Thursday, April 3, 2008

CROSS-EXAMINATION

CROSS-EXAMINATION

MEANING OF CROSS-EXAMINATION

In trials, each party calls witnesses. Each party may also question the other's witness(es). When you ask questions of the other party's witness(es), it is called a "cross-examination" and you are allowed considerably more latitude in cross-examination then when you question your own witnesses (called an "examination-in-chief"). For example, you are not allowed to ask leading questions to your own witness whereas you can in cross-examination.

THE PURPOSE OF CROSS-EXAMINATION

Cross-examine is an element that provides an unequalled opportunity to lose it, where as general rule stated that there must be a very good reason for asking each and every question. The way to decide whether a cross examine at all to isolate the reasons for asking each question, and weigh the likely gain against the risk. If there is any substantial risk, the better course is almost always don’t. Where there is any risk at all, be as brief as possible. The reason to challenge the evidence or the witness will have been demonstrated and exposed by the case analysis. The necessity of cross examination will be revealed by testing that reason against the aims of cross examination. The risk must then be weighed against the aim sought and the probable gain to be achieved. Next, the aims of cross examination are not the discovery of new facts or of truth. Neither is it for testing a rope of evidence inch by inch and strand by strand. This can be referred in a book written by Harris entitle of Hints on Advocacy, that says “it should be borne in mind that the objects of cross examination are three, the first positive, and the other two negative. They are to obtain evidence favorable to the client to weaken evidence that has been given against your client and finally if nothing of value which is favorable can be obtained to weaken or destroy the value of the evidence by attacking the credibility of the witness”.

Morris, in the Technique of Litigation describes the objectives of cross examination are as follows:-

a. To elicit facts favorable to your case.
b. To elicit facts that may be used to cross examine other witnesses.
c. To show that adverse evidence is unacceptable
d. To show that the witness himself is not worthy of credence.
e. To put your case to the witness so that it may be known and commented upon

Next, the aims of cross examine also explained by Munkman in Technique of Advocacy, which refers to four specific aspects:-

  1. To destroy the material parts of the evidence in chief
  2. To weaken the evidence where it cannot be destroyed
  3. To elicit new evidence, helpful to the party cross examining
  4. To undermine the witness or shake his credit, as it is commonly expressed by showing that he cannot be trusted to speak the truth, or that he is deposing [however honestly] to matters of which he has no real knowledge.

As for Wrottsley, he stated that “the objects of cross examination are three in number. The first is to elicit something in your favor; the second is to weaken the force of what the witness has said against you; and the third is to show that from his present demeanor or from his past life he is unworthy of belief, and thus weaken or destroy the force of his testimony”. So, ultimately the entire version comes down that as witness being cross examined is concerned, there are two principal aims only that is, extract any benefit you can and destroy, undermine or explain everything else. Second, if you are defending, it is the first opportunity; you have of getting the case for the defence before the tribunal. Apart from that, the main purpose of cross examination also can be stated to elicit material favorable to your case, yet advocates continue to perceive cross examination as exclusively attacking or confrontational. In truth, this technique while less spectacular than attack is more readily achievable and much more frequently successful. The stage of cross examine is also entitled to explain ambiguities and to put evidence in its proper and complete context in much the same way as may be done in re examination. Where if an evidence has been led of a fact, circumstance or event which is incomplete or which may mislead the tribunal of fact, effective cross examine may involve completing the picture favorably to the cross examiner’s case. This is better done by short, courteous propositions without challenging the witness, than by confrontation. In this stage also, any answer given by a witness about collateral facts are said to be final. This means that, although they may be pursued by further questioning and may indeed be disbelieved by the fact finder, they cannot be contradicted by the cross examiner calling other evidence for that purpose. A witness may of course be contradicted on matters relevant to the issue. This also had been quoted by Pollock CB in the case of Attorney General v Hitchcock, where “if the answer of a witness is a matter which you would be allowed on your part to prove in evidence-if it have such a connection with the issue, that you would be allowed to give it in evidence-then it is a matter on which you may contradict him”. Furthermore, there are also general duty or ethical restrictions imposed in conducting cross examination, where it includes a framework that a duty to not cross examine so as to serious misconduct, criminality or fraud, unless the practitioner has both a proper and reasonable basis for the allegation and the suggestion if it goes to a fact in issue will, if accepted by the witness, materially diminish the witness’s credibility.

