Tuesday, 9 May 2017

Shiksha Srivastava

Art of Cross Examination used by: Sr. Adv. Ram Jethmalani, Supreme court

Lawji.in/Ram_jethmalani_art_of_cross_examination

“The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross examination.”- Francis L. Wellman

When asked, the undisputed champion of cross-examination, Mr. Ram Jethmalani described the art of cross-examination as the most effective weapon for the discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness.
The search for truth is the ultimate and idealistic end of all litigated matter in a court trial, and that truth is obtained due to the process of cross examination in the conduct of litigation.

Mr. Jethmalani understands that in India where large number of complaints and cases are filed in civil and criminal courts every day, delay in justice is common due to the rapidly growing pendency of cases in courts. Examination of witnesses plays an important role in the presentation of the evidence in a court of law in both civil and criminal case and admissibility of that evidence is an important aspect which has to be decided by the judges only. Due to this procedure of examination, each case is looked upon clearly and it takes long time to pass the judgment by the court.

Purpose of Cross examination

Cross Examination is one of the most important facets of our legal system. To understand the role and importance of cross examination, let us take an example. If a man reports to a court that he has seen A shooting B with a revolver on a particular date, in the evening, and thus killed him. Then how will the court know whether or not to believe the version of the so­ called eye witness. There are equal chances of the testimony of witness being true or false. A witness may have several reasons to say falsehood or even to say truth. A witness may give false information due to enmity, greed or to implicate somebody with ulterior motives. So, a witness can be believed only if he/she passes the examination of truth through the process cross­ examination.

This process is done by giving an opportunity to the opposite party to ask such questions which challenges the veracity of the information given by the witness of the opposite party. Questions about previous statements and conduct before, during and after the incident happened may be framed and put forth. These questions should not be absurd, scandalous or arbitrary. If the witness replies satisfactorily then the court may declare them as reliable witness, but he/she fails the cross examination, then the testimony is of no consequence.

Cross examination varies from case to case and man to man. The age, position, status, expression in court, experience, qualification and expertise etc., are all subjects of cross examination. It is dynamic in nature as the questions change on the spot according to the response of the witness. In the case where the testimony is of a child witness, normally it is to be corroborated as such a testimony can be easily tutored, as children are vulnerable. But testimony of an adult, if reliable, is sufficient to convict an accused.

Cross Examination under Indian Legal System

Right to cross examination flows from the principle of Natural Justice that evidence may not be read against a party until the same has been subjected to cross examination or at least an opportunity is given to cross examine. This right is one of the most powerful instrumentalities provided to lawyers in the conduct of litigation. The most important purpose of this right is to attempt to destroy the credibility of the opponent’s witness.

Chapter X of Evidence Act 1872, deals with examination and cross examination of witnesses before court of law. The relevant sections are section 136 to Section 166 of the evidence Act. Section 137 tells about examination in ­chief and cross examination of a witnesses. According to this Section 137, the examination of witness by the adverse party shall be called his cross examination. Section 138 provides the Order of Examination, it may be a technical rule but it flows from the essential rules of justice. It says that there must be first an Examination in Chief, then the opposite party cross examines the witness and if the party calling the witness so desires, there may be re-examination.

Basics of Examination of a witness in court: ­ the examination of a witness who calls him is called as ‘Examination in chief’. After Examination ­in ­chief, the examination of the witness by an opposite party is called ‘Cross examination’. The examination of a witness subsequent to Cross ­examination is called Re-examination. The Re­-examination can be made to explain a matter stated in Examination ­in chief and if some new matter is narrated in Re­-examination the adverse party can again cross examine about new matters.

Art of Cross Examination

The art of Cross Examination plays an important role in the trial of each and every case whenever the talent and hard work of the lawyer is involved to secure justice for their clients. To learn and perfect the art of cross examination a lawyer must observe others, read trial and deposition transcripts and by conducting the examination personally. A trial lawyer must adapt well to particular witnesses and different cases.

As already discussed the main object of cross examination is to find out whether the testimony is truthful or to detect the falsehood in it. It is done to either destroy or weaken the force of evidence given by a witness. Cross examination of witness is the duty of every lawyer towards his client. It is the most efficacious test to discover the truth and to detect false statements made by the witnesses. Justice can be defeated if cross examination is not done properly.

Often, however, one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination. Thus the preparation by a lawyer is very important before initiating a Cross-Examination of any witness. The lawyer should clearly bear in mind those points he or she wishes to make with that witness and frame them beforehand. These points should also be discussed with those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give chance to every party to Cross-Examine the other party’s witness.
A lawyer should use leading questions (Section 141) i.e. “is that correct?” and “isn’t it a fact” etc. at the time of Cross-Examining of the witness because asking leading questions is perhaps the oldest rule of Cross-Examination.. Leading questions are effective because they essentially allow the Cross-Examiner to testify and the witness to ratify. The technique advances one of the important dynamics of the courtroom is control. Asking leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable and informative.
The lawyer must also keep in mind while framing the questions that the questions asked during the Cross-Examination must be relevant to the issue related in the facts of the case. Indecent & scandalous questions can also be asked by the advocate at the time of Cross-Examination if they relate to the fact in issue. Most importantly questions intended to insult or annoy should be forbidden by the court even though the question may seem to be proper.

The court which has authoritative power to decide the case can recall the witness for the Cross-Examination based on the facts and circumstances of that particular case. A summary procedure does not take away the rights of the parties to Cross-Examine as every party has to be given fair deal in the matter of Cross-Examination.

Conclusion

Thus we can conclude with certain points to be considered by lawyers in case of cross examination, and for honing their art of cross examination. The purpose of cross examination is to question the testimony of the witness before the judge, in favour of the client. But the reason why cross examination evolved as the most important part of litigation was because justice is based on truth and cross examination helps the court, judges and jury reach that truth. If the lawyer does the cross examination with these principles in mind, the case will be presented to the utmost satisfaction of the judge, client and most importantly oneself, and that s how art of cross examination is understood and perfection is achieved.


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