The Art of Cross-Examination
The origin of the art of cross-examination may be traced back to Socrates, who successfully cross-examined the witnesses of the Greek government that foisted umpteen number of false cases against him.
In the modern days, the art of cross-examination is part and parcel of the trial process in a court of law and it is an essential trait to be possessed by a lawyer who aspires to be successful in his legal profession.However, in order to become an adept in the art of cross-examination a lawyer has to make sustained efforts in the right direction, by practicing it and by observing other lawyers who are successful at it.
The sixth amendment to the US constitution enables a defense lawyer to confront his witness so as to develop his own theory of defense. Section 138 of the Indian Evidence Act provides for the cross-examination of the witness.
The ultimate purpose of cross-examination of a witness is to bring out and establish truth.In US, the cross-examination is done in the presence of a jury and ultimately it is the jury that accepts or rejects what is proved or not proved in the course of cross-examination of a witness.In the Indian courts,the cross-examination of a witness follows the examination-in-chief.
The art of cross-examination in a criminal case slightly differs from a civil case.In a criminal case, since the duty of the state is to prosecute the accused it is the duty of the defense lawyer to develop his own theory of defense through the art of cross-examination. In other words a defense lawyer through the art of cross-examination tries to disprove the case of prosecution, by showing that the prosecution witness is biased, lacking in knowledge and correct facts,the facts put forth by him are against law etc.Once the jury is convinced about the truth of the defense theory, it supports the defense theory resulting in the acquittal of the accused.In countries like India where the jury system is not practiced, through the art of cross-examination, the prosecution witness is proved wrong and once the judge is convinced that the defense theory has been successfully proved and established, it leads to the acquittal of the accused.
In a civil case, the art of cross-examination is being used both by the plaintiff as well as the defendant's side.While the plaintiff's counsel cross-examines the witnesses of the defendant on the basis of their examination-in-chief, the defendant's counsel uses it as a weapon to cross-examine the plaintiff's witnesses on the basis of their examination in chief. However, the most successful cross-examination will decide the fate of the case.
The art of cross-examination helps to establish a basic record of evidence on the basis of which the lower courts pronounce their judgements.When they err leading to the miscarriage of justice, the basic record of evidence serves the aggrieved parties to prefer an appeal in the appellate court.The appellate court in turn proceeds to appreciate the evidential value of the cross-examination and when it is convinced that the lower court has erred in its judgement, it proceeds to revise or reverse the decision of the lower court.
Any lawyer who wishes to master the art of cross-examination should make thorough preparation by going through the depositions of witnesses, making a careful study of the documents submitted and relied upon by them, besides carefully following the ensuing tips:-
i) To master the art of cross-examination, a lawyer must practice it.
ii) An upcoming lawyer should observe his/her fellow lawyers when they cross-examine the witnesses.It will help to equip and master the art and handle different cases and situations.
iii) An intending cross-examiner must thoroughly go through the depositions and carefully sift the other available materials.
iv) It is always advisable to prepare an outline for your cross-examination and strictly follow it.
v) During the cross-examination do not argue with the witnesses and never ask a question with a tag like correct, right, etc.
vi) While cross-examining simplify your questions as far as possible and never ask a complex question that may contain more than one fact.
vii) It is advisable to put your questions during the cross-examination towards the witness in such a way that he mostly answers 'yes' to your questions.Then the jury may be tempted to be convinced that your defense theory is right.
viii) It is always better to avoid asking irrelevant questions towards the witnesses during the cross- examination.But the Indian Evidence Act though enjoins you to ask relevant questions during the cross-examination, it also permits that your questions need not necessarily be based on the examination-in-chief submitted by the witness.
ix)It is always advisable to ask leading questions during the cross-examination so that you can always expect positive answers from the witness.