- 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. - Links on Shivakantjha - Links on Shivakantjha

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