Manual of Cross-Examination

The conduct of a case in court is a peculiar art for which many men, however learned in the law, are not fitted; and where a lawyer has but one or even a dozen experiences in court in each year, he can never become a competent trial lawyer. I am not addressing myself to clients, who often assume that, because we are duly qualified as lawyers, we are therefore competent to try their cases; I am speaking in behalf of our courts, against the congestion of the calendars, and the consequent crowding out of weighty commercial litigations. A few lawyers have gone so far as to refuse direct communication with clients excepting as they come represented by their own attorneys. It is pleasing to note that some of our leading advocates who, having been called away from large and active law practice to enter the government service, have expressed their intention, when they resume the practice of the law, to refuse all cases where clients are not already represented by competent attorneys, recognizing, at least in their own practice, the English distinction between the barrister and solicitor. We are thus beginning to appreciate in this country what the English courts have so long recognized: that the only way to insure speedy and intelligently conducted litigations is to inaugurate a custom of confining court practice to a comparatively limited number of trained trial lawyers. [The Art of Cross-Examination-Francis H. Wellman 1904 ]

Law of India

Application Level : Civil and Criminal

Remembrance

Cross examination is not Job interview
Cross examination is not Police Interrogation (General or Custodial)
Cross Examination is not asking another question by defence counsel

Our questions for consideration are: What is cross-examination? What is the purpose of cross-examination and who has the right of cross-examination?

The law requires the parties to produce, before the Court, the best available evidence, the fact remains that even in a criminal trial, prosecution as well as defence has the right to choose their witness or witnesses and also as to what evidence they would adduce. Nonetheless, they are bound to adduce the best available evidence. The Court has no power to compel either the prosecution or the defence to examine any particular witness. This embargo placed on the powers of the Court, i.e., the limitation of not directing either the prosecution or the defence to examine any particular witness as their witness, is sought to be balanced by the Legislature with the help of the provisions contained in Section 311 inasmuch as the Legislature has, with the help of Section 311, empowered the Criminal Court to call, recall or re-examine any person as witness. The only rider, which Section 311 attaches to the exercise of this power, is that a Criminal Court cannot call, recall or re-examine any person, as witness, unless examination of such a person is, in the opinion of the Court, essential for a just decision of the case. It, however, the Court is of the view that evidence of a particular witness is necessary for reaching a just decision of the case, the Court, either on its own or on the application of any of the parties concerned, call, re-call or re-examine any witness as long as it does not cause prejudice to any of the parties concerned or does not give an undue advantage to any of such parties.

1. What is cross-examination?

Examination of a witness by the adverse party is called the cross-examination. It is the most effective of all the means for extracting truth and exposing falsehood. It is a greatest legal engine ever invented for discovery of truth. It is the only mode to test the veracity of the statements given by a witness in examination-in-chief relating to an occurrence, which took place with him or in his presence. It is not an empty formality but a very valuable right, and a weapon in the armory of the adverse party to destroy the case of the opposite party and to substantiate his defence.

The basic concept is fair play in action. It must depend upon the particular lis, if there be any, between the parties. If the credibility of a person who has testified or given some information is in doubt, or if the version or the statement of the person who has testified is in dispute, right of cross-examination must inevitably form part of fair play in action. Where there is no lis regarding the facts there is no requirement of cross-examination to be fulfilled to justify fair play action.

2. What is the purpose of cross-examination?

The object of cross-examination is two-fold. Firstly, to weaken, qualify or destroy the case of the opponent. To impeach the accuracy, credibility and general value of the evidence given in chief, to sift the facts already stated by the witness, to detect and expose discrepancies or to elicit suppressed facts which will support the case of cross-examining party. Secondly, to establish the party’s own case by means of his opponents witnesses. It may be either by way of admissions or by way of eliciting facts which would prove the case of the cross examining party. It is like a double edged sword. Properly used it may destroy the opponents case and support the cross examining party. Otherwise it may destroy the case of the cross examining party. It is an art which requires great skill. It can be acquired only by training and experience.

No evidence should be received against one who had no opportunity of testing it by cross-examination; as it would be unjust and unsafe not to allow a co-accused or co-defendant to cross-examine a witness called by one whose case was adverse to him, or who has given evidence against. If there is no conflict of interest, such an opportunity need not be given. Therefore, the condition precedent for giving an opportunity to a defendant/respondent to cross-examine a co-respondent or a defendant is either from the pleadings of the parties or in the evidence, there should exist conflict of the interest between them. Once it is demonstrated that their interest is not common and there is a conflict of interest and evidence has been adduced, affecting the interest of the co-defendant/co-respondent, then before the Court could act on that evidence, the person against whom the evidence is given should have an opportunity to cross-examine the said witness, so that ultimately truth emerges on the basis of which the Court can act.

