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Marcus Tullius Cicero, a Roman statesman, lawyer and academic skeptic philosopher, expressed his views on the art of cross-examination in one of his letters thus:
“…Nothing an advocate does is simple, but of all the things an advocate must do, by far the most difficult, the most complex, and the most subtle is cross-examination.. The talent to cross-examine is a rare commodity. No more than three lawyers in all of Rome have it, and sometimes I wonder whether I myself am one of them.”
Even today, cross-examination is considered to be the ultimate test of an advocate’s skill. Many cases have been won by virtue of good cross-examination.
Cross-examination is generally preceded by an examination-in-chief and followed by re-examination. Leading questions are not permissible in examination-in-chief or in re-examination. However, the same are permissible in cross-examination. Though the scope of cross-examination is very wide, it is preferred that the same be limited only to the core controversy involved in a case. Some questions in relation to the credibility of the witness are also permissible.
Cross-examination may either be constructive or destructive. The constructive approach is when cross-examination of a witness is done to highlight or introduce a fact. In other words, when the witness has certain information that helps your case and you want to bring it to the attention of the judge, then you simply ask a series of questions to get that information from the witness.
On the other hand, the destructive approach is adopted to destroy the credibility of a witness produced by the other side which can be achieved by projecting that the witness has a poor memory or that his knowledge is not credible.
A destructive approach need not be adopted if you want the judge or tribunal to believe the facts or information a witness has revealed in his cross-examination as the same are favourable for your case. Although, there may be a scenario wherein you may have to adopt both approaches during cross examination e.g. where some evidence given by the witness is harmful, and some part of his evidence is useful. In such a situation, one needs to be extremely careful.
Cross-examination may also be conducted to highlight inconsistencies in testimony of witnesses or to show some non-disclosure on part of the witness. Extracting truth from an unwilling witness is a great art and that itself requires introspection. Cross-examination must not be conducted with fixed expectations as it cannot be ascertained as to what path will it follow.
Similarly, it would not be a good idea to anticipate the persuasiveness of the cross-examination on the judges or tribunals. However, if cross is prepared thoroughly and if there is a clear purpose behind every question, then the results may be fruitful. Further, it is necessary to understand which witness is the right witness for cross-examination. If cross-examination is executed in this fashion, it should yield a favourable outcome.
There is no straight jacket formula for conducting a cross-examination, as each case is unique. In one case you may be required to discredit the credibility of a witness, whereas in another case you may be required to built it up and that too without ascertaining the confidence, knowledge and experience of that witness. Thus, what will work for you will depend on various factors.
However, one thing is certain: you will have to invest double the time you think you will need for preparing your cross-examination. One must always bear in mind that irrespective of what approach is to be adopted, simplicity, politeness, clarity and confidence will enhance the impact of cross-examination. At times, the effectiveness of good cross-examination may get reduced if the judge or tribunal gets an impression that the witness is being bullied or receiving impolite treatment.
Perfecting cross-examination is an elusive goal. David Paul Brown, a very able lawyer at the Philadelphia Bar, condensed his vast experience into ‘Golden Rules for the Examination of Witnesses’. Although it is impossible to embody in any set of rules the art of cross-examination of witnesses, the ‘Nine Golden Rules’ do contain many useful and valuable suggestions.
Rule I. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate.
Rule II. Be not regardless, either, of the voice of the witness; next to the eye this is perhaps the best interpreter of his mind. The very design to screen conscience --- the mental reservation of the witness --- is often manifested in the tone or accent or emphasis of the voice.
Rule III. Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.
Rule IV. In a criminal trial, so long as your cause stands well, ask but few questions; and be certain never to ask any the answer to which, if against you, may destroy your client, unless you know the witness perfectly well, and know that his/her answer will be favorable equally well; or unless you be prepared with testimony to destroy him/her, if the witness plays traitor to the truth and your expectations.
Rule V. An equivocal question is almost as much to be avoided and condemned as an equivocal answer; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed, is the best trait in the cross-examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by cunning, it is the cunning of the witness, and not of the Counsel.
Rule VI. If the witness determines to be witty or refractory with you, you had better settle that account with him at first, or its items will increase with the cross-examination. Let him/her have an opportunity of satisfying either that he/she has mistaken your power, or his/her own. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.
Rule VII. Like a skillful chess-player, in every move, fix your mind upon the combinations and relations of the game – partial and temporary success may otherwise end in total and remediless defeat.
Rule VIII. Never undervalue your adversary, but stand steadily upon your guard; a random blow may be just as fatal as though it were directed by the most consummate skill; the negligence of one often cures, and sometimes renders effective, the blunders of another.
Rule IX. Be respectful to the court or the tribunal; kind to your colleagues; civil to your antagonist; but never sacrifice the slightest principle of duty to an overweening deference toward either.
There are times when the witness will give evasive answers or refuse to answer. In that case, it is desirable to seek the intervention of the court. Insofar as objections raised by the counsel for the other side are concerned, if the same are legitimate, then thank the objecting counsel or apologize to the witness and the judge/tribunal and put a better question, as it retains the confidence of the judges. If the objection raised is frivolous or baseless, then defend the question and request the judge or tribunal to intervene.
Incidentally, objections that are raised for protecting or prompting a witness are not taken in good taste by the judges or tribunals. Thus, if your witness is being cross-examined, then it is better not to object to a question unless there is valid ground for raising that objection.
During cross-examination, usage of long, complicated and complex questions must be avoided. In other words, keep the language plain and simple. One must be conscious about not repeating any unfavourable information or facts which the witness has already stated as you will be repeating the facts you don’t want to hear and you don’t want the judge or tribunal to hear.
Most importantly, use leading questions as much as you can as that would give you Yes or No answers which will be useful. Leading questions will give you control as they give you the ability to set the tone and focus of the cross-examination. The reason for avoiding open-ended questions is that the witness has already told his story without interruption in his witness statement or evidence by way of an affidavit. Why do you want to give him that chance again by asking open ended questions?
Also, know when to stop. When you get a favourable response from the witness, do not ask follow up questions, as that would give the witness an opportunity to clarify his previous answer. Thus, stop when you know you have got what you wanted from the witness.
Many lawyers ask questions they themselves don’t know the answers to. As a result, they end up being surprised by the response of the witness, which damages the case. Therefore, it is better to ask the questions you already know the answers to. Moreover, listen to the answers given by the witness very carefully. There may be an answer which can give you an important area to cross-examine and which might turn the whole case in your favour.
Therefore, when you prepare a series of questions in advance, it is not mandatory to stick to that line of questioning and you must change your line of questioning as per the answers given by the witness. Relate your cross-examination to the theme and theory of the case. Make use of the logical gaps in the statements given by the witness in his affidavit and control the length of your cross-examination and quit when you feel that the witness is giving better answers to your questions. Always remember that a confused witness may give more useful answers, whereas a knowledgeable witness with a good recollection of facts may be very harmful to your case.
At the end of the day, cross-examination is a matter of meticulous determination, hard work and common sense. The structure of a cross-examination should therefore be pre-planned and must be chronological, as it is also very useful for the judge or the tribunal to go step by step through relevant facts of the case.
Kunal Vajani is the head of BlackRobe Chambers and Tariq Khan is a Principal Associate at Advani and Co., New Delhi.