This article is written by Srishti Singh, a First-year BA LLB student from Army Institute of Law, Mohali. 

Introduction 

The art of cross examination calls for a sharp intellect, clear mind and excellent communication skills. Cross examination is one skill which every lawyer must perfect to become a master of his trade. It is considered to be the most difficult duty of every lawyer. Moreover, it is the ultimate virtue which helps an advocate turn the winds of judgment to favour his client’s sail. 

The nature of cross examination in prosecution side slightly differs than that of the defendants’ side. This article seeks to explore the same. 

 

Meaning and Definition of Cross examination 

Examination is the simple process of asking witnesses questions regarding the facts in relation to the issues of the case. Examination is mainly of three types, namely – Chief-examination, Reexamination and Cross examination. 

When the witness is called and questioned by the same party, it is called chief examination. 

When the witness is called and questioned by the other party, it is called cross examination.

In Mukesh Singh v. State of Uttar Pradesh [2022 LiveLaw (SC) 826], the Supreme Court reiterated that the chief examination and cross-examination of a witness must be recorded on the same day or the following day. It was declared that there shall be no ground for adjournment in recording the examination-in-chief of the prosecution witness, as the case may be.

When the party subsequent to the one who called him does the examination, it is called reexamination. 

Cross examination has been defined in Section 137 of the Indian Evidence Act, 1872 as, “The examination of a witness by the adverse party shall be called his cross examination.” Therefore, in cross examination, the examination of the witness is only conducted by the adversary and not by the party who called him. The opposite party has every right whatsoever to conduct a cross examination. In order to conduct cross examination, chief-examination must be conducted prior to it, as mentioned in Section 138 of the Indian Evidence Act, 1872. If the adverse party relinquishes its right to conduct cross examination, it cannot air any grievances regarding the same. 

As per Order XVIII of the Civil Procedure Code, 1908 (CPC), the witness can be made to undergo Chief-examination by way of an affidavit. After being examined-in-chief, he can be cross-examined. In case of any ambiguity, the witness may be recalled for a re-examination. Order XVIII Rule 17 of the CPC also empowers the court to clarify any position or doubt, and for the same purpose allows it to recall any witness during any stage of the suit (Valson).

 

Why do we need cross examination in prosecution side? 

The one fact that the legal fraternity accepts universally is that cross examination can make or break a case. History is a testimony when it is said that thorough and well-planned cross examinations have allowed advocates to lead their clients to victory in lawsuits. 

Cross examination is an essential tool which can be used to either construct or destroy the witnesses’ credibility in the court. This can either prove to be beneficial or catastrophic for the client. 

The process of cross examination can immensely benefit the prosecutions’ side for establishing the guilt of the defendant. Moreover, cross examination by the prosecution can also help in highlighting facts which were previously unknown, which could either make or break the defendant’s case.

 

Nature of Cross examination

Cross examination can be of two types –

Constructive Cross examination – Constructive cross examination helps in building up the witnesses’ credibility to support the other parties’ stand. Here, the witness says something which can prove to be useful for the other party. 

Destructive Cross examination – Destructive cross examination helps in breaking down the credibility of the witness such that it proves to be helpful for the party that is questioning him. 

In courts, both of these methods of cross examination are simultaneously employed while questioning the witness as there is no hard and fast rule to decide when and where, which method is to be employed.

 

Principles of Cross examination in Prosecution Side

Cross examination, as established earlier, is an art form which demands precision and presence of mind. There are certain principles of cross examination which are followed by advocates all around the globe, these are – 

• Know your witnesses

In order to effectively cross-examine a witness, an advocate must know all the facts related to the witness on paper. One needs to be well-versed with the witnesses’ testimonies and all other related information depending on the kind of witness that is being questioned. 

There are mainly two types of witnesses who can be called in for any type of examination. These are –

Fact witnesses – They are persons who are summoned to court for giving testimonies as witnesses. They are expected to state only facts and not give any opinions.

Expert witnesses – They are persons who have qualifications and experience in a particular field of study or a special branch of learning. Such persons are skilled in certain areas and so, they are asked to state their opinions in court. 