The general techniques in a cross examine no less than in examination in chief where witnesses are entitled to be treated fairly. This means courtesy and respect, or calm and courteous approach to cross examine. In the stage of cross examine, clarity is an important element, where a witness must understand what you are asking him. This is because if your question is clear and precise, the answer will be recorded in an understandable way and there will be no doubts as to what it was and you will be able to use it unchallenged and unambiguous in your address. Next, there must be element of courtesy, where a quiet manner and remaining in control is the essence of the advocate where the only person who suffers when you lose your self control, and do not show courtesy to the court and to your witness, is the lawyer, itself. Then in this stage also we need the aspect of content, where a lawyer should not ever cross examine unless the cross examination is likely to advance your case. Cross examining on trial on irrelevant matters is more likely to damage your case and is fruitless. Besides that, if you cross examine on trivialities rather than focusing on important defects in the evidence, you risk lowering the tribunal’s index of suspicion about the reliability of the witness, rather than enhancing your prospect of successful impeachment of the witness, and this particularly important when cross examining on prior inconsistent statements.

A cross-examination is an ordered and planned. This means, the procedure of the cross examine must be followed accurately, where it must be started by affirming or repeating the favorable material which was elicited in chief. Indeed, the stage must be begin by asking about non contentious matters to establish a friendly atmosphere with the witness. After that, must proceed to the omitted topics and complete those favorable to your case. At this stage, the cross examination must be constructive; using the witness to complete the picture to the extent it favors your case. This conforms to the general aims of cross examination, that is get what you can and destroy the rest. The next stage is to reveal the apparently hostile evidence of the witness in the way explaining by context or alternative explanations. Before going to either the misleading context or the other explanations, the lawyers need to extract the incontrovertible established facts or the facts confident to be established, later. Then if the witness agrees, the stage will go on compelling agreement to the proper context or alternative connotation. If the witness does not agree, provable facts will be later spoken for themselves. This is the part the stage of cross examine will change its character from constructive to destructive. Finally, there will be challenge to the witness in a destructive cross examination, and the witness will be attacked with all sorts of materials until the tribunal believes that the weakness of the witness are already exposed and not worthy to be believed anymore.

So, this means a cross examination determines to destroy the material parts of the evidence in chief and to weaken the evidence where it cannot be destroyed, or in other words, the stage of cross examination is to obtain evidence favorable to the client to squash the evidence that has been given against the client in a case and finally if nothing of value which is favorable, this stage also can be used to weaken or destroy the value of the evidence, by attacking the credibility of the witness in the case.

At the conclusion or end of the cross-examination of a witness, the party who has called him is permitted to re examine to explain any part of the cross examination which has proved unfavorable. According to Phipson on Evidence, this explanation extends to explaining motives for a prior inconsistent statement and to re examination on inadmissible matter which was introduced in cross examination, but there are conflicting authorities cited. The right to re examine exists only when there has been cross examination, and must be confined to explanation of matters which properly arise from that cross examination, unless the judge gives leave to the contrary. This can be referred to the case of The Queen’s Case (1820) 2 Brod & ER 976, and Section 39 Uniform Evidence Acts, that it should be noted that, at common law the rule does not forbid re examination on parts of a statement necessary to explain other parts elicited in cross examination, so as to put them in proper context, or to elicit the whole statement on the relevant subject, as was said in the Queen’s Case, “not only so much as may explain or qualify the matter introduced by the previous examination, but, even the matter not properly connected with the part introduced upon the previous examination, provided only, that it relate to the subject matter of the suit; because it would not be just to take part of a conversation as evidence against a party, without giving to the party, at the same time, the benefit of the entire residue of what he said on the same occasion”. The rule in The Queen’s Case can make a whole document admissible although it was not admissible in chief. In this way, re examination can become the vehicle for the introduction of new and important evidence. This advantage is attended by a concomitant disadvantage-that re examination is subject to the same rules as examination in chief, including the prohibition on leading questions. The task is made doubly hard because it comes at a time when the witness has been unsettled by cross examination.

So an Effective cross-examination is organized and concise. Jurors are able to follow the direction of the cross-examiner, understanding the important points at the time when they are being made. The witness is kept under control by the examiner through the questions asked and the examiner's treatment of non responsive answers. Finally, the effective cross-examiner takes advantage of those opportunities available in the situation that can decrease the witness's credibility in the eyes of jurors and/or further reveal favorable information about one's case.

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