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Published: Fri, 02 Feb 2018
CROSS EXAMINATION: GOVERNING PRNCIPLES
Principles governing the operation of cross examination may be bifurcated in two heads viz. statutory and non-statutory. An endeavor has been made to cover the significant facets of these principles as a detailed narrative would be too voluminous to be covered herein.
Qanoon-e- Shahdat Order 1984 embodies in it articles 130-161 (Ss. 135-165 Indian Evidence Act 1872) which ordain provisions envisioning statutory principles concerning the examination of witnesses. Out of the afore referred provisions only those would be discussed herein below which have a material bearing on the operation of cross examination.
Article 132/ S. 137:-
Article 132/ S. 137 provides nomenclature of the processes which are involved in examination of witnesses. It provides that examination of a witness by a party who calls him as a witness shall be called as his examination-in-chief and the examination of a witness the adverse party shall be called his cross examination. The same provision further elucidates that the examination of the witness subsequent to the cross examination is called re-examination.
Article 133/ S. 138:-
Article 133/ S. 138 provides the order in which the examination of witnesses is to be conducted. According to the provisions, a witness is first to be examined-in-chief then cross examined and then to be re-examined if necessary.
Article 133/ S. 138 further provides that examination in chief and cross examination must relate to relevant facts. At the same time, the said provision has kept the scope of cross examination wide enough by providing that cross examination need to be confined to the facts to which the witness testified in his examination-in-chief.
Article 134/ S. 139:-
Article 134/ S. 139 ordains that a person summoned to produce a document does not become a witness by the mere fact that he produces it and cannot be cross-examined unless and until he is called as a witness.
Article 135/ S. 140:-
Article 135/ S. 140 embodies in it the principle that witnesses to character may be cross-examined and re-examined.
Article 136-138/ S. 141-143:-
Non-statutory principles governing cross examination are those which are independent of any statute and have been developed by the courts, jurists and advocates who were known for their mastery in deploying the art of cross examination. It is a fact universally acceptable that cross-examination, like other branches of art, essentially revolves around the skill and the mastery of a cross examiner. The annals of history has not seen many of the cross examiners who used to conduct their cross examinations in a legendary manner. It is for this reason that cross examination is often referred  to as the rarest, the most useful and the most difficult to be acquired of the accomplishments of an advocate. It is the severest test of an advocate’s skill. It is undoubtedly a great intellectual effort as it involves a battle of mind with mind.
Francis Wellman, highlighting the skill of the cross examiner writes  ,” The issue of a cause rarely depends upon a speech and is but seldom even affected by it. But there is never a cause contested, the result of which is not mainly dependent upon the skill with which the advocate conducts his cross-examination”.
Also it has been held in a case  from Indian jurisdiction that cross examination is a powerful and valuable weapon for the purpose of testing the veracity of a witness, the accuracy and the completeness of history and that the extent of its effectiveness no doubt depends upon the dexterity of the wielder of the weapon.
The question which are asked during the course of cross examination are to be asked by following the working rules which have been developed by barristers who have developed proficiency in the art. These working rules include 
Come to the point as soon as possible,
Do not argue with a witness,
Do not ask a question unless there is a good reason for it,
Except in cases where your position is so bad that nothing can injure it, and something may improve it, do not splash about and do not ask a question without bein fairly certain that the answer will be favorable to you,
If a witness is manifestly lying, leave him entirely alone,
Francis Wellman  has dilated upon this subject and has appreciated David Paul Brown for what is known as “Golden Rules for the Examination of Witnesses.” By David Paul Brown. After giving him a tribute, Wellman goes onto reproduce the most read and applied rules of cross examination developed by David Paul Brown. This is what he wrote:
“David Paul Brown, a very able niisi prius lawyer of great experience at the Philadelphia Bar, many years ago condensed his experiences into eighteen paragraphs which he entitled, “Golden Rules for the Examination of Witnesses.
Although I am of the opinion that it is impossible to embody in any set of rules the art of examination of witnesses, yet the “Golden Rules ” contain so many useful and valuable suggestions that it is well to reprint them here for the benefit of the student:
I. Except in indifferent matters, never take your eye from that of the witness; this is a channel of communication from mind to mind, the loss of which nothing can compensate.