3. Who has the right to cross-examine?

The right of cross-examination is that of the adverse party. It is left to his discretion. He cannot be compelled to cross-examine. If he so desires, he can exercise that right. If a party do not hold the position of an adverse party, he has no right of cross-examination. The condition precedent for giving an opportunity to cross-examine an opposite party is that, either from the pleading of the parties or in the evidence, there should exist conflict of interest between the parties. It should be shown that the evidence on record adversely affect his interest and that his interest is adverse to the interest of the party who has given evidence and therefore, he is in the position of an adverse party. Once it is demonstrated that the interest is common, there is no conflict of interest, and no evidence is adduced affecting the interest of the defendant, then there is no question of giving an opportunity to such a party to cross-examine the opposite party. The main object of such cross-examination is to demolish the case of the opposite party and if possible to substantiate the defence. If there is no conflict of interest, there is no claim, there is no defence, and there is nothing to be demolished in the case set up, there is no adverse party and the opposite party has no right to cross-examine. Only when the opposite party stands in the shoes of an adverse party, he has a right of cross-examination.

5. Civil Trial

Civil trials are not open-ended affairs, Civil procedure has been devised in such a way that trials proceed step-by-step and once stage of evidence had been crossed, Courts are naturally extremely reluctant to put the clock back by allowing production of evidence not previously known or which could not be produced despite due diligence. Courts require that party should satisfy the Court that he had exercised due diligence and inspite of this, evidence had not come to his knowledge, therefore, could not be produced when he was leading evidence.

4. Recross- examination

From a careful reading of Section 138, it clearly follows that the Evidence Act has not used the expression re-cross-examination. Thus, re-cross-examination is essentially nothing, but further cross-examination, which obviously follows reexamination. In other words, a witness can be re-examined, in order to explain matters referred to in the cross-examination and if any new matter is, by permission of the Court, introduced in the re-examination, the adverse party may further cross-examine upon that matter. The re-cross-examination, therefore, means, as indicated hereinbefore, further cross-examination of a witness, who has been recalled and re-examined.

5. Closure of Evidence

Hasty and unwarranted closure of evidence of a party may have serious consequences for the affected party in as much as it would deprive the party a fair opportunity to prove his case. There is no gainsaying that any final judgment or decree which is not founded on a fair trial in which a reasonable opportunity is given to both the parties to prove their cases would be unsustainable in the eye of law. Just as a judgment and decree delivered without affording to the parties an opportunity to lead evidence is bad so also a judgment and decree delivered by prematurely closing the evidence of the party concerned would be legally infirm. In an appeal against any such final judgment and decree, Therefore, the fairness of the procedure followed by the trial court or matters relating to fairness of the opportunity given to a party would be open to examination by the appellate court. So also if the interim orders passed have merged in the final judgment and decree a challenge to the final judgment and decree in an appeal must necessarily include a challenge to the correctness of such orders that have so merged.

There is no specific provision in the Code enabling the parties to re- open the evidence for the purpose of further examination-in-chief or cross- examination. Section 151 of the Code provides that nothing in the Code shall be deemed to limit or otherwise affect the inherent powers of the Code to make such orders as may be necessary for the ends of justice or to prevent the abuse of the process of the court. In the absence of any provision providing for re-opening of evidence or recall of any witness for further examination or cross-examination, for purposes other than securing clarification required by the court, the inherent power under section 151 of the Code, subject to its limitations, can be invoked in appropriate cases to re- open the evidence and/or recall witnesses for further examination. This inherent power of the court is not affected by the express power conferred upon the court under Order 18 Rule 17 of the Code to recall any witness to enable the court to put such question to elicit any clarifications.

6. Practice and Procedure

Order 18 Rule 17 of the Code enables the court, at any stage of a suit, to recall any witness who has been examined (subject to the law of evidence for the time being in force) and put such questions to him as it thinks fit. The power to recall any witness under Order 18 Rule 17 can be exercised by the court either on its own motion or on an application filed by any of the parties to the suit requesting the court to exercise the said power. The power is discretionary and should be used sparingly in appropriate cases to enable the court to clarify any doubts it may have in regard to the evidence led by the parties. The said power is not intended to be used to fill up omissions in the evidence of a witness who has already been examined. [Vide Vadiraj Naggappa Vernekar v. Sharadchandra Prabhakar Gogate – 2009 (4) SCC 410]. Order 18 Rule 17 of the Code is not a provision intended to enable the parties to recall any witnesses for their further examination-in- chief or cross-examination or to place additional material or evidence which could not be produced when the evidence was being recorded. Order 18 Rule 17 is primarily a provision enabling the court to clarify any issue or doubt, by recalling any witness either suo moto, or at the request of any party, so that the court itself can put questions and elicit answers. Once a witness is recalled for purposes of such clarification, it may, of course, permit the parties to assist it by putting some questions.

