Understanding Cross Examination-Part II

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By Mr. Bhavya Nain[1]

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Introduction

Cross examination is not a simple process of just asking any questions to a witness. It is much more than that. In order to understand this process we need to look at it from many angles. In the last Article on cross examination, available here[2], the author tried to debunk certain myths about the art of cross examination. In the present second article in the series, the author intends to introduce the readers to certain diverse approaches to study of cross examination. Through these approaches, the author intends to explain and elucidate the complex concept of cross examination from a practical point of view. There are basically ten approaches to understand the process of cross examination. These are:

Firstly, a cross examination is a difficult process. It is a difficult process because nobody teaches you cross examination in the law school in India. It is a difficult process because you have to extract truth from the supposed lairs in the form of witnesses. It is difficult because nobody is given formal training in this respect. It is a known fact that any lawyer worth his salt would agree to the fact that cross examination is not easy. It requires great skill, expertise and experience. Cross examination is the bedrock of good trial advocacy. Good cross examination is the hallmark/ trademark of any good trial lawyer. Now, a question arises as to how this difficult process can be deciphered and understood. Before one can jump on to the thumb-rules and quick-fix tips of cross examination, we must understand cross examination from other perspectives also which are given as below.

Secondly, a cross examination is like a legal lie-detector. A witness stand may state the truth or the false. Now, the question arises as to how to test the veracity of a witness’s deposition. Is there any machinery or any procedure adopted by the Court to verify the veracity of facts? The answer is that, as per Wigmore on Evidence, it is cross-examination which does this job and that is why cross-examination is called a legal search engine for seeking truth about the statements/ evidence produced/ tendered by the parties to the case. Cross-examination is a process used by the lawyer to test the veracity of evidence tendered by the opposite side.

Thirdly, a cross examination is like a legal minefield. It is a trite fact that a lawyer should know and understand answers to the following questions: (1) When to start? (2) When to stop?  (3) What to ask? (4) How to begin? (5) How to pace the cross examination? But, why is it important? It is important because one wrong question can ruin your entire cross-examination. It is important because one wrong move during cross-examination can/ will destroy your stand/ case and generally the damage incurred is irreparable. Thus, a lawyer conducting cross-examination can be compared (for above stated reasons) with a soldier treading a minefield, in the sense, that one wrong step is fatal.

Fourthly, a cross-examination is like a legal surgery. In a cross examination, blade of questions are used to dissect the body of evidence adduced by the other side. Like a doctor, a cross examiner has to handle the situation before him deftly. Like a surgeon a cross-examiner has to attack only limited areas of evidence only which are troubling the patient/ client. Like a doctor who has to get a MS (in surgery) in addition to MBBS, the cross-examiner besides having the basic LLB knowledge has to beforehand attain mastery in practical skill/ art of cross-examination.

Fifthly, a cross examination is like a mental duel. Cross-examination is a dignified fight between a cross-examiner and the witness. The cross-examiner with his flurry of questions wants to demolish the evidence. Whereas, the witness wants to evade all incriminating questions which may discredit him or impeach his testimony. This battle of wits requires the cross-examiner to systematically step-by-step chip away the veracity of the testimony of the witness. This requires cross-examiner to remain atleast two steps ahead of a witness mentally. Good cross-examiners are those who demolish the case without even the witness realising it.

Sixthly, cross-examiner is like a woodpecker. A cross-examiner tries to drill a hole in the body of evidence by a series of questions, which may not be able to be done in a single shot. Cross-examination requires small questions aimed at slowly discrediting the witness systematically, just like a woodpecker which cannot drill the hole in a tree in a single shot, but may drill it by a series of attempts at it.

Seventhly, a cross-examination is like a battle of control. In cross-examination, a see-saw principle applies. This rule was given by McCarthy on Cross-Examination. In this rule, either, the witness has command/ control over the situation/ proceedings or the cross-examiner has the same. If the cross-examiner looks good, the witness would look bad. However, if a witness looks good, the cross-examiner looks bad. So, it boils down to a question as to who commands control and how does he use it? The aim of a good cross-examiner is that he at all times must have control/ command over the witness. The cross-examiner should not allow the witness to wander away from his specific questions. The cross-examiner must not allow the witness to resort to answers such as “I do not know” or “I do not recollect” frequently.

Eighthly, a cross-examination is like a double-edged sword. Inexperienced lawyers, at times think, the longer the cross-examination, the better it is for their client. The underlying premise for this axiom is that a witness may make more mistakes if the cross-examination is longer. This axiom is fallacious. A good cross-examiner must understand that cross-examination is a double-edged weapon. At times, it can harm more to the client than that to the other side. Thus, cross-examination must be done in a manner which is safe for the client. Sometimes, convictions are not a result of brilliant prosecutions, but, in fact, are a result of inefficient or fatal cross-examinations by the defence lawyers.

Ninthly, a cross-examination is sometimes like a silent killer. Many a times, it happens that a cross-examiner due to his inexperience and/or ill-preparation silently in cross-examination demolishes his case himself. Afterwards, he realises what a mistake he has made. It also happens, many a times, a cross-examiner due to his experience and preparation, without letting the witness to know, demolishes his testimony. Thus, cross-examination many a times acts as a silent killer. Thus, the only way out is to be better prepared and garner as much experience as possible before doing cross-examinations.

Tenthly, a cross-examination is not a De-Rigoure Activity. A cross-examination cannot be treated as a normal regular activity. Though trial lawyers do cross-examinations regularly but they know and ought to know that cross-examination cannot be treated as an unimportant regular activity. One cross-examination can make or break the case of the client. A cross-examination needs extensive and comprehensive preparation. One has to go through the entire case file. One has to go through the entire testimony of the deposing witness. One has to consider and analyse the flaws in a case of the other side. Only then, one should cross-examine a witness of the opposite side.

Conclusion

Trial or Original Side advocacy is not a bed of roses. It requires oneself to hone his or her skills in the difficult area of cross-examination. It is not an easy task. This is because a party’s case is only as good as his cross-examiner. This is one of the unwritten rules of litigation. It is a false assumption that truth always prevails, in every cross-examination. It is a fact that blameworthy parties do win cases. This is mainly because the art of cross-examination is misused sometimes. Only if the rules of cross-examination are adequately publicised, then the misuse may become less. In India, the art of cross-examination should not be allowed to become the asset of a few. The author will further delve into this topic in his forthcoming articles.

Link to Part I: http://lawlex.org/lex-bulletin/the-art-of-cross-examination-myths-and-realities/8984


[1] Advocate, Supreme Court of India; and Former Law Clerk-cum-Research Assistant, Supreme Court of India.

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