Cross Examination-: Cross examination is a part of the trial process in which the witness called by the one’s opponent is examined.

AN INTRODUCTION TO CROSS-EXAMINATION

Purposes of Cross-Examination

The first decision to make is whether you should even cross-examine a witness.

In order to make that decision, you must know what you want to accomplish by cross examining a witness. Authorities on trial practice, following are the factors which are to be considered-:

1 . Did the witness hurt your case by the testimony given on direct Examination? If so, can you minimize or repair the damage on cross-examination?

2. Can you obtain testimony on cross-examination to help your case?

3 . Can you obtain testimony on cross-examination that will hurt your Adversary’s case?

4. Do you need the witness to establish an evidentiary foundation to admit a document or other exhibit in evidence?

5. Can you discredit the testimony given on direct examination? In other words, can you demonstrate inconsistencies in the testimony given on direct examination? Can you demonstrate that the testimony given on direct examination conflicts with the testimony of other witnesses?2

6. Can you discredit the witness? For example, can you show that the witness is biased? Prejudiced in favor of your adversary and/or against your client? Has a motive to lie? Is personally, financially, or otherwise interested in the outcome of the litigation? Was not in a position to see or hear the event that he/she testified about on direct examination?

7. Can the cross-examination be used to enhance or destroy the credibility of other witnesses?

8. Is the witness so important that you should undertake some sort of crossexamination to fulfill the expectations of the case?

Unless the answer to one or more of these questions is “yes,” you would be well advised not to cross-examine the witness.

you state “No questions.” The judge  may even understand that you have no questions for the witness because the testimony given on direct examination was not important.

Guidelines for the Cross-Examination

Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.

Therefore, you must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.

1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.

2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.

3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”

4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.

5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if

you do not listen to the answers you may not hear damaging testimony

that should be addressed.

6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to

ask a question that allows the witness to repeat his testimony. The odds

are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the

witness knows the testimony, the judge knows the testimony. So just dive

into your cross-examination.

7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.

8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.

9. Your cross-examination should be brief. Remember, you are trying to

“score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.

10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.

11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home to the judge. Instead, your cross-examination should only suggest the point to the judge. Your closing argument will Drive the point home. Remember Irving Younger’s line from his famous lecture on cross-examinations: “Sit down!”

The use of these guidelines will allow you to be in control of the crossexamination. By being in control, you will be in a better position to obtain the testimony to fulfill the purposes of your cross-examination.

Scope of Cross-Examination

The evidence rules provide that “[c]ross-examination should be limited to the subject matter of the direct examination and matters affecting the credibility of the witness. The court may, in the exercise of discretion, permit inquiry into additional matters as if on direct examination.credibility need not be based on evidence adduced at trial. As a result, you will always be entitled to establish, for example, that the witness is biased or prejudiced, has a motive

to lie, is interested in the outcome of the case or has made a prior inconsistent statement. These areas of impeachment will be briefly examined shortly. In addition to the subject matter of the direct examination and matters affecting the credibility of the witness, the cross-examination may also delve into “additional matters”, subject to the court’s discretion. This means that a witness who “opens the door” to additional matters during the cross-examination may be questioned on the matters as if they were discussed during the direct examination. Moreover, as a practical matter, at the “end” of your cross-examination, you may ask the court for permission to examine the witness on matters not covered on direct examination rather than later calling the person back to the stand as your witness. Challenging the Reliability of the Testimony

At this point, you should have an understanding, or at least an appreciation, of the purposes, guidelines and scope of cross-examination. Now we will examine several specific areas of cross-examination, including challenging the reliability of the witness’ testimony and impeaching the credibility of the witness by demonstrating bias, interest, prejudice, motive, and prior inconsistent statements. Assuming that you proceed with cross-examination, you must, if at all possible, challenge the reliability of the witness’ testimony. This area of cross-examination involves examining the witness on what he/she saw, heard, remembers and is able to describe about an event. It seeks to discredit the witness’ testimony. For example, on direct examination a witness may testify about the cause of an accident (what he/she saw or heard). On cross-examination, you should seek to obtain testimony that the accident occurred quickly and unexpectantly, that the witness was not in a good position to see the accident, etc. The cross-examination should plant a seed in the minds of the judge that the accident may not have happened as described by the witness on direct examination. You should also establish that the witness has forgotten details of the event and/or is unable to accurately testify about an event. This will cause the judge to question the accuracy or reliability of the witness’ testimony on direct examination. For example, on direct examination the witness may have testified about the distances between vehicles before an accident. On cross-examination, you should seek to establish that the witness’ testimony about the distances is not accurate or reliable.

Impeachment

Impeachment means discrediting the witness. In other words, attacking the credibility of a witness. The goal is to demonstrate that the witness and/or the witness’ testimony on direct examination should not be believed. There are various methods of impeachment, including bias, interest, motive, prejudice and prior inconsistent

Nitish Banka

Nitish Banka is an advocate practicing in Supreme Court of India and can be reached at [email protected] or 9891549997