A student taking an examination was once asked by the teacher, “Are the questions difficult?” The student promptly replied, “No Sir! it’s not the questions but the answers that are difficult.” With cross-examination of a witness in the court, it is just the other way round. Firstly, in this case, the questions are difficult. Framing the right questions is a taxing job requiring skill, judgment and labour. If even a single question goes wrong, the fate of your client’s case is sealed. Secondly, the test is not of the witness who is facing the cross examination, it is of the lawyer conducting the cross-examination.
In adversarial system, trial of a case is akin to two hostile armies standing face-to-face in the battleground. The lawyers of the parties are confronted against each other like soldiers of armies at war. They attack each other with words. Fortunately, or unfortunately, the similarities end here. Unlike the sword of a soldier, the sword of a lawyer is not only intangible, it is double-edged too. One end of the sword is always facing the attacker. If the lawyer falters, he not only misses the target but also heralds the death knell of his client’s case. The question is what is that sword in the hands of a lawyer? The answer is, it is the sword of ‘cross examination’, invisible and double -edged. In a trial, the success or failure depends upon the outcome of cross-examination of the witnesses.
There has been a perennial debate as to whether cross-examination is a science or an art. The points and counterpoints put forth by the debating parties almost balance the scales. Therefore, instead of becoming a party to this debate, let us try to learn some tools/ techniques of cross-examination and concern ourselves with the nuances of cross-examination. By knowing the rules of the game, one can achieve the desired goals by an effective, result oriented and meaningful cross-examination.
The purpose of cross-examination is to dig out the truth. Thus, in a cross-examination, broadly speaking, the objectives are as under:
There are certain basic rules which must be followed as a prelude to a successful cross-examination:
Cross-examination is done on facts, not on law. The law is what it is, it is not subject to admission or denial by the parties. Therefore, the entire cross-examination is oriented towards establishing the facts. However, there is one exception—in the case of an Expert Witness the cross-examination may be on the facts of the particular case as well as on the opinion tendered by the expert. Before the start of the cross-examination make yourself at home with the facts of the case. For the purpose of simplification, divide your facts in the following categories:
It is not sufficient to know your own facts. For a successful cross-examination, one must be fully in grip of the facts of one’s adversary. Rather you should know more about the facts of your adversary than your own facts. With full control of the facts of the adversary, you can always foresee how the adversary would react to a particular question. Therefore you can frame your question in such a way that it leaves no room for the adversary to hide the truth.
Cross-examination is not groping in the dark. It is an assignment which cannot be trusted to a person who has not done his homework well. Noting could be fatal, if one is not equipped with the facts. Therefore, one must be fully conversant with the facts of the case in the same way as a soldier is armoured.
When you are facing the witness in the witness box, it is not only the case which is on trial, but also your skills of cross-examination. You have to build the case of your client brick-bybrick, in the same way as a mason erects a wall. There can be no strait jacket formula for a successful cross-examination, but the following are the imperatives to be observed:
Never put a question to the witness about the facts which already stand admitted in pleadings or otherwise. This would either unsettle the admissions or give the adversary an opportunity to explain the admission which would dilute or take away the admission.
You must be very particular about the point which you want to establish through a witness. The moment the target is achieved, ‘stop’ the cross-examination immediately. There is a general tendency to cross-examine at length and indiscriminately. One can go on and on but to learn when and where to stop is the most important thing. Never overdo. Never beat about the bush, as it will do more harm than good and you may end up cementing the case of your adversary.
Always remember that there is a world of difference between ‘interrogation’ and ‘cross-examination’. An interrogator is on a fishing spree. He wants a peep into the mind of the subject to extract information. He does not seek a particular answer. The objective in cross-examination is entirely different. It’s purpose is to get the answer in your favour. New facts emerging during cross-examination may go against you. The golden rule is, ‘never ask a question, unless you know the answer it will solicit’.
Never use ‘tough’, ‘high-sounding’ or ‘bombastic’ words. Your language should be plain and simple. Otherwise, the adversary will argue on the aspect of equivocal language or the witness having not understood the question or understood in some different context. This would dilute the effect of testimony and if that particular aspect has not been replied in your favour by other witnesses, you are undone.
