What is Cross Examination: Cross Examination Strategies - Shonee Kapoor

The subject of cross-examination is one of vital importance in the conduct of law cases because only it has the power to sift the truth from falsehood. According to Section 137 of the Indian Evidence Act, the examination of a witness by the adverse party shall be called his cross-examination.

Section 138 of the Indian Evidence Act provides for the Order of examination. It states that the witness must first be examined in chief, then the opposite party cross-examines him and, if the party calling him so desires, may re-examine. Section 146 of the said act enables the cross-examiner to put specific questions in addition to the questions based on the relevant facts of the case. This section gives broad powers to the cross-examiner beyond the facts in issue. The main aim of cross-examination is to find out the truth and detection of falsehood in human testimony. It is designed to destroy or weaken the force of evidence of the witness. The exercise of the right of cross-examination is justly regarded as one of the most efficacious tests the law has devised for discovering truth {Taylor 12th edition S.1428 p.910}. The objects of cross-examination are to impeach the accuracy, credibility and general value of the evidence given in chief to sift the facts already stated by the witness to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross-examining party {Powell, 10thedition, p.463}. The object of cross-examination is twofold—to weaken, qualify or destroy the opponent’s case and establish the party’s case using his opponent’s witness {PhipsonOn Evidence, 15th edition para 11-17, p.249}. Cross-examination is directed to (1) The credibility of the witness, (2) The facts to which he had deposed in chief, including the cross-examiner’s version thereof and (3) The facts which the witness had not deposed but to which the cross-examiner thinks he can depose” {Halsbury, 4th edition Vol. 17, para 278, p.194}

The right to cross-examine also flows from the principles of natural justice, which state that evidence may only be read against a party once the same has not been subjected to cross-examination or at least an opportunity has yet to be given. Thus, the provisions imbibed in section 138 of the Indian Evidence Act are not only a technical rule but also a rule of essential justice. The testimony of a witness is not legal evidence unless it is subjected to cross-examination.

Cross-examination is a statutory right that vests in a party to the proceedings. The party with the right to participate in any enquiry or trial can cross-examine the witness/es. A right to cross-examine a witness can even arise when a witness speaks against one’s interest who calls him. There are provisions to declare a witness hostile u/s 154 of the Act. Failure to cross-examine a witness on some material part of his evidence, or at all, may be treated as an acceptance of the truth of that part or the whole of his evidence {Halsbury 4th edition, Vol. 17, para 278, p.194}For cross-examination proceedings, if you want to play the game, you better know the rules of the game. And if you want your opponent to play by the rules, you’ll not only have to recognize the infraction, you’ll have to complain to the referee and tell him/her exactly which rule was violated by the opposition.

At least 70% of the effectiveness of cross-examination is determined before the cross-examination begins. Preparation is that important.

Main objective of cross examination is

1. To develop favorable matters that has been left unsaid on direct examination;
2. To introduce all of a conversation or document, if the witness has testified to only a part out of context;
3. To demonstrate that the witness is lying;
4. To establish that the witness could not have seen or heard what he claimed;
5. To test the witness’s ability to hear, see, remember, and relate with accuracy what he testified to;
6. To establish the witness’s bias or prejudice;
7. To establish any interest, pecuniary or otherwise, the witness may have in the outcome of the trial;
8. To impair the credibility of the witness, e.g., by inducing him to admit that he made statements on a prior occasion contrary to his testimony on direct examination, or by laying the foundation for proof of contradictory statements;
9. To impeach the witness by proof that he has been convicted of a felony;
10. To bring to the attention of the jury that the witness testifies evasively, hesitantly, belligerently, or so slowly that he seems to be struggling to support his testimony in chief;
11. To establish that the witness has been coached and has memorized his testimony; and
12. To impeach the witness in any other way permitted by law.

In an article on cross-examination by Mike Mclurdey and KW Mercier on the Art of cross-examination, the joint-authors have while giving practical tips and strategies pointed to Iravine Younger’s Ten Commandments as the most quoted authority on cross-examination

1. Be Brief
2. Short questions, plain words
3. Ask only leading questions
4. Never ask a question to which you do not already know the answer
5. Listen to the answer
6. Do not quarrel with the witness
7. Do not permit the witness to explain
8. Do not ask the witness to repeat the testimony s/he gave in-chief
9. Avoid long qu estion too many
10. Save the explanation for summation

Common Objections which can be raised during cross-examination

Argumentative: When an Advocate crosses the witness and asks a question without asking for new information, it makes an argument. Generally, such questions will ask for an argument in the answer to the argument in the question. This objection may be raised when an Advocate starts arguing with the witness.

Asked and Answered: When an Advocate crosses the witness, asks a question already answered previously and raises an objection. It is called the “asked and answered” objection because the question being objected to has already been asked and answered. A witness may be cross-examined on any matter relevant to any issue in the case, including credibility; this leads to Advocates sometimes asking the same questions in different forms and sometimes repeatedly. The court retains the authority to limit cross-examination if the repetitive question becomes time-wasting or harassing to the witness.

Badgering the Witness: When an Advocate crosses the witness, yells, intimidates or threatens a witness, an objection may be raised. When a counsel is badgering the witness to provoke a response, either by asking questions without allowing the witness to answer or by openly mocking the witness.

Beyond the scope: A question asked during cross-examination has to be within the scope of direct examination. Similarly, in a re-examination, the questions asked must be within the scope of cross-examination. Such objection may be raised by the counsel of the person getting cross-examined/reexamined if the witness has been made to answer questions outside the scope of the present trial.

Speculative/Speculation: If the question asked invites or causes the witness to speculate or answer based on conjecture, objection may be raised by stating “calls for speculation”. Here, the witness, to answer, is necessitated to guess or speculate the answer. The witness does not have personal knowledge of the actual answer. Listen for “Isn’t it possible” questions and “I guess” and “Maybe” answers.

Relevance: If the question asked is not about the issues at hand in the trial, objection may be raised on the Relevance of that question to the ongoing trial. With a relevance objection, the questioner should explain why the question or the witness’s answer should be included in his testimony.

No Foundation: When the counsel raises the question of lack of authenticity or source, this could also be due to inadmissible evidence. There must be preliminary facts that have been introduced before specific evidence is brought into the trial.

They are assuming facts not in evidence: Such questions are where the facts brought before the witness have not been proved or testified in the proceeding. Assuming specific facts to make a question would bring on this objection. This can be avoided by building “brick by brick” the entire cross instead of rushing through to prove a point.

Compound Question: An objection, however, would favour the person crossed to answer such a question as answering a part of it may still be considered correct and not prejudicial.

Misstatement: This could be a form of mischaracterization of evidence, misquoting the witness, vouching for a witness, or misstating the law itself. The counsel objecting must be ready with the “correct” version to have this objection sustained by the Court.

Vague: Questions in a cross which are confusing, unintelligible, ambiguous to the witness and may be misunderstood by the witness as it has more than one meaning. These questions may be construed to harass the witness or simply to waste the Court’s time.

Hearsay: It means that the witness has heard that piece of evidence from someone else and not being himself present. Such evidence, even if on record, is inadmissible. It is a fundamental rule of evidence under the Indian Law that hearsay evidence is inadmissible, though hearsay is not defined or used in the Indian Evidence Act.

Privileged communication: The Indian Evidence Act mentions three kinds of communications as privileged from disclosure, i.e., Matrimonial, Official and Professional communication, except under the exceptions provided. An objection may be raised if the question pertains to such communication and is not covered by the exception.

Calls for conclusion/opinion: Similar to “speculation”, the witness is asked to give his opinion or conclusion instead of the facts.