II. Be not regardless, either, of the voice of the witness ; next to the eye this is perhaps the best interpreter of his mind. The very design to screen conscience from crime—the mental reservation of the witness— is often manifested in the tone or accent or emphasis of the voice. For instance, it becoming important to know that the witness was at the corner of Sixth and Chestnut streets at a certain time, the question is asked. Were you at the corner of Sixth and Chestnut streets at six o’clock? A frank witness would answer, perhaps I was near there. But a witness who had been there, desirous to conceal the fact, and to defeat your object, speaking to the letter rather than the spirit of the inquiry, answers, No ; although he may have been within a stone’s throw of the place, or at the very place, within ten minutes of the time. The common answer of such a witness would be, I was not at the corner at six o’ clock. Emphasis upon both words plainly implies a mental evasion or equivocation, and gives rise with a skilful examiner to the question. At what hour were you at the corner, or at what place were you at six o’clock } And in nine instances out of ten it will appear, that the witness was at the place about the time, or at the time about the place. There is no scope for further illustrations; but be watchful, I say, of the voice, and the principle may be easily applied.
III. Be mild with the mild; shrewd with the crafty; confiding with the honest; merciful to the young, the frail, or the fearful; rough to the ruffian, and a thunderbolt to the liar. But in all this, never be unmindful of your own dignity. Bring to bear all the powers of your mind, not that you may shine, but that virtue may triumph, and your cause may prosper.
IV. In a criminal, especially in a capital case, so long as your cause stands well, ask but few questions; and be certain never to ask any the answer to which, if against you, may destroy your client, unless you know the witness perfectly well, and know that his answer will be favorable equally well ; or unless you be prepared with testimony to destroy him, if he play traitor to the truth and your expectations.
V. An equivocal question is almost as much to be avoided and condemned as an equivocal answer ; and it always leads to, or excuses, an equivocal answer. Singleness of purpose, clearly expressed, is the best trait in the examination of witnesses, whether they be honest or the reverse. Falsehood is not detected by cunning, but by the light of truth, or if by cunning, it is the cunning of the witness, and not of the counsel.
VI. If the witness determine to be witty or refractory with you, you had better settle that account with him at first, or its items will increase with the examination. Let him have an opportunity of satisfying himself either that he has mistaken your power, or his own. But in any result, be careful that you do not lose your temper; anger is always either the precursor or evidence of assured defeat in every intellectual conflict.
VII. Like a skilful chess-player, in every move, fix your mind upon the combinations and relations of the game—partial and temporary success may otherwise end in total and remediless defeat.
VIII. Never undervalue your adversary, but stand steadily upon your guard ; a random blow may be just as fatal as though it were directed by the most consummate skill ; the negligence of one often cures, and sometimes renders effective, the blunders of another.
IX. Be respectful to the court and to the jury ; kind to your colleague ; civil to your antagonist ; but never sacrifice the slightest principle of duty to an overweening deference toward either.”
Wellman then refers Cox with reference to his book ” The Advocate, his Training, Practice, Rights, and Duties,” written in England in late 19th century and reproduces following paragraph there from: ” In concluding these remarks on cross-examination, the rarest, the most useful, and the most difficult to be acquired of the accomplishments of the advocate, we would again urge upon your attention the importance of calm discretion. In addressing a jury you may sometimes talk without having anything to say, and no harm will come of it. But in cross-examination every question that does not advance your cause injures it. If you have not a definite object to attain, dismiss the witness without a word. There are no harmless questions here; the most apparently unimportant may bring destruction or victory. If the summit of the orator’s art has been rightly defined to consist in knowing when to sit down, that of an advocate may be described as knowing when to keep his seat. Very little experience in our courts will teach you this lesson, for every day will show to your observant eye instances of self-destruction brought about by imprudent cross-examination. Fear not that your discreet reserve may be mistaken for carelessness or want of self-reliance. The true motive will soon be seen and approved. Your critics are lawyers, who know well the value of discretion in an advocate; and how indiscretion in cross-examination cannot be compensated by any amount of ability in other duties. The attorneys are sure to discover the prudence that governs your tongue. Even if the wisdom of your abstinence be not apparent at the moment, it will be recognized in the result. Your fame may be of slower growth than that of the talker, but it will be larger and more enduring.”
