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‘An Of Cross-examination : Basle Canons
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Home (/) / Know the Law (/know-the-law) / Art Of Cross-examination : Basic.
Art Of Cross-examination : Basic Canons
SC Staff
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6 May 2020 9:02 AM
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Introdu :
The law of evidence is a system of rules for ascertaining controverted questions of
fact in a judicial investigation of the dispute before the Court.
htps:wwlvelaw.inknow-the lawiat-f-ross-examination-basie-canons-156285 2a 1923, 1010 An ofcros-xaminaon Baie Canons
In India, the Indian Evidence Act, 1872 ("Indian Evidence Act") is the principal
legislation indicating, what is evidence, what are the types of evidence, what are the
facts on which evidence are to be led and what are the facts on which evidence need
not be led, who has the burden to lead the evidence, and last, as pertinent for the
present discussion, how is the veracity of evidence led and claims made by the
parties or witnesses thereof, are to be proved.
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Modes to test the veracity of witnesses:
There are several ways in which the veracity of the averred and collected facts can be
proved to varying degrees. For example, a statements on oath, attaches a degree of
authenticity to the statements of a witness of the parties. Similarly, for the limited
purposes, the brain-mapping test and Narco-analysis test assist in determining the
veracity of the statements of witnesses. However, among them, the cross-
examination is the principal and perennial mode, to equate the veracity of the
averments of a witness in all types of disputes.
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Cross-examination ~ Purpose and its foundational subject-matter:
Under the Indian Evidence Act, section 137, provides for the cross-examination.
Professor Wigmore had once remarked the cross-examination as "the greatest legal
engine ever invented for the discovery of truth’. Its a" powerful searchlight to draw
out the truth and further the cause of justice. Its object inter alia is to impeach the
very credit of the concerned witness and shake his entire testimony’ by "piercing
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 223 zit979, 1010 ‘At Of Grssexaminaion: Basle Canons
through the evidence (https://indiankanoon.org/doc/91613157/?type=print) (see
para. 9 & 10) given by the witness, who has been examined in examination-in-chief’.
Thus, it is essential to briefly appreciate its cardinal principles
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2294812utm_source=internal-artice&utm_medium=also-read)
However, at the outset, itis also pertinent to discuss the material on which generally
the cross-examination of the witnesses is based. Primarily, statements made by a
witness in their Evidence by way of Affidavit or in examination-in-chief, along with
exhibited documents, are the basis for every cross-examination, in all types of cases,
i.e. criminal or civil. In criminal matters, such documents are generally encompassed
in the Charge-sheet and the supplementary report, if any. It includes Arrest Memo,
Seizure Memo, First Information Report, Inquest Report, Post-mortem Report, Site
plans, statements under made under section 161 and 162 of the CrPC, 1973 by such
witnesses during the investigation.
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Proving Her Allegations Of Adultery? Delhi High Court Answers (/high-court/delhi-high-
court/delhi-high-court-privacy-adultery-explained-228427?utm_source=internal-
artice&utm_medium=also-read)
Similarly, in the civil disputes, the contracts entered by the parties, the record of
ownership i.e. Jamabandi, the record of possession, i.e. Khasra Khatoni, the site plan
of the land, communication between the parties, bills, receipts, and alike documents
varyingly form the subject-matter of the cross-examination. Where one of the party is
a legal entity, the documents like, LLP Deed, Memorandum of Association, Articles of
Association, Board Resolutions, Meetings minutes, Balance sheets, and documents
and communications, are often the subject of study before the Courts.
Canons of Cross-examination:
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 323 rigs, 10:0 An ofcros-xaminaon Baie Canons
With this background, we may now proceed to discuss several cardinal principles,
often to be remembered, while preparing for the cross-examination and at the time of
cross-examination of a witness, in today's gait of the litigation in the Indian Courts. It
must be remembered that such principles are always non-exhaustive and often
molded as per the facts and circumstances of the case, the nature of the witness, the
nature of the judicial officer supervising the trial, and also the nature of opposing
counsel. Some of these basic tenets may be drawn as follows:
1. Know the law: It is indisputable to state that good understanding of the
substantive laws, the procedural laws, and the adjective laws is always quint-
essential for effective cross-examination by any lawyer. This is because the
questions of cross-examination are generally based on relevant facts, pertinent
to the case in hand, essential elements of an offence or transaction, and the
procedure governing such offence or transaction
For example it is pertinent to know the essential elements for commission and
recusal from an offence like theft, murder, unlawful assembly, etc. Equally, itis
important to have a bird's eye view of the essential procedural perquisites like what
documents require registration, what documents require stamping, what documents
need to be filed in original, when can a party file their certified copies.
