CROSS-EXAMINATION AND ITS LEGAL PROVISIONS UNDER INDIAN LAW
It is important that laws and regulations are promulgated in order to avoid a state of lawlessness, hence the need to explore the Indian Law, as well as, peruse through the cross-examination process in India.
Cross-examination is an important tool during a legal tussle in a court of competent jurisdiction owing to the fact that it is one of the viable means through which the truth can be separated from falsehood. Cross-examination is more than the simple process of fielding a witness questions. To become more familiar with it, we should consider the subject from different angles.
What is Cross Examination?
Cross-examination is the process whereby a party who appears in court asks the opposing witness’ party questions to ascertain the veracity of his claims. This are questions that a lawyer directs to a witness of an opposing party with the intention of getting privileged information from such witness.
Purpose of Cross-Examination
Cross-examination has evolved over the years due to experiences acquired during court proceedings which have spanned through centuries.
If a man approaches the court to say that he witnessed a shooting on a spot and date; and that led to the loss of two lives. How will the court believe the report? It is possible he may be saying the truth, be reminded it could as well be false claims.
A witness can make false claims due to jealousy or enmity against the other party. Therefore, the court can only accept his claims if he passes the cross-examination were the truth will be revealed.
Cross-examination will help the prosecuting counsel to obtain evidence that will aid him in the case and will also avail him of the opportunity of asking questions on already provided evidence(s) to ascertain its viability.
Central Government Act on Cross-Examination
Section 154 in the Indian Evidence Act of 1872 –provides the order to which a party questions his own witness: (1) “the court may, in its discretion, permit the person who calls a witness to put any question to him which might be put in cross-examination by the adverse”. (2) “Nothing in this section shall disentitle the person so permitted under subsection (1), to rely on any part of the evidence of such witness.”
Section 138 of the Indian Evidence Act 1872 – provides the process in which the cross-examination of a witness can be conducted. The act states that a witness must first be examined in chief before being cross-examined then can possibly be re-examined.
Section 138 of the Indian Evidence Act 1872 – this provides that cross-examination and examination in chief must coincide with relevant facts. This implies that cross-examination must be confined to the testimonies of the witness during his examination in chief.
Section 139 of the Indian Evidence Act 1872 – the act stipulates that a person that is summoned to appear before the court just to produce documents is not a witness by producing the documents and should not be cross-examined except he is asked to appear as a witness.
What is a Leading Question?
A question that suggests an answer which the person directing it intends to hear is called a leading question. Therefore, a leading question provides an answer. During cross-examination, you may ask questions like “your mother’s name is Jenny” Right? The only possible answer can either be a “yes” or “no” of which you have known it is a “yes”.
How is Cross Examination Conducted?
Cross-examination comes with rules which must be strictly adhered to for the process to be successful and exciting.
- An effective cross-examination must begin with deposition. It is not ideal for you to wait until trial before preparing your cross-examination outlines. Each of your expected questions must be asked at deposition so you can understand the answers you will receive at trial. If the answer is what you want, then you have your question ready for trial.
- Don’t ask a question that you aren’t sure of the answer. The trial is not the time for you to become amazed by answers you receive. Any surprises end when you are investigating or receiving responses during interrogations. Answers you need must be gotten during disposition. When you do your disposition work correctly, then you will get the anticipated answers at trial.
- Best to prepare a cross-examination binder. Try to make a cross-examination binder for all your witness. The binder for the witness you are to examine will contain your outline and disposition materials.
- Make a detailed cross-examination outline. It begins with you researching on the topics you want to cover during the trial.
- Ask just leading questions. During cross-examination, the expected answers from the witness must be short and straight. This will depend on the questions you ask. Leading questions will command straight and readily known answers. Asking only leading questions will direct the witness to provide answers you already have in your outline.
- Avoid words as “correct” at the end of your questions. It is acceptable to as leading questions; don’t terminate your questions with words as “correct” or “believe me.” It’s preferable not to ask questions but make statements and make the witness accept what you say by answering in the affirmative.
- Ask questions that will get a yes answer. The reason you ask leading questions is to get a yes. If you want the witness to agree at every question you ask, then it routinely provokes a yes. How often the judges hear a yes implies the witness has agreed to every point you’ve raised.
- Include only one fact in a question. Avoid compounding the questions with many facts. Keep it simple by including just one fact per question. When the questions are less cumbersome, it becomes clear to your witness and provokes a simple and straight answer. Single fact questions will offer you the opportunity to ask the witness more leading questions that will get a yes answer.
- Avoid arguments with the witness. It is possible that cross-examination falls out of plans. The witness might turn things up against you such that no matter your efforts, you cannot get the “yes”. Most attorneys do pick up a fight or argument at this point. If you find yourself at this spot, it is wise to stop and move to the next question.
- Start it strong and end it strong. While organizing your outline, it is ideal to start with topics that will hit the nail on the head and close with another strong topic. For example, you can start with the witness’s mindset.
- Avoid asking ultimate questions. After you have succeeded in getting the witness to agree to all of your questions, you would wish to land at the ultimate question. Avoid it. You will not always get the answer you want. An example of this is when you ask a physician “do you agree that your failure to treat the patient promptly has violated the ethics of your profession?” with such a question, the witness will not agree with a yes. He will want to argue so to defend himself. If you are so bent at asking the ultimate question, you can do that during deposition.
Possible questions asked during cross-examination
- Please state your name for the record
- Are you the respondent for this case?
- You are working as a technician in an Electrical Distribution Company, is that correct?
- Your boss’ name is Luke Good?
- Must you be working for Luke Good in December?
- Is it true that you have never completed your duties as early as 3:00 pm
- Is it true you have never refused to work overtime that Mr. Luke suggested?
Preparation for Cross-Examination
The defense lawyer must prepare himself adequately for the upcoming cross-examination. He should read the information contained in police reports, seizure memo, FIR, and police statements. He must know everything about the offense of the accused is said to have committed. This preparation will enable him to point out any omission or contradiction that had existed during the examination in chief.
It must be noted that if a defense lawyer does not call out the omission and contradiction observed during the cross-examination period, he will not be permitted to point it out in the future trial.
Cross-examination allows the veracity of a witness to be challenged through questions directed at his status in life, conduct or previous conviction by a competent court.
Cross-examination has rules which must be discussed as an independent course in law schools in India.
It is true that the aspect of cross-examination is a difficult task which requires one to continually groom his skills to match with the challenging legal profession.