Judge Perry  says: “Cross examination, too, is entirely a matter of judgment. Two golden rules handed down from eighteenth century, and may be from beyond, are still unlearned lessons to each succeeding generation of advocates:
Never ask a question without having a good reason to assign for asking it,
Never hazard a critical question without having good ground to believe that the answer will be in your favor.
Judge Joseph Wesley Donovan  says: “There are no better rules of cross-examination than five:
(1) Know what you need and stop when you get it.
(2) Risk no case on the hazard of an answer that may destroy it.
(3) Hold your temper while you lead the witness, if convenient, to lose his.
(4) Ask as if wanting one answer when you desire the opposite, if the witness is against you; and reverse the tactics if he is more tractable.
(5) Treat a witness like a runaway colt; and see that he does not get too much the start of his master; and if he does, let go of the reins at the first safe turn in the testimony; but if you see any object to break his running, call the turn quickly.
i. “Never commence cross-examination of a witness without the best preparation and without posting yourself with all the necessary details concerning the witness and the point on which he would be called upon the depose”
(II CrLT 77)
iii. “Always attack the witness whom you are cross-examining in the weakest point at the opening, unless it is some complicated matter involving long accounts or something of the kind”.
(II CrLT 82)
Always attack him where he is prepared.
iv. “Do not begin with your bad witness. Begin with your best”.
v. “Do not cross examine a witness merely as to character severely never attack a man’s character unless you have a record of it”.
vi. Do not make too much of immaterial discrepancies. The cross examination for immaterial discrepancy in conversation is generally useless”.
vii. “Do not examine a witness in a language which is mush above the level of the witness. A council should always keep to the level of his witness”.
viii. “When the offence is only technical, do not cross-examination much. Want of cross examination may be made up by argument”.
ix. “Try to reduce the gravity of the offence, when it is Proved to the hilt”. It is not
always given to counsel to obtain absolute success. The offence charged against the accused may be a grave one and it may be fully and fairly proved. In such cases it would often be better for counsel to content himself with trying and reducing gravity of the offence in cross examination.
x. “If the witness is enthusiastic or exaggerating, allow him to exaggerate the matter until the exaggeration becomes apparently absurd”.
(Ref. Chapter of exaggerating and Enthusiastic Witness)
xi. “Do not cross-examine a moderate witness severely”.
xii. Do not press and unwilling or reluctant witness to much. It is a danger not to be lightly regarded that of persisting in pressing a question upon a reluctant witness. “When you are find a witness unwilling to give the evidence you seek, and you have drawn him a near to the point as there is any hope of his being drawn or driven, it is always dangerous to attempt to urge him further. If you have nearly got an affirmative, and you press him over much, you may imitate him into giving you a direct negative.
(Ref. Harris, Hints on Advocacy, Xiv Ed. 1911, P-48)
xiii. Do not fish out unnecessary information in cross-examination.
Never ask mere information from a witness under cross-examination, because, if you do, you are sure to get it to your Cost.
(11 CrLJ P-82)
XiV, “Never begin to cross-examine a witness without the purpose, never put a question in cross examination without being able to give a reason for it. The most difficult thing to learn in conducting the case is
“What ought not to be done”. (Haris: Hints on
Xv, “No question should be asked without an object. The witness should not be interrogated aimlessly, and it is far better to ask too few than too many question in Crosse – examination. The mistake is often made of bringing out additional evidence in favor of an opponent upon the cross examination, without impeaching the witness’s credibility.”
