Shivakantjha.org - Art of Cross-Examination
Art of Cross-Examination
(Late Shri Nageshwar Prasad, Sr. Advocate of Patna High Court)
[ART of Cross-Examination by late Nageshwar
Prasad, Sr Advocate and former Judge of Patna High Court edited by Shiva Kant
Jha. This is the text of his speech he delivered on 6 June 1969 in a small gathering
of officers at the Central Revenue Building, Patna. It was taken in shorthand
by Shri Muneshwar Singh, Sr. Stenographer. I could find this text hibernating
in the heap of my old papers. I am putting this on this website, treating it
as this great lawyer’s blessing for me, and also for the benefit of the
young lawyers.]
Before I speak anything on the subject I shall make one request
to you on account of may age and recent illness, and that is to permit me to
speak sitting. I hope I have your consent to that.
2. You have invited me to give a talk. I won’t call it
a lecture, and I would not even call it an address because I must confess I
have not come prepared to speak on the subject. I have merely come to you to
say something on the art of cross- examination from my experience in life and
also from what one gathers from one’s contacts in the profession. I do
not claim that I shall be able to give a very thorough or exhaustive talk on
the subject. It is bound to be faulty and scrappy, it is bound to be imperfect
because it is not the result of a deep preparation but it is the gathering of
loose memories and, you know, in the old age memory goes weak, and that in the
first causality of old age.
3. Cross- examination, to my mind, is a very fascinating and
interesting subject. It is not a science. You may call it an art. A science
is that in which human knowledge has been reduced to a state of law, rules,
principles, theories and maxims. I am afraid, in cross-examination one will
not be able to stick to theories or set rules or even laws guiding the pursuits
of cross-examination. It is more or less some sort of a skill, some sort of
an art. There are variations in approach by cross-examiners. Some artists excel
in rural painting, and some in village scenes, human faces and others in counteracting
beautiful buildings. In cross-examination also variation is bound to occur and
it depends upon the man who cross-examines. No set of rules or formula is possible
to be laid down for the purpose of cross-examination just as you cannot be a
swimmer by reading a book. By reading books you cannot be a very good cross-examiner.
You have to practise. Those latent qualities are in art which you display. By
experience, by your knowledge of human psychology and by you contacts in the
world you can be a good cross-examiner. You have to be a good psychologist.
You must be able to understand human nature. The mode of cross-examining a timid
person will not be the same as to a veteran person. You should be able to understand
human nature. You should be able to understand who will react in what way and
what you want him to speak out. You may call it that cross-examination is both
suggestive and objective way of finding out truth. For the purpose of doing
justice it became absolutely necessary to cross-examination persons to find
out the truth. For doing justice judiciary is considered to be a very important
branch of human civilization. In order to bring people from jungle to society
judiciary had to be established. To an individual or even a leader or a king,
therefore, justice has been one of the very important functions of our civilized
life from the very beginning; and as things have not developed to perfection
and they have to come through stages the pursuit of justice naturally has been
rudimentary. In finding out truth in some stage of human society people believed
that god helped those who spoke the truth. That imagination was of a very crude
type which was originally adopted in some country.
4. Trial by ordeal : Justice will go in his favour end punishment
will be given by God by burning his finger. Later it was found that innocent
persons were also punished. Therefore that practice disappeared and some other
things had to be devolved. One method was to contact the two contestants one
facing each other end the judge had to ask them to quarrel. One man will say
you certainly did so ; you take oath before the Ganges. The judge will go on
marking and come to a conclusion. In those day there were no Vakils to do cross-examination.
The accused person was allowed to enage some clever relation or some other person
to defend. That person used to do cross-examination in a shrewd say and the
judge used to form his opinion and decided cases thereby. Cross-examination
is necessary to help a judge in discovering the truth. Every body cannot do
cross-examination. A party, howsoever truthful and innocent may be, for want
of legal knowledge or his mental deficiency is incapable of doing cross-examination.
