Art of Cross Examination in Civil Cases

Cross- Examination in Civil Cases

1. Introduction

1.1 Definition of Cross Examination

Did you know that the skill of cross-examination has always been a determining factor of how good an advocate is? It does not only help in extracting or deducing important facts from a witness but can actually make you win or lose a case. So, first a witness is subjected to examination, i.e. when a witness is brought with an objective of bringing forward the facts relevant to the case before the court. After this, he can be subjected to cross- examination by the opposite party. Section 137 of the Indian Evidence Act, 1872 provides that the examination of a witness by the adverse party shall be called his cross examination. The stage of cross examination comes after the stage of examination in chief which is done by the party who called the witness. Another stage of examination subsequent to cross examination is called as re-examination which is again done by the party who called the witness in order to enquire about the new facts disclosed to the adverse party during cross-examination (Section 138 of the Indian Evidence Act, 1872). It can be put in simple language that, though the examination-in-chief bring forward one side of the case which could be biased or probably partially true, cross examination brings forward the undisclosed facts.

1.2 Scope of Cross Examination

A good cross examination can turn the tables in your favour and increase the chances of winning the case which was slipping out of hands, that’s the power of a cross examination. However having a very wide scope, cross examination is preferred to be limited up to the core issues and relevant facts of the case. As discussed earlier, cross examination is a tool to extract and unearth such facts which either build case in favour of the party through series of questions (constructive approach) or destroy the credibility of the witness produced by the adverse party (destructive approach). It is the facts, circumstances and other record of the case which can help the advocate to consider which approach he shall opt. (Khan, 2020)

2. Importance of Cross Examination in Civil Cases

Order XVIII of the Civil Procedure Code, 1908 that is, Hearing of the Suit and Hearing of Witnesses provides for the provisions related to the order of examination and the right to begin. The witness can be examined-in-chief by way of the affidavit, thereafter he can be cross examined and if the circumstances require and any aspect needs unambiguity then re-examination may be allowed.

 The importance of a cross-examination is vested in the aim it strives for, these aims are:

a) Dig out such facts favourable to your case;

b) To dispute the testimony of the adverse witness;

c) Challenging the credibility of the witness called by adverse party;

d) Catching attention of court towards your perspective/version; and

e) To strengthen your claims.

For the sake of admissibility, cross examination works as an important tool to segregate the truth from the facts/information received during examination-in-chief and eventually contributing in the quest of justice.

3. How to Cross Examine Witnesses

As said earlier, cross examination is an art. Like other arts you can master this after dedicated practice and going through few trials. There are many secrets of cross-examination just like doing fly fishing, but the essence of both lies into listening to your instincts, setting the hook at just the right moment and when you sense it has stuck, let it run setting the hook free and subsequently wear him out and bring it to the shore. Similarly, during cross examination that right moment” may announce itself with a slightest word like “yes”, “no”, “may be” or a simple nod from the witness. When this happens, set the hook, wear him out, reel him in, the verdict is often yours. (Androphy, 2016)

Take cross examination as an opportunity to make your case strong with the help of adverse witness. There are few things to consider and should be practiced for yielding a cross examination of opposing witness in building your case. For example, it is possible to show the witness’s eyesight is poor or line of vision was obstructed. It is possible to show the witness was not present when certain events occurred. (Klein, 2010)

i) Always make individual goals for every witness: Not every tree provides fruits, if you think a witness is not worth adding to your client’s case just avoid cross-examining him. Always take that road which leads to your desired destination, to make it fruitful questions based on prior testimony of the witness and the quality of information a particular witness can add must be kept in mind and goals out of those cross-examination must be set accordingly.

ii) Pre-structure your questionnaire in such a way to make smaller room for witness to escape from: Always carry the answers of the questions you ask to the witness during cross-examination. Ask only leading questions, this way you have control on the witness and don’t let him make room for comfort. Don’t forget the cross-examination is have an object of shaking the credibility of the witness.

iii) Change the questions or make them different (though seeking similar answers) from the other witness already cross-examined: Witnesses are smart too, one can read the whole cross-examination already held before him and come prepared for his cross-examination. To avoid this mould the questions in way which sounds different from the previous ones but seeks similar or nearly same answers which are beneficial for the case.

iv) Know your witness’s prior testimony and other details: come prepared for the instances when you get an unexpected answer from the witness and your control over him starts to bobble, your knowledge about his prior testimony and other details can make you take control again.

v) Never lose your cool, let him loose his: If a witness is not cooperating, never loose cool, getting frustrated or aggressive may lead to hamper your preparedness and may cause harm to your case. Request the Judge to instruct witness to answer the questions.