2. Know the facts: A dossier of the case must be thoroughly read and as far as
possible, read in chronological order along with the annexures/exhibits/reports
attached. A conjoint reading of the pleadings or evidential-affidavits and the
documents or evidence attached is always recommended, instead of, reading
the documents dis-jointly. In the exercise, mark out the deficiencies and
contradictions found in the documents or statements, as the case may be.
It would be apt to cite an instance from the cross-examination of Richard Pigott by
Sir Charles Russel before the Parnell Commission. At the very beginning of the
cross-examination, Sir Charles Russel asked the witness to write some words like the
name of the witness, "likelihood", and "proselytism’ on a clean sheet of paper. At last,
carelessly, he again asked to write another word "hesitancy’. Now Sir Charles had an
incriminating letter, written by the witness, wherein, the witness had spelt the word
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 423 rigs, 10:0 An ofcros-xaminaon Baie Canons
“hesitancy’ as "hesitency’. Interestingly, the witness on the given paper again spelt
the word as "hesitency’. Little did anyone realize when asked, but this had a decisive
advantage to Sir Charles later in the trial
3. Sync the laws and facts: Identify the relevant statutory provision(s) and the facts
of the dispute before framing a questionnaire for cross-examination. Read the
provisions and mark out the essential elements categorically, despite having
read the provisions on an earlier occasion(s). This assists an examining lawyer
to prepare the questionnaire which syncs the statutory essentials with the
relevant facts of the case in hand.
4. Prior research on documents: Once the above-suggested exercise is done, the
examining lawyer must examine whether the document(s)/evidence which have
not been produced by the witness are publically accessible i.e. public
documents. If yes, the lawyer must procure such document/evidence and check
whether the information or facts mentioned therein support the cause of the
party, he is representing. If yes, the witness may be examined in terms of the
following example viz.
Awitness has in his examination-in-chief stated that the advance for purchase of a
particular property was issued by his wife from the accounts of the company. She
was director of the company while issuing funds for the purchase.
Question: In your examination-in-chief, at page ___, you state that your wife was the
director of the Company at the relevant point of time. Is that correct?
Answer: Yes.
Question: Whether you have placed any evidence on record before the Court to show
that your wife was director of the company at the relevant time?
Answer: No.
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 523 rigs, 10:0 An ofcros-xaminaon Baie Canons
Now, this fact can be easily verified from the website of the Ministry of Corporate
Affairs through the Company Identification Number of the Company. If the availed
record of the company shows such a person as a director of the company, no more
question should be put on this point. If the record does not show his wife as director,
the witness may be further questioned as follows:
Question: Whether he can produce the document showing him being a director of the
company?
Answer: Yes/No.
The examining lawyer can always produce such a document in the Court as evidence
to discredit this statement. However, the last question is not recommended when the
document affirmatively proves the statement of a witness. The question if asked will
merely remove the deficiencies in the witness's testimony. Instead, the examiner
must leave with an indication of deficiency and not complete the file of the opposite
party. The witness should be asked to produce the documents only for those facts
which you are aware, either do not exist as stated, or, if exist, support your case or at
least raise a doubt to the witness's testimony, or, such a document is necessitated for
further examination and it is not available to the public
5. Whom not to call: It is recommended not to call a person as a witness, to whom,
the opposite party is bound or will call as a witness. This will give such an
examiner an opportunity to cross-examine such a witness.
2
Not the number: It must always be first appreciated whether a witness to be
cross-examined, even avers anything against your client. It must be
remembered that it is not the number of the witnesses produced or the number
of witnesses cross-examined which determine the result of a trial. Every witness
need not be compulsorily crossed.
~
. Never assume facts or make the witness introduce disadvantageous facts: It is
a pertinent principle for an examining lawyer to not assume the existence of a
fact unless such a fact by the witness in his examination-in-chief or evidence by
way of affidavit has been averred so and it is not of very trifle nature.
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 623 zit979, 1010 ‘At Of Grssexaminaion: Basle Canons
Additionally, the witness should not be questioned on a fact which the witness
missed or did not state in his examination-in-chief, and its non-statement was
advantageous to your party. For example, in a case of murder by firing by a
pistol, a witness of the recovery does not state the weapon recovered and/or
does not indicate the use of a particular type of weapon
2
Not a memory test: It must always be remembered that cross-examination is not
a memory test. The figures must not be questioned on, unless, they are
essential to the facts in issue.