The practice, therefore, arose of employing skilled persons. In England this
work was first taken up by missionaries. This was considered to be an act of
benevolence. For some centuries it was the missionary who helped in exposing
truth before the Judge.
5. You have to apply the art of cross-examination for extracting
truth from the adversary. The plaintiff and defendant both have cases and the
judge knows what the case of each party is. In civil cases there is not much
scope for cross-examination as judgment is mostly based on records. In criminal
cases there is scope. Onus is on the prosecution to cross-examine. Therefore
in criminal cases cross-examination, I should say, is the most important part
of a professional skill which a lawyer has to display if he wishes to give the
maximum advantages to his client. As you must have followed my submission on
this point, you must have found that the object of cross-examination is both
destructive and constructive. You have to judge which will go the benefit of
your client and convince the judge that the prosecution’s version is not
correct. Therefore cross-examination his two sides-destructive and constructive.
You have to demolish the picture which has been presented before the Court.
With some witnesses your cross examination may be of constructive type. You
have to plead of a private defense in a murder case and you have injury on you
side. A good cross-examiner has to train himself both for the purpose of construction
or demolition. Now naturally one will ask how to demolish the case of a hardened
lawyer. There lies your skill and their lies your art. It will come to you by
experience; it will come to you by studies of human nature. Just as tow wrestlers
meet in a wrestling arena so you have to meet. Before actual wrestling they
try to measure the strength of each other. Similar is the case in cross-examination
; you have to meet like a wrestler. The object of cross-examination is to convince
the Judge or the Jury. If you find a weak spot in his mental condition, well,
you are able to discover that. A witness speaking falsehood is bound to support
one falsehood by other falsehood. The witness has to be very carefully handled.
In the case of a very crafty witness find out the weak spot in his evidence,
and make that the central focus. In the case of a simple witness the method
should be different. As a matter of fact, I am more afraid a simpleton than
in the case of a crafty witness. You have to be very careful in the case of
a simpleton witness. You have to find out if the witness is of hardened type,
novice in the court or a tutored one. In the interest of your own case the lawyer
is also enjoined by common sense and reasons to watch your witness. Careful
watching brings you unexpected materials in your favour.
The third requisite is an art of camouflage -- art of secreting
your real intention. Art of camouflages is very material – and strategic
to employ in cross-examination. Your real intention may not be known to the
party while cross-examining. Art of hiding your intention is a very successful
method in cross-examination. The demeanor of the cross-examiner is also very
important just as the demeanor of the witness. The art of concealment of one’s
emotions is very important for a cross-examiner. Your have to keep in mind the
following to weaken the case of the adversary while cross-examining:-
(1) Are the witnesses, whom the opposite party is brining,
independent or impartial, or have they got any bias against the accused. You
should gather this information from your client. Partiality has to be challenged.
Relationship, if any, has to be connected. You have to question his independence.
To an independent witness the cross examination will be of a different type.
Powers of memory, imagination, entertaining beliefs of others, etc., have
to be kept in mind while cross-examining .
(2) Whether your story is inconsistent with what you stated
before. Inconsistency is another test of finding out or sifting truth from
falsehood. You have first to study and discover if in a previous statement
he is inconsistent.
(3) Test of probability : try to make the case improbable.
This is the best test. Build up your case on the line of improbability.
Don’t think that the above three lines are the exhaustive
lines of cross-examination. No general thing can be said about that. Different
types of cross-examination have to be done. A lawyer has to so train himself
from the very beginning that to a Court he should be jack of all trades, though
he is master of none. You should pretend to know everything. In order to be
able to handle the case for cross-examination you must have studied the case
in all ways. You must apply yourself heart and soul to the subject, and then
only you can be of help to your client.
You have to be very cautious in cross-examining a child and
woman. A child witness can be hammered in a very shrewd way. You must be varied
in your modes of cross-examination. A cross-examination must not ask too much.
You must know what not be ask. You must know where to stop asking because putting
too many questions spoils the case at times.
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