There is no short cut, no royal road to proficiency, in the art of advocacy. It is experience, and one might almost say experience alone, that brings success. I am not speaking of that small minority of men in all walks of life who have been touched by the magic wand of genius, but of men of average endowments and even special aptitude for the calling of advocacy; with them it is a race of experience. The experienced advocate can look back upon those less advanced in years or experience, and rest content in the thought that they are just so many cases behind him; that if he keeps on, with equal opportunities in court, they can never overtake him. Some day the public will recognize this fact.

Francis H. Wellman

The Art of Cross-Examination

Personal magnetism is, perhaps, the most important of all the attributes of a good trial lawyer. Those who possess it never fully realize it themselves and only partially, perhaps, when under the influence of a large audience. There is nothing like an audience as a stimulant to every faculty. The cross-examiner’s questions seem to become vitalized with his knowledge of the topic of inquiry and his own shrewd discernment of the situation of the witness and the relation which the witness’s interest and feelings bear to the topic – Francis H. Wellman

Object-oriented Cross-Examination
Understanding Strong and weak point of a particular case
Overcoming weakness of the case through Cross-Examination
Reading the mind of the witness
An examination is not inquiry or interrogation
How much Examination is needed
Not to put question within the question
Not to club several questions within a question
keep an eye on the recording of evidence by the Court
The language of the Cross-Examination

A good advocate should be a good actor. The most cautious cross-examiner will often elicit a damaging answer. Now is the time for the greatest self-control. The very intonations of voice and the expression of face of the cross-examiner can be made to produce a marked effect upon the Judge and enable him to appreciate fully a point they might otherwise lose altogether – Francis H. Wellman

Cross-Examination

1. What is cross-examination
2.    Statutory Provisions
3.    Examination of Witnesses in Civil Cases
4.    Order of Examination of Witnesses
5.    Examination-In-Chief
6.    Privilege of Certain Witnesses
7.    Principles of Cross-Examination in civil and criminal cases
8.    Statements Provable Only to Corroborate or Contradict Evidence Tendered
9.    Statements Admissible Either to Corroborate of Contradict
10. Some Non-Statutory Materials for Corroborating or Contradicting
11. Contradicting Under S. 155(3) of the Evidence Act
12. Contradicting Under S. 145 of the Evidence Act
13. Cross-Examination of Person Called to Produce a Document
14. Witness to Character
15. Hearsay Evidence
16. Leading Questions
17. Cross-Examination as to Previous Statements in Writing
18. Questions Permissible Under Sec. 146 of the Indian Evidence Act, 1872
19. When Witness to be Compelled to Answer
20. Asking incriminating Questions
21. Questions not to be asked without Reasonable Grounds
22. Indecent and Scandalous Questions shall not to be asked
23. Exclusion of Evidence to Contradict Answers Regarding Veracity
24. Hostile Witness
25. Impeaching Credit of a Witness
26. Re-Examination of Witness
27. Questions Tending to Corroborate Relevant Fact
28. Refreshing Memory
29. Testimony to Facts Stated in Documents u/s Sec. 159 of the Evidence Act,1872
30. Right of Adverse Party as to Writing Used Under Secs. 159 & 160 of the Indian Evidence Act,1872
31. Production of Documents
32. Powers of the Judge to discover Truth
33. Different Types of Cross-Examination
34. Severe Cross-Examination
35. Dangerous Cross-Examination
36. Gentle Cross-Examination
37. Silent Cross-Examination
38. Suggestive Cross-Examination
39. Over-Cross Examination
40. Bold Cross-Examination
41. Quick Cross-Examination
42. Random Cross-Examination
43. Quibbling Cross-Examination
44. Prolonged Cross-Examination
45. Dramatic Cross-Examination
46. Humorous Cross-Examination
47. Classes of Witnesses and as to the mode of Cross-Examining them
48. Truthful Witness
49. Hostile and Treacherous Witness
50. Mistaken Witness
51. Biased Witness
52. Exaggerating Witness
53. Timid Witness
54. Excited Witness
55. Tutored Witness
56. Hypnotized Witness
57. Conscientious Witness
58. Pious Witness (Priests and Clergymen)
59. Clever Witness
60. Expert as Witness
61. Court Witness
62. Impertinent Witness
63. Flippant Witness
64. Dogged Witness
65. Awkward Witness
66. Convict Witness
67. Hypocrite Witness
68. Shifty Witness
69. Unwilling Witness
70. Unintelligent Witness
71. Confused Witness
72. Ignorant or Illiterate Witness
73. Stupid Witnesses
74. Forger Witness
75. Humorous Witness
76. Drunken Witness
77. Insane Witness
78. Bankrupt as a Witness
79. Police Witness
80. Spies and Detectives as Witnesses
81. Child Witness
82. Aged Witness
83. Woman Witness
84. Professional or Pedantic Witness
85. Guilty Witness
86. Accomplice Evidence

