe while putting a question. If you have to, it’s too long.
Avoid open-ended questions
If the answer to the question is not yes or no, then it is an open-ended question. The general advice given by lawyers is to avoid open-ended questions. The problem with an open-ended question is that the lawyer is asking a question to which he doesn’t know the answer. By asking open-ended questions, the lawyer is giving control to the witness. At times an experienced lawyer may also use open-ended questions.
Example: After a series of questions relating to the credibility of a document, a lawyer asks, “where is the attestation of the document mentioned?”. Although an open-ended question, the witness is compelled to make the answer to the point.
Know when to stop
If evidence given during chief examination is clear and conclusive, the opposite party need not cross. That would only strengthen the evidence. Also, there is no need to cross-examine the witness whose evidence he admits. A careless cross-examination may lead to the admission of previously inadmissible evidence.
Use only leading questions
A question that suggests the answers are called leading questions. Questions suggesting a subject is not a leading question. Leading questions are only allowed in cross-examination because its object is to elucidate the truth. The general rule is to compel the witness to say yes or no after every question.
Destroying the witness’s credibility through cross-examination
Destroying the credibility of a witness is necessary to strengthen your case and to weaken the adverse party’s case. The cross-examiner can choose the following methods to discredit the witness:
The cross-examiner can prove the inconsistencies and can elicit necessary information by making the witness’s answer questions containing who, what, where, when, and how.
Using the surrounding conditions against the witness.
Identifying whether the case involves any hearsay evidence.
Proving the incompetence of a witness.
By confusing him
If a long time has elapsed, the cross-examiner can discredit the witness by challenging his memory.
Confusing with other circumstances.
Through reviewing documents and reconstruction from other sources.
One of the easiest ways to discredit a witness is by establishing bias.
By changing the expression
By rephrasing the words of the witness, the cross-examiner can reduce the impact caused by it.
Another method to discredit the witness is by proving that the witness has exaggerated any part of the testimony.
Conduct during cross-examination
Maintaining a calm and composed mind is always advantageous during a cross-examination. Due to the unpredictable nature of cross-examination, a lawyer must always be on his feet. Try asking the questions politely but firmly. Maintain good eye contact. Always avoid a fight with a witness. If a witness incites you, stick to the backup questions. Listen to the witness carefully and always look for any inconsistencies in their statements.
We can see that the area cross-examination covers is very vast. The guidelines in this article are not exhaustive but merely tries to outline the elements of a good cross-examination. Constant training and practice is the only way to gain mastery over the art of cross-examination.