What is Cross Examination? | Shonee Kapoor
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What is Cross Examination?

Cross Examination in India

 
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 Indian Evidence Act, the examination of a witness by the adverse party shall be called his cross-examination.

Section 138 of 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 certain questions in additions to the questions based on the relevant facts of the case. This section gives wide 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 of 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 which the law has devised for the discovery of 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 exposes 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 two fold—to weaken, qualify or destroy the case of the opponent and to establish the party’s own case by means of 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 is able to depose” {Halsbury, 4th edition Vol. 17, para 278, p.194}

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

The right of cross-examination is a statutory right which vests in a party to the proceedings. The party who has a right to take part in any enquiry, or trial, can cross-examine the witness/es. A right to cross-examine a witness even can arise when a witness even can 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.

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 crossing the witness, asks a question which without asking for new information 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 crossing the witness, asks a question which has already been answered previously, and an objection raised. 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 crossing the witness, yells or intimidates or threatens a witness, an objection may be raised. When a counsel is antagonizing the witness in order to provoke a response, either by asking questions without giving the witness an opportunity 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 present trial.

Speculative/Speculation: If the question asked invites or causes the witness to speculate or answer on the basis of conjecture, objection may be raised by stating “calls for speculation”. Here, the witness, in order 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” kind of questions and “I guess” “Maybe” kind of answers.

Relevance: If the question asked is not about the issues at hand in the trial, objection may be raised on Relevance of that question to the on going trial. With a relevance objection, the questioner should give a reason why the question or the witnesses answer should be allowed to be included in his testimony.

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

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

Compound Question: Though an objection, however, it would be in favor of the person crossed to answer such a question as answering a part of it may still be considered correct and not prejurial.

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

Vague: Questions in 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 time of Court.

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, are 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 Indian Evidence Act.

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

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

  1. Dr S Bhattacharya February 27, 2017 Reply

    Good Research..Useful for developing skills for Effective Cross Examination and nailing the opposition

    • Site Admin April 3, 2017 Reply

      Thanks Dr. Bhattacharya for your kind comments.

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