How To Conduct Cross Examination of Witnesses?

The process of questioning your opponent’s witnesses is essentially known as Cross-Examination. This is the hardest but the most fun part of a trial. Usually, the advocates tend to forget its importance in strengthening their own case whereas they simply use it to attack the witness which is a very wrong approach to go about it. This article discusses the importance of cross-examination of a witness and gives a few tips as to how to get cracking it.

The very first question a lawyer should have in his mind is if the witness is worth cross-examining if he can get something out of it in his favor. If the answer is no, do not cross-examine it. Also, if the lawyer in opposition does not question him, his importance automatically lowers in the eyes of the judge because the lawyer did not consider his testimony hard enough to be challenged.[1] Similarly, the witness presenting only foundational facts should not be cross-examined.

Every lawyer should make sure to have a plan of the said cross-examination. Even a basic written outline proves to be very helpful to the lawyers. It is not very uncommon to see lawyers fumble in the cross-examination part, resulting in loss of his reputation and credibility as a lawyer. A lawyer should also plan the goals of the cross-examination of the witness, i.e. if he wants to discredit the facts provided by the witness or the witness himself, if he wants to get a new fact by the witness or if he wants to establish an ulterior motive for the witness to give false testimony against his client. Moreover, a coherent cross-examination does not move from point one to another and back to the first. A discontinuous and fragmented cross-examination ends up being futile and purposeless.

At times, there are witnesses that are so weak, the lawyer is tempted to question them until they’ve torn apart but even such witnesses should be questioned until they are fruitful to the case. Questioning them further only makes a lawyer look like a bully which does not come across very sensible in front of the judge. Direct examination is a very detailed process that explains and supports the story of the lawyer doing it whereas Cross-Examination is simply used to discredit the facts and testimonies provided by the other lawyer. It is suggested to keep the cross-examination terse by not repeating the facts of the case and directly questioning the witness’s testimony. A productive cross-examination keeps the jury engaged with the very first question and comes to the point quickly, hence the longer a cross-examination is, the less effective it is.

The key to mastering cross-examination is asking yourself if you really know the answer the witness is going to give to such a question and if you are in the slightest state of confusion, do not ask it. Open-ended questions are always a risk because you never know the answer can weaken your own case let alone helping it. The best advice given about cross-examination by a lot of successful lawyers is always asking only leading questions. Avoid asking the question in an affirmative manner or using a double negative, instead use the simplest and the clearest way possible to ask it.

Always try to discredit the witness. There are various approaches used by different lawyers. One way could be destroying the witness’s ability to perceive. If a witness is seemingly honest and has no ax to grind with the defendant being punished, a prudent lawyer should always try to question his ability to perceive the happening of events, i.e., by asking how far was he standing, how poor his eyesight is, was there any obstruction in his line of vision, etc.[2] Another way to discredit the witness is by proving if he has some ulterior motive involved in giving testimony against the lawyer’s client. A basic background check and a little session with his client can always help in telling if the witness has such an ulterior motive. Lastly, one can always question the reliability and truthfulness of the witness, for example, by proving that a witness gave a different testimony at trial and at deposition.

As we have seen, cross-examination is the most fun and interesting part of the trial but winning and losing a case is largely dependent on it. Therefore, a lawyer should always put a lot of thought into it, plan it thoroughly, and just have faith in himself.

References:

[1]Answers Ltd. “Advocacy – Cross-Examination.” Law Teacher, LawTeacher, 17 Apr. 2019, www.lawteacher.net/law-help/advocacy/cross-examination.php.

[2]“THE ART OF CROSS-EXAMINATION – Law Firm Klein & Wilson Attorneys.” Klein & Wilson, www.kleinandwilson.com/publications/the-art-of-cross-examination/.

This article is authored by Kritika Singh Bhati, First-Year, B.A.LL.B (Hons.) student at Rajiv Gandhi National University of Law, Punjab.

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