SOME TECHNIQUES TO CROSS EXAMINE LIKE A PRO

  " He who appears as it were uneasy by reason of the wickedness of his own crimes, shifts from place to place, who suddenly coughs much and likewise draws his breath now and again, who scratches the ground with his feet, who shakes his hands and clothes, the color of whose countenance changes, and whose forehead sweats, whose lip becomes dry, who looks above and about him, and who talks much irrelevantly, in a hurried manner, and without being questioned, should be known as a false witness".

( Ref: Narada Smriti) 

Cross examination is a process mostly about eliciting admissions that suit your theory and dismantle that of your opponent. Since it is safe to assume that most of us in the civilized world are aware to some extent as to what cross examination is through observing it or watching movies of course, let us delve straight into the subject, its techniques and their application in real life.

This post presents certain tips and techniques extracted from various authentic sources, which if effectively applied can be of great benefit to your case. 

EXAMINATION OF WITNESSES  

• Witnesses upon cross-examination may be asked as to any vindictive or revengeful expressions they may have used against the party to the cause, where such expressions would affect the credit or character of the witness. But the answers of the witnesses to irrelevant questions cannot as a general rule, be contradicted; consequently if a party choose to cross examine a witness as to any irrelevant and collateral fact, he is bound by the answer. 

• It is well settled that a witness may be asked upon some former occasion a different  and contradictory account of same subject was given. If the witness gives an affirmative answer, the question affects his credit, of course, whether the subject of the answer be relevant or irrelevant to the issues involved. If however, he answers in the negative and the subject of answer be irrelevant to the issues, the answer is conclusive and the witness cannot be contradicted by other witnesses.

• But, if the subject  of answer be relevant to the issues, then evidence may be given to show that on a former occasion the witness has given a different account of the same subject, and the inquiry is made for purpose of laying a foundation of contradictory statement.

• If a witness is dishonest  and not desirous of telling the truth, it is very important that he should be cross examined rapidly, so that he can have no time to concoct plausible answers between questions.

• In conducting examination of witness who you believe has sworn falsely, the advocate has two courses open to him. He may show his distrust of witnesses by his manner, looks, and tone of voice, or he may examine him as if he thought him an honest witness.

•  When you succeed in making a point and extracting an admission, leave it alone, until your turn to address the judge. If a dishonest witness has inadvertently made an admission injurious to himself, and by your dwelling upon it, becomes aware if the effect, he will endeavor to shuffle out of it, and perhaps succeed in doing so!

• The advocate cross examining a witness should conduct his examination with the testimony of other witnesses in view, and endeavor, if possible, to cure a contradiction by the witness on whose side he has been called. He should also try to make the witness contradict himself, if he believes that he is lying or is mistaken. 

• If, however, the witness is not telling the truth, he should be exposed, or, if he is mistaken his mistake should be explained out of his own mouth, if possible, and if a satisfactory explanation cannot be obtained, the advocate in his arguments may comment with damaging effect of his mistake.

THE OBJECT OF CROSS EXAMINATION IS NOT TO PRODUCE STARTLING EFFECTS, BUT TO ELICIT FACTS, WHICH WILL SUPPORT THE THEORY INTENDED TO PUT FORWARD.

• Few Examples:

         Two false witnesses were examined out of hearing of each other, and on being asked under what sort of tree the criminal act was done, the first said “ a mastic tree” while the other said “ holm tree”. 

“What did you have for dinner?”. To merit of cause the contents of dinner were altogether irrelevant and indifferent. But, if in speaking of  dinner given on an important or recent occasion, six persons, all supposed to be present, give a different bill of fare, the contrariety affords evidence pretty satisfactory though but of circumstantial kind, that at least some of them were not there.”

•  In the examination of witnesses, don’t lose sight of the fact that the interest of the witness in the subject matter of the controversy, if he is a party to the cause, or interested in the settlement of a question which arises in the case, or if he is related by consanguinity or affinity to the party in whose favor he has been called, or is at enmity with the party against whom he is testifying, or the friend or enemy of either of the parties, will be apt to cover his story, and make it favorable or unfavorable according to interest or bias of witness.

• One of the effective technique to discredit a witness is to inquire closely into sources of his knowledge.

• When a witness has given in detail a narrative of a past transaction and you wish to show to court that he was mistaken, you would picture the scene in your own mind, place and persons and accessories (Abbetors). You should then have the witness repeat his narrative, taking care to note its congruity, want of congruity with accompanying circumstances, then you are apt to detect improbabilities and even impossibilities.

• Usually the experienced cross-examiner does not take the statements of honest witnesses for granted, but will investigate them thoroughly, and endeavor to show that they are mistaken to what they think they heard or saw, and will in the mildest and most patient manner, prove his examination of a witness who believes that he is telling the truth, that form the surrounding circumstances and the testimony of other witnesses as well as from the unreasonableness of his story, his story cannot be relied upon.

• Sometimes it is pertinent to impeach the credit of a witness by showing that, from his history, he is not a man likely to swear the truth if it becomes to his interest to swear to the contrary.

•   The best method of examining a witness of crooked character is to take advantage of their enthusiasm in the cause of the party whose side they are to maintain, and quietly and gradually lead them to an extreme position which can neither be fortified nor successfully defended.

• In questioning witnesses upon cross-examination, it is a good plan to ask the most important questions as if they were the most unimportant, and infact, to appear to the witness to want exactly the opposite of what they really want to get out of him.

•  More unfair and more perplexing to the witness, as well as more difficult fro the advocate to detect, are those insidious questions in which the assumption is covertly made.

•   Many a witnesses have been sorely puzzled by being required to answer “yes” or “no” to a question which in form is single, but in fact is double edged. For example, “ you hurt yourself by jumping off the train running at forty miles an hour?” OR “ You paid money to plaintiff’s agent?” A witness who is confronted by an advocate demanding a “yes” or “no” answer, is not in a condition to clearly perceive the unfairness of questions put to him.

• The improbability or impossibility of the statements of witnesses will often furnish an advocate with a clue which, if followed, will lead to valuable results.

• Never cross-examine any more than is absolutely necessary.

  

      Finally to conclude with a quote by Witt: "  I know nothing so embarrassing to counsel as an instruction to ask questions derogatory to character. Suppose counsel has in his brief a sad record of the party to the suit against whom he is retained, or of the principal witness. It by no means follows  that it is just to use it. You have to ask yourself many searching questions. Is the matter at issue so serious as to demand exposure with all its pain to the victim? Does the record really impeach the veracity of the person, as distinct from his morality? Will justice be hindered or advanced by the question? Although the client may rub his hands with delight at the discomfiture of his foe, it is no part of the office of counsel to lend himself to that kind of warfare. The only justification for an interrogatory as to the past history of a witness is, that the answer must tend directly to show that he is not at all likely to tell the truth."                                                                             

Adv. Devavrat Bhangaonkar

Ph: 7709309062

RDS Legal and Associates