Witnesses of a low grade of intelligence, when they testify falsely, usually display it in various ways: in the voice, in a certain vacant expression of the eyes, in a nervous twisting about in the witness chair, in an apparent effort to recall to mind the exact wording of their story, and especially in the use of language not suited to their station in life. On the other hand, there is something about the manner of an honest but ignorant witness that makes it at once manifest to an experienced lawyer that he is narrating only the things that he has actually seen and heard. The expression of the face changes with the narrative as he recalls the scene to his mind; he looks the examiner full in the face; his eye brightens as he recalls to mind the various incidents; he uses gestures natural to a man in his station of life, and suits them to the part of the story he is narrating, and he tells his tale in his own accustomed language….Francis H. Wellman

Exhibition of Documents at the time of Cross-examination and other issues

Cross Examination in Civil Trials

Cross Examination in Criminal Trials

The infinite variety of types of witnesses one meets with in court makes it impossible to lay down any set rules applicable to all cases. One seldom comes in contact with a witness who is in all respects like any one he has ever examined before; it is this that constitutes the fascination of the art. The particular method you use in any given case depends upon the degree of importance you attach to the testimony given by the witness, even if it is false. It may be that you have on your own side so many witnesses who will contradict the testimony, that it is not worth while to hazard the risks you will necessarily run by undertaking an elaborate cross-examination-Francis H. Wellman

Cross examination of a Police Investigator
Cross examination of a Police Expert
Cross examination of a Forensic Expert
Cross examination of Experts in general
Cross examination of Complainant and his/her relatives
Cross examination of independent witness
Cross examination of minor witness
Cross examination of aged witness
Cross examination of sick witness
Cross examination of political personalities
Cross examination of independent witness
Cross examination of an hostile witness
Cross examination of a Judicial officer

Example of Cross Examination of a Medical Expert

Counsel. “Was it a case of death from morphine poisoning?”
Witness. “Yes, sir.”
Counsel. “Was there an autopsy?”
Witness. “No, sir.”
Counsel. “How did you know it was a death from morphine, if, as you said before, such symptoms cannot be
distinguished?”
Witness. “I found out from a druggist that the woman had taken seven grains of morphine.”
Counsel. “You made no diagnosis at all until you heard from the druggist?”
Witness. “I began to give artificial respiration.”
Counsel. “But that is just what you would do in a case of morphine poisoning?”
Witness (hesitating). “Yes, sir. I made, of course, a working diagnosis.”
Counsel. “Do you remember the case you had before that?”
Witness. “I remember another case.”
Counsel. “When was that?”
Witness. “It was a still longer time ago. I don’t know the date,”
Counsel. “How many years ago, on your oath?”
Witness. “Fifteen, probably.”
Counsel. “Any others?”
Witness. “Yes, one other.”
Counsel. “When?”
Witness. “Twenty years ago.”
Counsel. “Are these three cases all you can remember in your experience?”
Witness. “Yes, sir.”
Counsel (chancing it). “Were more than one of them deaths from morphine?”
Witness. “No, sir, only one.”
Counsel (looking at the judge somewhat triumphantly). “Then it all comes down to this: you have had the experience of one case of morphine poisoning in the last twenty years?”
Witness (in a low voice). “Yes, sir, one that I can remember.”

Counsel (excitedly). “And are you willing to come here from Delhi, and state that the kolkata doctors who have
already testified against you, and who swore they had had seventy-five similar cases in their own practice, are mistaken in their diagnoses and conclusions?”
Witness (embarrassed and in a low tone). “Yes, sir, I am.”