4. Kinds of Witnesses:

4.1 Hostile Witness

Another nightmare for an advocate is “witnesses turning hostile during cross examination”. We often come across such scenario in criminal cases, for instance let’s take the famous case of Jessica Lal murder case wherein 33 of the 49 witnesses examined by the prosecution since November 2017 have turned hostile in the special CBI court in Mumbai. (Mustafa, 2018). The Indian Evidence Act, 1872, does not define a “hostile”, “adverse” or “unfavourable” witness. A hostile witness is understood to be one who does not tell the truth at the instance of the party calling him. Parties expect witnesses to testify in their favour; some witnesses, however, do not oblige (Mustafa, 2018). In several sensational cases, prosecution has failed after witnesses turned hostile. However, in civil case, when an affidavit of witness is filed it apparently bound him to give such relevant information to the court which will eventually make your case strong. But what if that witness turn hostile (though it is rare in civil cases) during cross examination? section 154 of Indian Evidence Act, 1872 comes into action here and on the discretion of the court the witness called by an advocate can be cross-examined by him. It was held by the Andhra High Court in the case of Mattam Ravi Vs Mattam Raja Yellaiah that, there is no embargo to cross-examine a witness by the party who calls the witness even in civil proceedings.

4.2 Expert Witness:

Expert witness comes under the purview of section 45 of the Indian Evidence Act, 1872. Such witness have their expert opinion on subjects as mentioned under the aforementioned section. These subjects are, foreign law, science, art, identifying handwriting or finger impressions. However, it is pertinent to mention that, the report of the expert witness only has corroborative value and if the said opinion is contrary to the ocular evidence, it is the ocular evidence which will prevail over expert witness’s report, similar was held in the case of State vs Laxman Prasad Rai. The report submitted by an expert does not go in evidence automatically. In State Of Himachal Pradesh vs Jai Lal And Ors , It was held that an expert witness is to be examined as a witness in Court and has to face cross-examination.

4.3 Biased Witness:

A witness may be biased depending on the friendly relation with a party or under an undue influence based on the position which could be employment or familial relationship (casetext, 2019). The domain of matters which give rise to prejudice, interest and bias is virtually endless, this notion was expressed by Supreme Court of the state of Arizona in the case of State v. Cruz (Court, 2021)

4.4 Impeaching credit of witness:

In simpler terms impeaching credit of witness means exposing the real character of the witness in front of the court in order to make court to not trust him.

 Generally speaking, cross examination revolves around this particular principle. The examiner needs to set a favourable narrative in front of the court. Section 155 of the Indian Evidence Act states that, “the credit of a witness may be impeached in the following ways by the adverse party with the consent of the court or by the party who calls him:-

1. By the evidence of persons who testify from their knowledge of witness believe him to be unworthy of credit.

2. By the proof that witness has been bribed or accepted the offer of a bribe or received any other corrupt inducement to give his evidence.

3. By the proof of former statements inconsistent with any part of his evidence which is liable to be contradicted”

5. Issues may arise in cross examination

Cross Examination has never been an easy process, the discussion so far has already inferred that how tricky it can get and how prepared one needs to be for conducting a successful cross examination. A witness may refuse to speak or find it difficult due to public embarrassment which may be caused to him in return of his testimony in the court.

You might have seen in movies, a witness getting bullied by a lawyer during cross examination, such behaviour is based on human nature to respond instinctively to the fellow who is in misery and cannot help himself. Now Lawyers have learned that it doesn’t pay to crowd a victory too close as; else the jury may come to the rescue of the victim. It’s the cool headed, courteous examiner that elicits the information necessary to his cause. Bullying and insulting witnesses is a practice which is now generally disdained. Yet sometimes, with a particular kind of witness, it is the only effective way of cross-examining. (Verma, 2020)

6. Few Basics for a better cross examination

Given below are some DOs and DONTs during cross-examination:

1. Make a list of the statements required from the witness.

2. List out all the inconsistencies. After careful consideration, ascertain the important ones and use them against the witness.