For example, it would generally be redundant to question the witness on the amount
advanced as security in an agreement or contract of sale, profit or loss, the value of
the assets, the amount of liability of a company, etc. unless the records present
before the court are disputed
9. Project by formidable inferences: The contractions or the inconsistency in the
testimony of a witness must often be shown by a chain of questions and
formidable inference from the answers to those questions. Generally, a direct
question should not be asked. This is because the witnesses are always dread
of direct self-contradiction
For example, a witness to an incidence of murder may be asked - What is his
profession/occupation? Where were you on __(a particular date) ___? Why was he
at this place on this day? Was he not in his office? What was the time of the day when
he was at the place of incidence? When a party gets a favorable answer in any of the
said questions, which strongly infers that he was not present at the place of
incidence on that date, he should not be asked by a question like he was present at
the place of incidence, were you? This is because a direct question will often be met
with a direct answer and will limit the scope of inquiry. However, a direct question
may put when you have sufficient evidence to discredit the testimony of the witness
[Read with point 16 & 17
1. Don't triumph over trifles: An examining lawyer though must point but should
never triumph over small wins or trifle contradictions. The recommendation
equally applies while pointing out several procedural glitches which are easily
curable in nature.
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 23 rigs, 10:0 An ofcros-xaminaon Baie Canons
2. Switch after a favorable answer: In a situation where you receive a favorable
answer, it is always recommended to quickly pass on other queries. Don't ever
ask the same question again to show the triumph. It often happens that an
inexperienced lawyer repeats the question and the witness molds his answer in
the second time taking away the real effect of the favorable answer.
For example, when a witness state that he was at a particular place on a particular
date which is a date of the incident, it is imprudent to question that, whether on this
date of incidence you were at the place of incidence. He may often state that he was
back by that time or correct his former statement.
2. Expert witness: On occasions where the witness is called as an expert witness,
prior research on the subject and the writings of the witness, if any, is a must.
Additionally, the questions like whether what he states is a mere opinion or a
scientific fact, are there any other possibilities for a cause, what is the source for
his conclusion, what was the number of samples he examined, what does he
specialize in (i.e. cardiologist doctor), how long has he practiced as a
cardiologist, and the alike question may be asked
2
No open question: It is often recommended to not ask a question to an expert
which is wide enough for him to travel in the realm of his specialty of which the
examining lawyer often have little knowledge
B
. Perjured witness: On the occasion where the witness subject to cross-
examination is a prepared witness or perjured witness, the sequence of
questioning becomes essential. Make such witness repeat his statement, flip
him to end, middle, and alike. It is pertinent to note the movement of his eyes,
hands, the pitch of voice, the words used, and expression made. It would be
apposite to quote an interesting episode from The Art of Cross-examination by
Francis Wellman as follows:
“An amusing account is given in the Green Bag for November, 1891, of one of
Jeremiah Mason's cross-examinations of such a witness. “The witness had
previously testified to having heard Mason's client make a certain statement, and it
was upon the evidence of that statement that the adversary's case was based. Mr.
Mason led the witness round to his statement, and again it was repeated verbatim.
Then, without warning, he walked to the stand, and pointing straight at the witness
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 823 7973, 1010 m4 ‘AtOF Cross-examinain : Basie Canons
said, in his high, impassioned voice, Let's see that paper you've got in your waistcoat
pocket! ‘Taken completely by surprise, the witness mechanically drew a paper from
the pocket indicated, and handed it to Mr. Mason. The lawyer slowly read the exact
words of the witness in regard to the statement, and called attention to the fact that
they were in the handwriting of the lawyer on the other side.
"Mr. Mason, how under the sun did you know that paper was there?’ asked a brother
lawyer. ‘Well replied Mr. Mason, |! thought he gave that part of his testimony just as if
he'd heard it, and | noticed every time he repeated it he put his hand to his waistcoat
pocket, and then let it fall again when he got through" [page 17].
5, Rapid questions: If the opposite party has a strong case or prepared witnesses,
select the weakest point and put the questions rapidly at the same pitch of
voice. This often derives the opportunity of the witness to imagine and
manufacture the answer within such time. Such witness may be confronted with
leading questions. Such questions often help in breaking the pre-arranged
version of the party and calls for a spontaneous narrative.
2
. The sequence of examination: The sequence of cross-examination often plays
a critical role in the success of cross-examination and there is no one opinion of
same and it varies with the nature of the fact, witness, and case. For example,
whether such witness is afraid, honest, well-versed, short-tempered etc.? Often,
it is recommended to lay a foundation before an important question is asked,
However, a time a direct question may dismantle the witness at once
nN
Discrediting the testimony: Discrediting the testimony and discrediting a witness
are two different things. It goes without saying that to discredit a witness it is
essential to research the background of the witness. However, a question as to
the character of the witness must not be too remote. A remote throwing of mud
often arouses unconscious sympathy for the witness, particularly, when the
witness is women or any particular category of community which has been
subjected to injustices in past
Additionally, it is important to decide when should a contrary piece of evidence i.
any letter, mail, etc. be introduced before the Court to discredit the testimony of the
witness. There are varying views on it. Several lawyers introduce it at the beginning,
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 923 7973, 1010 m4 ‘AtOF Cross-examinain : Basie Canons
read the statement to witness in parts, and then question on different occasions
which statement is true? On the other hand, some lawyers prefer to first question on
former statements and then introduce the evidence to discredit the testimony of
such witness. This is basically, make the witness lie more to impeach his
creditworthiness by the introduction of strong contrary evidence. If this approach is
followed, the contrary evidence should be duly concealed to avert an opportunity to
such witness to make improvements in his testimony before the introduction of the
discrediting evidence [Read with 16].
