Preface

Photo

Cross- examination, to my mind, is a very fascinating and interesting subject. It is not a

science. You may call it an art. A science is that in which human knowledge has been
reduced to a state of law, rules, principles, theories and maxims. I am afraid, in cross-
examination one will not be able to stick to theories or set rules or even laws guiding the
pursuits of cross-examination. It is more or less some sort of a skill, some sort of an art.
There are variations in approach by cross-examiners. Some artists excel in rural painting
and some in village scenes, human faces and others in counteracting beautiful buildings.
In cross-examination also variation is bound to occur and it depends upon the man who
cross-examines. No set of rules or formula is possible to be laid down for the purpose of
cross-examination just as you cannot be a swimmer by reading a book. By reading books
you cannot be a very good cross-examiner. You have to practise. Those latent qualities
are in art which you display. By experience, by your knowledge of human psychology
and by you contacts in the world you can be a good cross-examiner. You have to be a
good psychologist. You must be able to understand human nature. The mode of cross-
examining a timid person will not be the same as to a veteran person. You should be able
to understand human nature. You should be able to understand who will react in what
way and what you want him to speak out. You may call it that cross-examination is both
suggestive and objective way of finding out truth. For the purpose of doing justice it
became absolutely necessary to cross-examination persons to find out the truth. For doing
justice judiciary is considered to be a very important branch of human civilization. In
order to bring people from jungle to society judiciary had to be established. To an
individual or even a leader or a king, therefore, justice has been one of the very important
functions of our civilized life from the very beginning; and as things have not developed
to perfection and they have to come through stages the pursuit of justice naturally has
been rudimentary. In finding out truth in some stage of human society people believed
that god helped those who spoke the truth. That imagination was of a very crude type
which was originally adopted in some country.

. Trial by ordeal: Justice will go in his favour end punishment will be given by God by
burning his finger. Later it was found that innocent persons were also punished. Therefore
that practice disappeared and some other things had to be devolved. One method was to
contact the two contestants one facing each other end the judge had to ask them to
quarrel. One man will say you certainly did so; you take oath before the Ganges. The
judge will go on marking and come to a conclusion. In those days there were no
Vakils/DR to do cross-examination. The accused person was allowed to engage some
clever relation or some other person to defend. That person used to do cross-examination
in a shrewd say and the judge used to form his opinion and decided cases thereby. Cross-
examination is necessary to help a judge in discovering the truth. Everybody cannot do
cross-examination. A party, howsoever truthful and innocent may be, for want of legal
knowledge or his mental deficiency is incapable of doing cross-examination. The
practice, therefore, arose of employing skilled persons. In England this work was first
taken up by missionaries. This was considered to be an act of benevolence. For some
centuries it was the missionary who helped in exposing truth before the Judge.

You have to apply the art of cross-examination for extracting truth from the adversary.
The plaintiff and defendant both have cases and the judge knows what the case of each
party is. In civil cases there is not much scope for cross-examination as judgment is
mostly based on records. In criminal cases there is scope. Onus is on the prosecution to
cross-examine. Therefore in criminal cases cross-examination, I should say, is the most
important part of a professional skill which a lawyer/ defence representative/ defence
representative has to display if he wishes to give the maximum advantages to his client.
As you must have followed my submission on this point, you must have found that the
object of cross-examination is both destructive and constructive. You have to judge which
will go the benefit of your client and convince the judge that the prosecution’s version is
not correct. Therefore cross-examination his two sides-destructive and constructive. You
have to demolish the picture which has been presented before the Court. With some
witnesses your cross examination may be of constructive type. You have to plead of a
private defence in a murder case and you have injury on your side. A good cross-
examiner has to train himself both for the purpose of construction or demolition. Now
naturally one will ask how to demolish the case of a hardened lawyer/ defence
representative/ defence representative. There lies your skill and their lies your art. It will
come to you by experience; it will come to you by studies of human nature. Just as tow
wrestlers meet in a wrestling arena so you have to meet. Before actual wrestling they try
to measure the strength of each other. Similar is the case in cross-examination; you have
to meet like a wrestler. The object of cross-examination is to convince the Judge or the
Jury. If you find a weak spot in his mental condition, well, you are able to discover that.
A witness speaking falsehood is bound to support one falsehood by other falsehood. The
witness has to be very carefully handled. In the case of a very crafty witness find out the
weak spot in his evidence, and make that the central focus. In the case of a simple witness
the method should be different. As a matter of fact, I am more afraid a simpleton than in
the case of a crafty witness. You have to be very careful in the case of a simpleton
witness. You have to find out if the witness is of hardened type, novice in the court or a
tutored one. In the interest of your own case the lawyer/ defence representative/ defence
representative is also enjoined by common sense and reasons to watch your witness.
Careful watching brings you unexpected materials in your favour.

