The Way of Cross Examination

The way of Cross Examination: Sr.
Adv. Ram Jethmalani, SC
Cross-examination is the most intelligent device evolved by the human civilisation during the experience of centuries. In law, cross-
examination is the interrogation of a witness called by one's opponent. The main purposes of cross-examination are to evoke
favourable facts from the witness, and to charge the credibility of the testifying witness to lessen the weight of unfavourable
testimony. Cross-examination frequently produces critical evidence in trials, especially if a witness contradicts previous testimony.
Mr. Ram Jethmalani one of the famous lawyers in India described the art of cross-examination as the most effective weapon for the
discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness. In a court
trial the search for truth is the ultimate and idealistic end of all litigated matter and this truth is obtained due to the process of cross
examination in the conduct of litigation.
A large number of complaints and cases are filed in civil and criminal courts every day in our country. Mr. Jethmalani says that delay
in justice in India is common due to the rapid growing pendency of cases in courts
In both civil and criminal case examination of witnesses plays an important role in the presentation of the evidence in a court of law
and admissibility of that evidence is an important aspect which has to be decided by the judges only. Each case is looked upon
clearly and it takes a long time to pass the judgment by the court Due to this procedure of examination.
Need of Cross examination

Cross Examination is one of the inevitable feature of our legal system. To understand its aspects take an example If a man reports
to a court that he has seen A shooting B with a revolver on a particular date, in the evening, and thus killed him. Then how will the
court know whether or not to believe the version of the so called eye witness. There are equal chances of the testimony of witness
being true or false. A witness may have several reasons to say falsehood or even to say the truth. A witness may give false
information due to enmity, greed or to implicate somebody with ulterior motives. So, a witness can be believed only if he/she passes
the examination of truth through cross examination.
ie, the witness has to pass an examination before entering the court. This process is done by giving an opportunity to the opposite
party to ask questions which challenges the accuracy of the information given by the witness of the opposite party. Questions about
previous statements and conduct before, during and after the incident happened may be asked. If the witness replies satisfactorily
then the court may declare them as reliable witness, but if they fail during the cross examination, then their testimony is of no
consequence.
Cross examination may differ from case to case and person to person. The age, position, status, expression in court, experience,
qualification and expertise etc, are some subjects of cross examination. As the questions change on the spot according to the
response of the witness it is dynamic in nature.
Cross Examination in Indian Laws

Right to cross examination flows from the principle of Natural Justice that evidence may not be read against a party until the same
has been subjected to cross examination or at least an opportunity is given to cross examine. This right is one of the most powerful
instrumentalities provided to lawyers in the conduct of litigation. The most important purpose of this right is to attempt to destroy the
credibility of the opponents witness.
Chapter X of Evidence Act 1872, deals with examination and cross examination of witnesses before court of law. The relevant
sections are section 136 to Section 166 of the evidence Act. Section 137 tells about examination in chief and cross examination of a
witnesses. According to this Section 137, the examination of witness by the adverse party shall be called his cross
examination. Section 138 provides the Order of Examination, it may be a technical rule but it flows from the essential rules of justice.
It says that there must be first an Examination in Chief, then the opposite party cross examines the witness and if the party calling
the witness so desires, there may be re-examination.
Basics of Examination of a witness in court: the examination of a witness who calls him is called as Examination in chief. After
Examination in chief, the examination of the witness by an opposite party is called Cross examination. The examination of a
witness subsequent to Cross examination is called Re-examination. The Re-examination can be made to explain a matter stated in
Examination in chief and if some new matter is narrated in Re-examination the adverse party can again cross-examine about new
matters.
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The court heard this remark after the dismissal of the accused in the case of Uber Rape case, in which he demanded the re-call of
the witnesses. The accused said that his lawyer was ineligible.
Art of Cross Examination

The art of Cross Examination plays an important role in the trial of each and every case whenever the talent and hard work of the
lawyer is involved to secure justice for their clients. To learn and perfect the art of cross examination a lawyer must observe others,
read trial and deposition trans c r i p ts and by conducting the examination personally. A trial lawyer must adapt well to particular
witnesses and different cases.
Cross examination of witness is the duty of every lawyer towards his client. It is the most efficacious test to discover the truth and to
detect false statements made by the witnesses. Justice can be defeated if cross examination is not done properly. Often, however,
one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination. Thus the
preparation by a lawyer is very important before initiating a Cross-Examination of any witness. The lawyer should clearly bear in
mind those points he or she wishes to make with that witness and frame them beforehand. These points should also be discussed
with those who are assisting at trial. Patience is the virtue in Cross-Examination and judges must give chance to every party to
Cross-Examine the other partys witness.
A lawyer should use leading questions (Section 141) i.e. is that correct? and isnt it a fact etc. at the time of Cross-Examining of
the witness because asking leading questions is perhaps the oldest rule of Cross-Examination.. Leading questions are effective
because they essentially allow the Cross-Examiner to testify and the witness to ratify. The technique advances one of the important
dynamics of the courtroom is control. Asking leading questions allows the Cross-Examiner to be forceful, fearless, knowledgeable
and informative.
The lawyer must also keep in mind while framing the questions that the questions asked during the Cross-Examination must be
relevant to the issue related in the facts of the case. Indecent & scandalous questions can also be asked by the advocate at the time
of Cross-Examination if they relate to the fact in issue. Most importantly questions intended to insult or annoy should be forbidden by
the court even though the question may seem to be proper.
The court which has authoritative power to decide the case can recall the witness for the Cross-Examination based on the facts and
circumstances of that particular case. A summary procedure does not take away the rights of the parties to Cross-Examine as every
party has to be given fair deal in the matter of Cross-Examination.
Conclusion
Certain points to be considered by the lawyers during cross examination. The need for cross examination is to question the
testimony of the witness before the judge, in favour of the client. But the reason why cross examination evolved as the one of the
main part of lawsuit was because justice is based on truth. Cross examination helps the court, judges and jury to reach to the truth.
The case will be presented to the utmost satisfaction of the judge if the attorney does the cross examination with these principles in
mind, and that is how art of cross examination is understood and excellence is attained.
Cross Examination under Indian Legal System

