Cross examination lends legitimacy to a criminal trial proceeding. Called as ‘court room drama’, though, this ‘drama’ must confer that ‘truth is ultimate virtue’, and along with the court and the investigative agency, lawyers must be the defenders of this ultimate virtue
Cross examination is a basic component of a criminal trial. This is one of the fundamental principles of a fair trial and revolves around the rights of an accused for seeking justice in the light of law. Any denial of such rights will make a travesty of justice and vitiate entire criminal trial proceedings.
Once the charges are framed and read over to an accused, trial begins with all formality. Criminal trial starts with a prosecution version, often called ‘prosecution story’, in which prosecution puts forth its own version of case by interlocking all evidences indicating the guilt of an accused. Public prosecutor brings all witnesses one by one in the order of convenience. Preferences are given to injured witness and then interested witness, formal witness and finally public witness. These witnesses are called to support prosecution and the role of court is limited. Prosecution starts with examination-in-chief eliciting all valuable information and providing record of the entire incident. Prosecution supplements its theory by producing case diary and medical report.
The right to cross-examination stemsfrom the natural rights of an accused for a fair trial. Section 137 of the Evidence Act provides for examination-in-chief, cross examination and re-examination. Section 138 of Evidence Act confers right to the adverse party to cross examine witnesses who had been examined in chief, subject to, of course, their desire to the said effect. Right of cross examination can be exercised by a co-accused when his interest is in direct conflict to that of an accused. If witness is not making himself available for cross examination after being examined in chief, the evidence led by him loses all credibility.
Once the prosecution is finished with witnesses having been called in the witness box, defense counsel is given the right to cross examination his testimony. Unless opportunity for cross examination is given, testimony would not be taken into consideration. This is a cardinal principle of fair trial. This process is repeated for each and every witness that was produced by prosecution. After this process, often defense produces its own witnesses andthe same procedure is followed again here. Here prosecution gets the opportunity of cross examination of defense witness.
Counsel: You stated that you saw [accused] having [rifle] on that [day] in question. You [ran] over there, tried to [grab] the [loaded rifle] and tried to [serrate] with the deceased, [suddenly] bullet was fired at the deceased – isn’t that true?
A casual look at this statement would suggest nothing important. However, a lawyer’s look [emphasizing on words put into brackets] will enthral you with his many questions and many versions. Here comes the concept of “if this is true, what else must be true!!!!!”
Cross examination is directed, firstly, at the credibility of the witness; secondly, at the facts which had been deposed in chief, including cross-examiner’s version thereof and, lastly, at the facts which witness has not deposed but which cross examiner thinks he is able to depose.
Cross examination serves two basic purposes: Firstly, it is used to contradict prosecution version, and, secondly, to impeach the credibility and character of witness. The process is tedious and runs into various stages by which defense may establish that the prosecution version is either inconsistent with testimony, and the evidence given by their own witness has personal bias against an accused. Sometimes cross examination depicts that the witness had personal grievances against accused and also demonstrates histestimony as contradictory. It also exemplifies that either witness has a lack of knowledge about the facts and the evidence, or that the witness is otherwise incapable of testifying a particular fact due to his or her inability to see, hear, perceive, and observe important parts of the incident.
There are basically two approaches to cross examination. The first one is called constructive cross examination in which defense counsel often elicit positive evidence or statement from the prosecution witness. Here counsel puts questions whereby it can prove its own version of incident. This is a tiresome job and unless counsel has high lawyerly acumen, he or she can’t perform it.
The other approach to cross examination is to, may be, destroy the credibility of prosecution witness by digging out contradictions in his testimony. This is monstrous job and must be performed with caution because if such destruction goes wrong, court may raise negative presumptions against defense version.
Art of Cross Examination: A lawyer must know when to STOP
Cross examination is the most important aspect of any trial and is considered to be an art. For effective cross examination, a lawyer has to keep the important points of the case in mind and must concentrate upon those points only. A cross examiner must act like a psychologist, and after putting some questions, he must understand the mentality of the witness. While cross examining, if the lawyer gets a reply in his favour from the witness, he must stop there and then, otherwise further cross examination on the point runs the risk of losing the favourable statement altogether. As the witness may even contradict himself so as to negate the benefit of the statement initially received by the lawyer in his favour.
Lawyerly instinct requires genuine effort and persuasiveness. It is a proverb of the legal field that “it is better to be fact finder by presenting a calm, assured presence in the court room than verbose theatricality”. If counsel is preparing for examination-in-chief or cross examination, he must prepare himself for answering every possible question which may be asked during trial. Theory of prosecution, clarity about defense version, its relationship with the testimony of all kinds of witnesses produced in court of all for evidence purposes are some basic points. It is often stated that unless required one should not go for cross examination of everything. Defense should go for it only when testimony of witness provides some positive support to its theory. At the same time defense must also know what probable attack would come from prosecution. For example, if evidence provided by prosecution witness is needed to introduce a new theory or may be helping prosecution theory; then only he may be cross examined.