Give the witness a patient hearing. Sometimes, under performance pressure you do not properly listen to the witness and repeat the same question which the witness has already answered in your favour, thus inviting the risk of a different answer. If you listen to the witness carefully and patiently you will win his confidence and he is most likely to co-operate.
This does not mean physically touching the witness. This means understanding the psyche of the witness and using that to your advantage. Cross-examination is negotiating the behaviour of the witness. Say for example, if a witness was once involved in some illegal activity and feels low referring to the same, you can use this information to diminish his confidence. Likewise a short tempered witness can easily be put off track by some relevant but touching question. If you know that a witness has a very high opinion of himself, you can flatter him and use the situation to your advantage.
You can frame your question in such a way that you start with a series of simple questions which you are certain will evoke answers in the affirmative. Once you have put the witness on ‘autopilot’ mode of “yes, yes”, put your pertinent question and most likely he will reply in the same vein and you get the ‘yes’ for a question which otherwise would not have come.
If the witness is making a statement which is different from some of his previous statements, then it is necessary to draw the attention of the witness to the same by reading the relevant portion of the previous statement to the witness with which he is to be confronted. This gives the witness an opportunity to explain the stand in his previous statement. If he is not confronted with his previous statement, then the same cannot be used to discredit him. Also remember, that examination-in-chief and cross-examination are parts of a single statement and have to be read together. Thus, a witness in his cross-examination cannot be confronted with his examination-in-chief. One more important point, a witness can be confronted with his own statement only and not with someone else’s statement.
If the witness has not deposed in your favour on all or on some aspects of the case, put your case to the witness. This is called ‘suggesting your case’. Let him deny the suggestions. Until and unless you put your version of case to the witness you will never be permitted to argue on those lines. But remember not to suggest the case which he has already admitted in your favour in the cross- examination. The risk is that he may withdraw, explain or reengineer the admission, which may be losing what you had already gained.
Witnesses are the eyes and ears of the court. Their status is akin to guests of the court. Therefore never show disrespect to the witnesses. Never intimidate the witnesses. This would not be taken kindly by the court and may even invite action under contempt. With disrespectful or intimidating attitude towards the witness, he is likely to adopt a confrontational attitude and may give unfavourable answers.
The above guidelines are only illustrative and not exhaustive. However, they are imperative for an effective crossexamination. Consequently, they are to be chewed and digested. Cross-examination is not learnt by merely reading the best books on cross-examination, it is learnt by actual practice. With the passage of time and practice, one can develop one’s own skills and strategy.
Till then, the above guidelines may act as your mentor. By their judicious use, you can avoid prolixity and sharpen your skills of cross-examination, which is the hallmark of a trial lawyer.
Advocate A.K.Singh, New Delhi
Understanding the psyche of the witness is important. But what matters more is that the lawyer should have obtained maximum information about the witness’s background before conducting the crossexamination. The cross-examination would also depend on the background of a witness which can be varied as the witness might be a partisan witness, a circumstantial witness, a medical expert or ballistic expert or may be a stock witness etc. A good lawyer may not be a master of law but he necessarily needs to be the master of facts by giving due time to the client. One should proceed with the case only when the entire facts are obtained.
Playing with words during a cross-examination is a thing of the past nowadays. Judges nowadays don’t permit the lawyers to play with the words; rather they strictly direct the cross-examiner to put the question in a clear-cut manner. The judges also go a step further to explain the meaning of the question to the witness. Hence, I would reiterate that preparation of the facts and knowledge of law is what makes one a good cross-examiner.
To put leading questions to the witness is a very dangerous thing to do and should be avoided. Only the lawyers having significant experience should go for it and someone who knows exactly what he has to achieve through the process of cross-examination. What I have observed is crossexaminers very often don’t go through the statement-in-chief of the witness and instead of cross-examining the witness on a material point, they start putting the leading questions. Leading questions have the potential to backfire on the cross-examiner. One should try to limit the questions to one new fact and try and avoid using modifiers and generalizations.
Cross-examination is an art of playing very smart by being soft and mild by mastering your facts. It is about achieving the desired goals by questioning the witness and getting the replies of one’s choice. In an interrogation, the person is under the mercy of an authority who would apply all means to get something out of the person and the same may not stand in the court of law. Whereas cross-examination, on the other hand is a process where an intelligent lawyer applies his caliber to get something from the witness which would benefit his client.
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