In State of H.P. v. Jai Lal [(1999) 7 SCC 280], the Supreme Court adjudged that the report submitted by an expert does not go into evidence automatically, and the expert witness has to be cross examined in court. 

The kind of preparation which is required for each type of witness differs on the kind of questions to be asked, the nature of cross examination to be used, when to use leading questions, when to make use of the witnesses’ frustration etc. 

Hostile Witnesses 

The term hostile witness is not defined within an exhaustive definition in any legislation, but is universally understood to be one who lies at the instance of the party calling him, and thus, conceals the truth. A hostile witness is capable of ruining the case on his own. Hostile witnesses have become increasingly common in criminal cases these days, and unfortunately there is nothing an advocate can do to mend the damages done by one.

The Supreme Court in Gura Singh v. State of Rajasthan [AIR 2001 SC 330], attempted to define ‘hostile witness’ and declared that under the common law, a hostile witness is one ‘who is not desirous of telling the truth at the instance of the party calling him.’ In Manu Sharma v. State (NCT of Delhi) [(2010) 6 SCC 1], also known as the Jessica Lal murder case, 33 out of 49 witnesses had turned hostile in the CBI court in Mumbai.

• Organisation of questions in a proper structure

Every lawyer must plan the questions he intends to ask the witnesses during cross examination. He must organize the questions in a logical sequence, such that every subsequent question complements and supports the one asked prior.

• Strategic use of constructive and destructive cross examination

The meaning and aims of constructive and deconstructive cross examination have been discussed earlier. Both the types of cross examination have their own set of advantages and disadvantages, and therefore, must be used strategically as per the goal to be achieved by the prosecutor. 

If the credibility of the witness needs to be broken down, then the method of destructive cross examination must be employed, but if the aim is to build up the witnesses’ credibility to support the prosecution’s stand, then constructive cross examination will be more effective. 

• Frame your questions beforehand

In order to conduct successful cross examination, it is better to frame the questions that the witness is to be asked beforehand. This will allow the advocate to formulate a structure for the questions to suit his agenda. 

Moreover, keeping in mind all the possible scenarios will only help the advocate come up with more and more questions to benefit his client’s cause. It will provide him with better insight to the case which will prove to be beneficial for him in the long run.

• Questions must be short, direct, simple and leading

The questions to be asked during cross examination must be short, direct, and simple, such that they are easily understood by the witness. Cross examination also allows advocates to ask leading questions, i.e., questions which coerce the witness to give a predefined answer.

As mentioned earlier, the prosecutor must make use of constructive or destructive questioning in a strategic manner, so the questions must be formulated to suit the purpose. 

• Conduct during cross examination 

While doing cross examination of a witness, the lawyer must remain calm and composed throughout. He must stick to the planned questions but, also be able to improvise and think on his feet. If the witness gets agitated, it’s the lawyer’s duty to keep his cool and look for any variations in his answers. Therefore, good listening and observational skills are a must for cross examinations. Moreover, it is imperative for the lawyer to follow the basic etiquettes and procedure prescribed by the court for the same.

 

Conclusion 

Cross examination is an art form, and must be practiced like one. It requires a variety of skills to be performed efficiently such as communication skills, listening skills, observational skills etc. In order to conduct efficient cross examination, every lawyer must be well-versed with the etiquettes and procedure to be followed in court. He must be able to think on his feet and turn every answer of the witness into a fact which benefits his client. 

As Louis Nizer rightly said, “In cross examination, as in fishing, nothing is more ungainly than a fisherman pulled into the water by his catch.” Therefore, the art of cross examination is an essential tool for every lawyer for becoming a master of his trade.  

 

References

How to establish the art of cross-examination [Online] / auth. Valson Souradh C. // iPleaders. – 9/3/2023 – https://blog.ipleaders.in/establish-art-cross-examination/#Destroying_the_witnesss_credibility_through_cross-examination.

Aishwarya Says:

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.Aishwarya Says:

The copyright of this Article belongs exclusively to Ms. Aishwarya Sandeep. Reproduction of the same, without permission will amount to Copyright Infringement. Appropriate Legal Action under the Indian Laws will be taken.

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