8. Don't merely hope favorable answer: It is often recommended to not ask a
question with a mere hope of getting the answer. David Graham, a successful
cross-examiner, once said, "a lawyer should never ask a witness on cross-
examination a question unless in the first place he knew what the answer would
be, or in the second place he didn't care”
2
Maintenance of eye contact: It is essential for the cross-examiner to maintain
eye contact with the witness, all through the cross-examination. The movement
of the hands, eyes, the pitch of the voice, all speak. For example, a prepared
witness often looks at his counsel before answering any question, once his
sequence of the story is broken [Read with Point 14].
10. Clarity and calmness: The examining lawyer must always maintain clarity, self-
control, and his dignity. A lawyer must avoid equivocal questions as they lead to
equivocal answers. The examining lawyer must never show disappointment,
even if, he receives an unfavorable answer from the witness. Instead, he may
occasionally show as if this was the answer he wanted to hear. Additionally, it is
the golden rule of cross-examination that "hold your temper while you lead the
witness to lose his"
. Respectful and submissive words: The lawyer should always be respectful to
the court and the opposing counsel. Never form conclusions and show triumph
before-hand. The examiner may use the words like "/t will be for the Court to.
consider" or "it may be worth thinking my lord" while addressing the Court.
12. Don't object unless cannot be sustained: While your witnesses are being
examined by the opposite counsel, do not object for the mere sake of objection.
Make only genuine objections which can sustain. This unconsciously develops
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 1023 rites, 1010 ‘At Of Grssexaminaion: Basle Canons
an image of your knowledge and demeanor in the mind of the judge and acts as
a bonus point.
13. Never be casual: Never overlook a fact or piece of evidence. It must be
remembered that non-examination of a document or statement amounts to an
admission of such a fact or the document [Read with Point 7].
44, Never judge your case: Never believe your case to be very strong or very weak
while preparing or conducting a cross-examination. It is again apposite to quote
from the Art of Cross-examination, wherein the author, Francis Wellman
observes as follows:
“Knowledge is only the impression of one’s mind and not the fact itself, which may
present itself to many minds in many different aspects. The unconscious sense
impressions sight, sound, or touch would be the same to every human mind; but once
you awaken the mind to consciousness, then the original impression takes on all the
color of motive, past experience, and character of the individual mind that receives it.
The sensation by itself will be always the same. The variance arises when the
sensation is interpreted by the individual and becomes a perception of his own mind.
When a man ona hot day looks at a running stream and sees the delicious coolness,
he is really adding something of himself, which he acquired by his past experience to
the sense impression which his eye gives him’ [page. 43]
Thus, the variance arises due in impression arise due to past experiences of a
witness, attention he had paid to an incident, degree of readiness to look at the
impression in a required way, the relation of the witness with the party and sense to
make the side for which he appears win. Often the party's state varied versions on
different occasions due to lapse of time. Such a witness often states based on
recollection which is often molded due to above-said factors. The witness must be
examined on these factors
5. The basic w's: Last, every witness called for cross-examination should be
examined on contours of who, how, when, what, why, where. The best example
of the use of these words can be easily noticed the successful cross-
examination of Charles J. Guiteau by Mr. John K. Porter where the witness was
examined whether he was insane at the time of the commission of assassin of
hitps wwwlvelaw.inknow- the lawiat-f-ross-examination-basi-canons-156285 28 1923, 1010 An ofcros-xaminaon Baie Canons
President Garfield. The accused-witness averred it as a command of God. The
witness was examined like who asked you to commit the act, did he ask you to
kill, how did he ask, did God ask you to buy a pistol, and likewise.
CONCLUSION:
It has been often said that the lawyer is an actor at the time of cross-examination.
However, today this central role of the cross-examiner appears to wade due to the
huge pendency of litigation in the Indian Courts and the era of litigation having
majorly been shifted to summary proceedings under special legislations. Often it is
seen that the Courts carry their work in a regular way due to heavy pendency of
cases, leaving the cross-examination being done under the supervision of the
opposing counsel and the Court master, with fractional interventions of the Court
when needed. Thus, the demeanor of the witnesses, of the opposite counsel, and
lastly, the arguing counsel often go unnoticed. Given this, the decisions are often
thus, solely based on the questions put and answers made, as noted on the sheet of
papers.
(The author is an Advocate practising at the Supreme Court, Delhi High Court and
other Courts at Delhi. He may be reached at pareekshitbishnoi@gmail.com)
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