In law, cross-examination is the interrogation of a witness called by one’s opponent. The purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case. Every party in a lawsuit has a right to cross-examine a witness produced by his antagonist, in order to test whether the witness has the knowledge of the things he testifies and if, is found that the witness had the means and ability to ascertain the facts about which he testifies, then his memory, his motives, everything may be scrutinized by the cross-examination. The law of cross examination in India is covered under the Indian Evidence Act.
The art of cross-examination is not something that can be mastered overnight or within a short span of time. However, there are some things you can keep in mind while devising a strategy for the cross-examination. In this article, Team YLCC brings you some important tips on how to conduct a successful cross-examination in court. Read on!
- PREPARE TO PERFECTION
How you approach preparing for your cross-examination set the tone for the entire exercise. Needless to say, cross-examination is one of the most complicated procedures in the legal profession, and there can be no shortcuts in your preparation. Preparing to conduct a gruelling cross-examination usually has two important aspects- framing the questions and conducting a thorough discovery. For the former, you should be making a thorough and exhaustive list of the questions you intend to ask and outline the overall structure accordingly. Of course, there are some questions you may have to improvise in light of the responses you have received but that should not derail the overall trajectory of questions you have prepared beforehand.
Conducting thorough discovery is key for cross-examination. The identification of witnesses and the substance of their potential testimony can be gathered through interrogatories, witness statements and other evidence associated with the case.
- KNOW THE RULES OF EVIDENCE
The Rules of Evidence tell you (a) what you are allowed to cover on cross-examination, and (b)the procedures you must follow. For example, challenging the credibility of a witness is one of the most common areas of cross-examination. Prior inconsistent statements and bias are two ways to challenge the credibility of a witness. In India, the procedure and principle of examination and cross-examination of the witnesses are discussed under the Sections 135-166 of the Indian Evidence Act,1872.
- MAINTAIN EYE CONTACT
Maintaining eye contact is immensely important when you are cross-examining a witness. Maintaining eye contact allows you as a lawyer to evaluate the body language of the witness and gauge his mindset so that you may conduct the cross accordingly.
- DEVELOPING VERBAL STRATEGIES
A key skill that helps a lawyer excel in cross-examination is to develop certain verbal strategies for the exercise. This means that the questions should be brief, concise and indicative questions that require to the point answers without any scope for circumvention by the witness. Try to lead the witness with one fact per question and refrain from asking open-ended questions. Depending on the witness, it maybe “wise to confine yourself to one or two salient points on which you feel confident you can get the witness to contradict himself out of his or her own words while he or she is under oath. It is important to avoid asking redundant questions which serve no real purpose. Also, refrain from asking the same question to emphasise its importance.
- DEAL WITH EVASIVENESS
Not all witnesses are straightforward and cooperative. In fact, witnesses can often be painstakingly evasive, who will try not to directly answer your question with a “yes” or “no”, or will claim not to know what the meaning of “is” is. In such cases, instead of interrupting the witness, a better approach is to rewind and repeat your question. Never rephrase it. Repeat it verbatim. If the evasiveness persists, continue to repeat the question exactly slowing down and pausing between words, if necessary. If the witness continues to act like this, chances are the judge will intervene him or her and compel him or her to answer the question instead of wasting the court’s time.
- WITHSTAND TEMPTATION
It is important that as a lawyer you know when to stop the cross-examination. Usually, stopping is ideal when you get something that serves your purpose and helps your stance. Asking one question too many or pushing your luck sniffing for more is a bad idea to begin with and has the potential to take the entire narrative out of your control.
- CONTROLLING THE NARRATIVE
As a lawyer, it is important to keep in mind that the whole point of conducting a cross-examination is not just to elicit information from the witness or to discredit the witness but to substantiate your own arguments and helping the judge see your narrative in a way that sounds more logically sound. Therefore, it is important to remain in the driver’s seat of the cross the entire team and cleverly direct the witness towards your own ends.
In conclusion, it may be reiterated that for most lawyers, it takes decades of experience to master the art of cross-examination. If you are new to the professional and are practising primarily in criminal law, it is always good to sit in on proceedings and learn from other senior professionals. The guidance from watching live proceedings in court can hardly be replicated anywhere else, e.g. in a book or through a course.
YLCC would like to thank its Content Team for their valuable insights in this article.