The third requisite is an art of camouflage -- art of secreting your real intention. Art of
camouflages is very material – and strategic to employ in cross-examination. Your real
intention may not be known to the party while cross-examining. Art of hiding your
intention is a very successful method in cross-examination. The demeanor of the cross-
examiner is also very important just as the demeanor of the witness. The art of
concealment of one’s emotions is very important for a cross-examiner. You have to keep
in mind the following to weaken the case of the adversary while cross-examining:-

(1) Are the witnesses, whom the opposite party is brining, independent or impartial, or
have they got any bias against the accused. You should gather this information from your
client. Partiality has to be challenged. Relationship, if any, has to be connected. You have
to question his independence. To an independent witness the cross examination will be of
a different type. Powers of memory, imagination, entertaining beliefs of others, etc., have
to be kept in mind while cross-examining.

(2) Whether your story is inconsistent with what you stated before. Inconsistency is
another test of finding out or sifting truth from falsehood. You have first to study and
discover if in a previous statement he is inconsistent.

(3) Test of probability: try to make the case improbable. This is the best test. Build up
your case on the line of improbability.

Don’t think that the above three lines are the exhaustive lines of cross-examination. No
general thing can be said about that. Different types of cross-examination have to be
done. A lawyer/ defence representative/ defence representative has to so train himself
from the very beginning that to a Court he should be jack of all trades, though he is
master of none. You should pretend to know everything. In order to be able to handle the
case for cross-examination you must have studied the case in all ways. You must apply
yourself heart and soul to the subject, and then only you can be of help to your client.

You have to be very cautious in cross-examining a child and woman. A child witness can
be hammered in a very shrewd way. You must be varied in your modes of cross-
examination. A cross-examination must not ask too much. You must know what not be
ask. You must know where to stop asking because putting too many questions spoils the
case at times

With I above understanding here’re are some tips to highlight the special purposes of
cross-examination and to be a guide for mastering the art of cross-examination.

 Don’t confuse cross-examination with a deposition. The purposes of each are

completely distinct: the purpose of a deposition is to find out what information
the witness has and nail the witness down to a particular version of the facts, and
the purpose of cross-examination is to ascertain the truth of alleged facts.
 Consider whether to cross-examine at all. The answer to this depends on
whether the witness has testified to anything that injures your case.
 Control your own demeanor during cross-examination. When counsel speaks
pleasantly and frankly, shows confidence, refrains from acting surprised, and
stays focused on the real issues, he or she projects credibility and adds to the
credibility of his or her case.
  Keep it simple. Always keep cross-examination questions short and simple.
Convoluted questions will lead the jury to conclude that you are trying to confuse
witnesses rather than to get to the true facts.
 Keep it short. A long cross-examination may lead the jury to conclude that the
witnesses’ testimony must be of particular significance.
 Only ask questions that help you. Never ask a question on cross-examination
unless (1) you know what the answer will be, and (2) the answer aids your side of
the case.
 Avoid open-ended questions. Open-ended questions give the witness too much
latitude to answer. They are particularly harmful when asked of an expert witness
who will then look toward the jury in a very professorial manner and explain the
matter yet again to the dummy lawyer/ defence representative/ defence
representative who didn’t get it the first time.
 Know when to quit. Always quit while you are ahead. When a cross-examination
question elicits a helpful answer, don’t elaborate by asking a further question on
the same subject because the witness will likely use those further questions to try
to explain away the earlier answer.
 Make good use of deposition answers. Having the witnesses’ sworn answer to a
question means that you can safely ask that question during cross-examination as
long as it advances your position. If the answer is the same as that given during
the deposition, then favourable information is before the jury, and if it differs,
then you can impeach the witness with the deposition testimony.
 Get the court’s help with a recalcitrant witness. Each time the witness gives an
evasive answer, politely ask the court to instruct the witness to answer the
question. Each time the witness’s answer goes beyond the scope of the question,
ask the court to strike the offending portion of the answer and to instruct the jury
to disregard it.
Cross-examination has been called the ultimate test of the litigator’s skill. The key to
mastering the art of cross-examination is understanding its purpose, deciding carefully
whether it’s necessary, and conducting it sensibly and carefully

Love

S.Srinivasan

Retired bank unionist