Introduction

The heart and soul of proceeding is cross-examination, as it is a core aspect of the trial process, including criminal and civil. The object of the cross-examination is to elicit truths and detect falsehoods in the testimony of a witness. A cross-examination is conducted to destroy the credibility of the witness or the reliability.

What is cross-examination?

The term ‘examination’ is the process to ask relevant questions regarding the fact in issue to a witness. The stages of ‘examination’ include-

1. Examination in chief,
2. Cross-examination, and
3. Re-examination

The Evidence Act in India prescribes the examination of witnesses in civil and criminal cases.  In civil matters, the plaintiff has the right to begin (Order XVIII, Rule 3 of CPC), the prosecutor or complainant begins matters in a criminal case. The examination of a witness by the party calling him is chief-examination, and by the other party is cross-examination Section 137.

Relevant points regarding cross-examination

• A fair opportunity to cross-examine must be given to the opposite party;
• The adverse party has the right to cross-examine, but the party calling a witness can cross-examine if he turns hostile. A co-defendant can conduct cross-examination if his interest is adverse to that of the defendant.
• Without a chief examination, the cross-examination cannot be conducted.
• If any evidence produced by police on the interrogation of a witness is prejudicial to the accused, cross-examination without examination in chief is permissible.
• The court can question the witness if he is confused during cross-examination.
• Cross-examination is conducted viva voce.
• A fact is non-disputed after cross-examination if the opposite party fails to challenge any statement of fact made by a witness during the examination in chief.
• If the adverse party waives the right to cross-examine, they cannot make any grievances about it.

Purpose to cross-examine

As discussed above, it is the most effective tool in law to prompt the truth. It is required to give credibility to the testimony made by a witness.  The evidence given by the witness is admissible when the opposite party tests the genuineness of the same by cross-examination.

Aim of cross-examination

It aims to discredit the accuracy, credibility, and value of the evidence stated by the witness during a chief examination. It also enables the cross-examining party to run through the material facts given by the witness to discover and reveal any inconsistencies, or to reveal any concealed information and facts which will strengthen the case.

Preparation for cross-examination

Preparing for cross-examination is a very important task and the lawyer must prepare for both fact witnesses and expert witnesses.

Preparing for fact witnesses

From the list of witnesses presented the prosecution may call any witness. For cross-examination, the preparation starts early and continues till the commencement of the trial. Firstly, the statement of the witnesses is collected. Then the party who cross-examines should check the given statement to understand the case of the opposite party. The stage of cross-examination discredits the witness with the inconsistencies in their statements. Finally, a background check of the witness including criminal charges, prior testimonies, benefits from the outcome, etc. makes it strong.

Preparation for expert witnesses

The cross-examination of an expert witness must be done with good preparation, the lawyer must be aware of the concerned areas of science. In this stage, the lawyer needs to figure out the limitations of their field, previous statements inconsistent with current opinion, etc.

Plan wisely for cross-examination

As this is the most reliable method to extract the truth from the witnesses and hence the stage should be used to produce the desired results. The lawyer must plan the stage for cross-examination wisely and conduct it using legal expertise and experience. One cannot predict the answers of the witness at this stage and hence it must be conducted with caution.

Don’t go for open-ended questions

An open-ended question is the one to which a witness cannot answer precisely in yes or no and hence it is advisable to avoid such questions. Here the risk is that the lawyer might not know the answer to the question asked, which leads to giving control to the witness.

Stop at the right question

A good and experienced lawyer knows where he should stop. If evidence given during the chief examination is clear and conclusive, the opposite party need not cross. It is noteworthy that a careless cross-examination would lead to the admission of previously inadmissible evidence.

Use of leading questions

A question suggesting the answers is known as a leading question. Such questions are only permitted at the stage of cross-examination as their object is to elucidate the truth. It is used to compel the witness to answer a yes or no after every question.

Conclusion

The area and scope of cross-examination are very vast. In this article, although we couldn’t cover each aspect exhaustively by we have attempted to cover the elements of a good cross-examination. Constant training and practice is the only way to gain mastery over the art of cross-examination.