In fact cross examination provides three kinds of help during a criminal trial. Firstly, it provides a substantive help in collecting positive evidence. Questions are posed to get answer for testimony or facts related specifically to the crime charged. Secondly, in some cases, it is required for some technical reasons. For example, questions are asked to fulfill technical legal requirement of admissibility and relevancy under the Evidence Law. Here questions should be phrased carefully to elicit the ‘desired’ response. Finally, it has emotional role as well. Here, questions should always have an ‘emotional impact’on the fact finder. This emotional impact may stem from the substantive nature of the question as well as by the manner of asking questions.
Various models may be proposed for formulating effective cross examination. Where formal witness is produced in court or defense witness is proposed, counsel should talk to him about his role and review their earlier recorded statement given to police during investigation. This refreshes their recollection of the facts, helps get, composed and complete testimony and avoid surprises. Such preparation also gives the counsel an opportunity to have a better understanding of the theory and facts which the witness followed in making testimony The counsel will be in a better position to develop additional necessary facts, to strengthen, the weaknesses in his testimony or theories and to suggest the points in their testimony on which they are likely to be cross examined by prosecution. It is noteworthy that such practices are well developed in European courts whereas Indian trial courts still struggling to evolve such practices to serve the interests of justice.
Prior to cross examining prospective witness, the counsel should discuss all prior evidence submitted or statements made by the witness and the competency of the witness to testify on the matter in dispute. In this process it is essential that the counsel should discuss with each witness, prior to trial, the oral and documentary evidence which is to be introduced through such witness. Preliminary discussions with prospective witnesses should be conducted prior to the issuance of subpoenas. The witness’ direct testimony should be thoroughly reviewedto ensure that he understands the questions, his role as a witness and the potential cross-examination.
One of the most interesting and workable aspects of criminal trial is cross examination of expert witnesses and preparation therefor. If an expert is employed or if it is known that the prosecution will call an expert, it is absolutely essential that thorough preparation should be made for cautious cross-examination. From the prosecution side, to buttress the expert’s opinion, plethora of facts is examined for supporting prosecution version. Prosecution explores from the expert, complete information related to the expert’s background, education, training, experience, previous Court appearances, etc., which will form the basis of qualifying the witness as an expert and which will give weight to the opinions expressed.
Experts are often called as formal witness and their testimony is given maximum weight. So, in such a case greater care and lawyer’s skill is required for handling such situation. To weaken his testimony, exploring fundamental contradictions, following steps may be taken: Firstly, counsel must make full but careful inquiry about he/she ‘being expert’. On many occasions, experts are called upon to testify on the basis of ‘hypothetical questions’. Here, such hypothetical questions may be either attacked on the basis of legal principles of admissibility or while prosecution drafts such hypothetical questions, they oftenintroduce those facts which are already established in the record by stipulation, testimony, etc. So, such objections must be taken and sometimes these objections makes his or her testimony either irrelevant or makes him or her vulnerable to various mistakes.
The role of an advocate is that he should attack the opponents’ side zealously meaning thereby that he must cross examine the witness in depth but the advocate somewhat feel uncertain, apprehensive and a little bid scared, because during the stage of trial, cross examination of the witness is the weakest advocacy skills one has. Needless to say that undoubtedly, cross examination of a witness is one of the most difficult trial advocacy skills to master. There are several factors which impact counsel's conduct of cross-examination e.g. experience, talent, preparation, organization, etc.
Widest possible latitude of asking questions is provided to counsel during cross examination. However, by many judicial pronouncements, it is well settled that every such question and answer thereof, must be proved to be ‘relevant’ and then only it may be considered as evidence. Here advocate may undertake to show that his apparently irrelevant question during cross examination would be relevant at some point of time. Such undertaking is must for fair trial.
Role of a judge is said to be passive incriminal trial, particularly in an adversarial system of criminal justice. However during trial he does more than just giving judgment. Just like a jury trial, both parties have to convince the judge and his mind about their version of story. If it is found unconvincing or not much valuable, then entire process would lead to no where. A Judge in such cases can instruct various rules and judicial norms, like relevancy of evidence, during cross-examination. For example, unnecessary attack over the character of victim, harassing the witness and threatening remarks. The judge can prohibit questions regarding mental health of witness unless the same is directly related with case. Such things often don’t work in a positive way. Evidence Act provides guideline about such things.
‘If this is true, what else must be true!!’ suggests about the nature, quality and role of cross examination in criminal trial. Right to cross examination is not only a fundamental value of fair trial but also provides legitimacy to state for imposing punishment to delinquents. This ‘Hobbesian legitimacy’ would be shaken if these fundamentals are not religiously observed during criminal trial. Though cross-examination is often called as ‘court room drama’ but such drama must confer that ‘truth is ultimate virtue’ and along with the court and investigative agency, lawyers are defender of this ultimate virtue.
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