3. Don’t repeat questions already asked in examination-in-chief.

4. Separate the necessary points and create a list of facts and opinions that you plan to challenge.

5. Ask only leading question and don’t let the witness put his explanation.

6. Structure the questions in a form to get favourable answer.

7. Command the witness.

8. Put short questions in plain words in order to get straight answers.

9. Don’t ask question whose answer you don’t know.

10. Listen the answers of the witness and put following questions related to it, it helps in shaking the credibility.

11. Eliminate everything unnecessary.

12. Attract the court and make them believe your perspective by proving that the witness is not reliable.

13. Make sure to put suggestions on the judicial file for using as defence later.

Conclusion

It can be deduced from the above discussion that, cross-examination is a crucial tool in courtroom proceedings in both civil and criminal cases. The only major difference amongst civil and criminal cases is witnesses turning hostile. However, this defect can also be fixed as discussed above. Other than that, the meticulous determination, hard work, common sense and the art of getting out the same information you want to hear are some basic essentials of the cross-examination. Pre-planned structure of questions, complete knowledge of witness’s prior testimony, taking advantage of surroundings, observing the behaviour of the witness are also important tool to prove the incapacity and unreliability of the witness before the court. Always remember that a confused witness may give more useful answers, whereas a knowledgeable witness with a good recollection of facts may be very harmful to your case. It is also pertinent to note that, there are no exhaustive rules for a perfect cross examination, it is the ability, experience and of course the skills as mentioned in preceding heads which are important and needs to be exercised as the circumstances requires.

References

Androphy, D. B. (2016). https://www.bafirm.com/publication/secrets-of-cross-examination/. Retrieved from https://www.bafirm.com: https://www.bafirm.com/publication/secrets-of-cross-examination/

casetext. (2019, July 31). https://casetext.com/rule/connecticut-court-rules/connecticut-code-of-evidence/article-vi-witnesses/section-6-5-evidence-of-bias-prejudice-or-interest?__cf_chl_jschl_tk__=dfc26f332b8a3f51df7e47b9ae6d6d4a860ac6a1-1624730205-0-AVLmjhGEjRJbVyNkRdTHsQ1IMnMrg3. Retrieved from https://casetext.com: https://casetext.com/rule/connecticut-court-rules/connecticut-code-of-evidence/article-vi-witnesses/section-6-5-evidence-of-bias-prejudice-or-interest?__cf_chl_jschl_tk__=dfc26f332b8a3f51df7e47b9ae6d6d4a860ac6a1-1624730205-0-AVLmjhGEjRJbVyNkRdTHsQ1IMnMrg3

Court, A. S. (2021). https://law.justia.com/cases/arizona/supreme-court/2021/cr-17-0567-pc.html. Retrieved from https://law.justia.com: https://law.justia.com/cases/arizona/supreme-court/2021/cr-17-0567-pc.html

Khan, K. V. (2020, May 22). https://www.barandbench.com/columns/the-art-of-cross-examination#:~:text=Though%20the%20scope%20of%20cross,either%20be%20constructive%20or%20destructive. Retrieved from https://www.barandbench.com/: https://www.barandbench.com/columns/the-art-of-cross-examination#:~:text=Though%20the%20scope%20of%20cross,either%20be%20constructive%20or%20destructive.

Klein, G. A. (2010). https://www.kleinandwilson.com/publications/the-art-of-cross-examination/. Retrieved from https://www.kleinandwilson.com: https://www.kleinandwilson.com/publications/the-art-of-cross-examination/

Mustafa, F. (2018, feb 19). https://indianexpress.com/article/explained/from-jessica-lals-case-to-sohrabuddin-sheikhs-why-witness-protection-in-india-remains-vexed-5069143/. Retrieved from https://indianexpress.com: https://indianexpress.com/article/explained/from-jessica-lals-case-to-sohrabuddin-sheikhs-why-witness-protection-in-india-remains-vexed-5069143/

Verma, D. (2020, Aug 1). https://taxguru.in/corporate-law/cross-examination-principles.html. Retrieved from https://taxguru.in/: https://taxguru.in/corporate-law/cross-examination-principles.html