Right to cross examination flows from the principle of Natural
Justice that evidence may not be read against a party until the
same has been subjected to cross examination or at least an
opportunity is given to cross examine. This right is one of the
most powerful instrumentalities provided to lawyers in the
conduct of litigation. The most important purpose of this right is
to attempt to destroy the credibility of the opponents witness.
Chapter X of Evidence Act 1872, deals with examination and
cross examination of witnesses before court of law. The relevant
sections are section 136 to Section 166 of the evidence
Act. Section 137 tells about examination in chief and cross
examination of a witnesses. According to this Section 137, the
examination of witness by the adverse party shall be called his
cross examination. Section 138 provides the Order of
Examination, it may be a technical rule but it flows from the
essential rules of justice. It says that there must be first an
Examination in Chief, then the opposite party cross examines
the witness and if the party calling the witness so desires, there
may be re-examination.
Basics of Examination of a witness in court: the examination
of a witness who calls him is called as Examination in chief.
After Examination in chief, the examination of the witness by an
opposite party is called Cross examination. The examination of
a witness subsequent to Cross examination is called Re-
examination. The Re-examination can be made to explain a
matter stated in Examination in chief and if some new matter is
narrated in Re-examination the adverse party can again cross
examine about new matters.
Art of Cross Examination
The art of Cross Examination plays an important role in the trial
of each and every case whenever the talent and hard work of the
lawyer is involved to secure justice for their clients. To learn and
perfect the art of cross examination a lawyer must observe
others, read trial and deposition transcripts and by conducting
the examination personally. A trial lawyer must adapt well to
particular witnesses and different cases.
As already discussed the main object of cross examination is to
find out whether the testimony is truthful or to detect the
falsehood in it. It is done to either destroy or weaken the force of
evidence given by a witness. Cross examination of witness is the
duty of every lawyer towards his client. It is the most efficacious
test to discover the truth and to detect false statements made by
the witnesses. Justice can be defeated if cross examination is not
done properly.
Often, however, one needs to spend time with the witness to
develop several critical points to counter the impact of the direct
examination. Thus the preparation by a lawyer is very important
before initiating a Cross-Examination of any witness. The
lawyer should clearly bear in mind those points he or she wishes
to make with that witness and frame them beforehand. These
points should also be discussed with those who are assisting at
trial. Patience is the virtue in Cross-Examination and judges
must give chance to every party to Cross-Examine the other
partys witness.
A lawyer should use leading questions (Section 141) i.e. is
that correct? and isnt it a fact etc. at the time of Cross-
Examining of the witness because asking leading questions is
perhaps the oldest rule of Cross-Examination.. Leading
questions are effective because they essentially allow the Cross-
Examiner to testify and the witness to ratify. The technique
advances one of the important dynamics of the courtroom is
control. Asking leading questions allows the Cross-Examiner to
be forceful, fearless, knowledgeable and informative.
The lawyer must also keep in mind while framing the questions
that the questions asked during the Cross-Examination must be
relevant to the issue related in the facts of the case. Indecent &
scandalous questions can also be asked by the advocate at the
time of Cross-Examination if they relate to the fact in issue.
Most importantly questions intended to insult or annoy should
be forbidden by the court even though the question may seem to
be proper.
The court which has authoritative power to decide the case can
recall the witness for the Cross-Examination based on the facts
and circumstances of that particular case. A summary procedure
does not take away the rights of the parties to Cross-Examine as
every party has to be given fair deal in the matter of Cross-
Examination.
Conclusion
Thus we can conclude with certain points to be considered by
lawyers in case of cross examination, and for honing their art of
cross examination. The purpose of cross examination is to
question the testimony of the witness before the judge, in favour
of the client. But the reason why cross examination evolved as
the most important part of litigation was because justice is based
on truth and cross examination helps the court, judges and jury
reach that truth. If the lawyer does the cross examination with
these principles in mind, the case will be presented to the utmost
satisfaction of the judge, client and most importantly oneself,
and that s how art of cross examination is understood and
perfection is achieved.

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The way of Cross Examination: Sr.

Adv. Ram Jethmalani, SC

Need of Cross examination

Cross Examination in Indian Laws

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Art of Cross Examination

Cross Examination under Indian Legal System

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