Understanding Cross Examination: Part-III

By Bhavya Nain[1]

The art of cross examination may be a complex art, but we can always perceive, understand, use, discuss and share some of its basic tenets. In the last two articles in this series, available here[2] and here[3], the author has tried to debunk some myths about cross examination and has also tried to analyse cross examination from different angles. In the present article, the author has tried to discuss some basic tenets of the art of cross examination by way of a so-called famous biblical story of an interesting cross-examination.

The Story of Sussana and the Elders

This story, and the cross examination related thereto, dates back around 100 BCE. This story finds mention in the 13^th Chapter of the Book of the Daniel, the Old Testament. The story is: that a beautiful young Hebrew wife named Sussana married to Joachim, a wealthy man. One day when Sussana was bathing alone in a garden, two neighbouring elders who had an eye for her, secretly observed her bathing. When she was thereafter returning to her home, the two elders accosted her and urged her to have sex with them and also threatened her by saying that if she does not agree to have sex with them, they will falsely accuse her of adultery with a young man in the said garden. Sussana, nevertheless, declined the elders. Thereafter, she was put to trial under the false charge of adultery on the complaint by the said two elders.

The Famous Trial

In the trial, the elders under oath testified the fact that Sussana had committed adultery with a young man. They also testified the fact that the elders had seen Sussana and the young man in a compromising position in the garden and when the young man saw them, he ran away by overpowering the elders. The testimony of the two elders seemed real, at that time, and the chances of conviction of Sussana were quite high. The consequential death sentence for Sussana seemed inevitable. But, a lawyer named Daniel came forward to defend Sussana.

The Famous Cross Examination

Daniel, the lawyer of Sussana did a very short cross examination of the two elders. He asked the first elder only one question. The question was under what tree did the elder saw the Sussana and the young man together in the garden? The answer came: a mastic tree. Daniel separately asked the same single question to the other elder also. Now, the answer was: an evergreen oak tree. With this pithy cross examination, Daniel got an acquittal for Sussana and the elders were instead executed for false accusation/ testimony. This was because the oak and a mastic tree are very different in shape and size and appearance.

Lessons to be learnt from the said Cross Examination

The lessons are:

Firstly, one must be brief in his cross examination. The reason for this is that if the lawyer conducting the cross examination asks too many a question, the more are the chances that the lawyer will get some kind of unfavourable or damaging answer from the witness under cross examination. Experienced cross examiners target only limited sections/ areas of the witness’s testimony which is unfavourable to them. Asking more questions than necessary only works to the negative. Even, the lawyer of Sussana did a single point and pithy cross examination of the witnesses.

Secondly, one must know when to stop the cross examination. The lawyer of Sussana stopped the cross examination of the second elder once he got a favourable contradictory answer. He did not cross examine the second elder on any other issue or fact. Experienced lawyers also behave in the same manner. The issue of when to stop is almost as important as from where to start the cross examination.

Thirdly, one must save the ultimate conclusion for oral arguments. The lawyer of Sussana did not give the second elder an opportunity to explain the contradiction as to the tree under which the accused and the young man lay. The lawyer of Sussana did not put any question to the second elder as to why there is contradiction to the statement regarding the tree. The lawyer of Sussana saved this issue of contradiction for oral arguments. The reason for this was that if this issue of contradiction had been expressly pointed out to the second elder he may have retracted his earlier answer or may have explained away his previous answer. This scenario was avoided by the pithy cross examination by Daniel.

Fourthly, one must be able to create noticeable contradictions in the testimony of the witness. The aim of all cross examination is to create such contradictions. Melt down of the witness in the witness stand seldom happens. The task of a cross examiner is to create discrepancies, and contradictions in the evidence of the witness.

Conclusion

We can always understand some basic points about cross examination through the famous and celebrated examples of cross examination. The story of Sussana and the Elders does indeed help us in this regard. The art of cross examination requires the cross examiner to be brief; and he avoids to ask too many questions; and he listens to the answers; and also saves the ultimate point for oral summation. This lesson can be learnt from the short route of analysing the said story or the long route of hit and trial in the real Court. The author in the forthcoming articles will be dealing with certain more celebrated cases of cross examination and also will be dealing with certain more commandments of cross examination.