(14 CrLJ P-19)
“It is a good rule never to put a question in cross- examination without being able to give a reason for
Xvi, “Stop cross examination when you have got your point. Do not proceed further than necessary”
(11 Cr LJ P -8)
“Never Cross examines any more then is absolutely necessary. If you do not break your witness he breaks you, for he only repeated over in stronger language his original story. Thus you only give him a
Second chance to tell his story to them and besides by random questions you may draw out something damaging to your own case”.
xvii.“Never put unnecessarily various questions in order to please your client”. Where the object of the client is merely to gratify the passions by unmerited abuse, by ambarrasing or intimidating witnesses of whose veracity he has no real suspicion, or by conveying an impression of discredit which he does not actually feel, in all classes of this kind. There is an impression of discredit an imperious duty upon the advocate, who, while the protector of private right is also the minister of public justice require then to be repelled.
xviii. “Do not cross examine in such a manner as to give room an effective and damaging re-examination. Sometimes through small opening in cross examination a large and effective re-examination may gain admittance.
xix. “Do not expect too much from your adversary’s witness”.
xx. “Never create impression in the mind of a witness that you are his enemy or that you disturb him, even if you have to elicit something un-pleasant form him”.
xxi. “Bring out past history or some unfortunate incident in his life by some suitable apology or in a pleasant manner”. Where it is for speak about the death of near relative or dear friend, or to touch some chord of sorrow, or to make witness speak about something unpleasant for him to think or narrate, it is better to use introductory expression of deploring the necessity of asking questions, and representing it as one of the unpleasant but imperative duty of counsel.
(Cox Advocat: Wrottesley P.737)
xxii.“Do not rush through your cross-examination”. There is a nothing more common with beginners than going too fast. They are frequently told by the judge that they forget that he has to take down the answer when the evidence is coming well, there is no doubt a great temptation to let be like a rush of water which shoots over the mill-wheel instead of turning it.
(Ref. Haris: Hints on advocacy 39)
xxiii. “If you get a favorable answer to be repeated over again”.
If an answer favorable to your side has been brought out in cross- examination, don’t press the witness to restate, you can comment upon it when you argue your case to the jury.
(Ref. Hardiwick P.240)
xxiv. “Never cross examine your own witness”.
xxv. “Do not ask a question too broadly”. You should avoid placing the whole point before the witness; otherwise you may get it denied in the lump.
(Ref: Haris: Hints on advocacy P.57)
xxvi. “When a witness has given some evidence in your favor you should not discredit him by showing him unworthy of belief”.
xxvii. “Do not ask questions in cross examination at random without an objective point”.
(11 CrLJ 74)
xxviii. Do not press a witness who refuses to answer a material question. A refusal to answer or an evasion of your question, will frequently be more serviceable to you than words.
xxix. “Do not put material question straightway. Always begin with immaterial question”.
xxx.“When you secure some point in cross-examination, leave it and divert the mind of the witness by some other question of no relevancy at all”.
xxxi. “Do not argue with the witness. Avoid being led into an argument with the witness”.
xxxii. “Do not go over in cross-examination the second the same ground as that covered in examination in chief”.
(11 CrLJ 74)
xxxiii. “Never ask a question the answer to which may be adverse to your case”.
xxxiv. “Do not cross examine unnecessarily to obtain an explanation”. Do not cross-examination for explanation unless the explanation is necessary for your case.
xxxv. “Do not tell a witness again that he is on oath”.
xxxvi. “Do not repeat questions in cross examination. But sometimes by sheer repetition you unnerve a witness and get out truth from him”.
xxxvii. “If you can safely admit a fact, do not put the other party to proof which other party can easily prove”.
xxxviii. “Do not cross-examine a witness on unimportant details”.
xxxix. “Do not lose your temper and never make exhibition of ill feeling”.
(Haris: Hints on advocacy.220)
xxxx. “Never be bluffed out of court, but do not begin the bluff”,
Says Judge Donoven in his work “Tact in Court” (Ibid P.113).
xxxxi. “Do not appeal to the sympathy of the judge or jury too often”.
xxxxii. “Never abuse your privilege as counsel”.
xxxxiii. “Be always ready with law and evidence”.
xxxxiv. “Never interfere with the judge if the begin to cross- examination”.
xxxxv. “Do not attempt to effect the impossible in cross- examination”.
xxxxvi. “Lead the witness to absurd results”.
xxxxvii. “Do not make observation on the testimony while the witness is under examination”.
Before trial, prepare for cross-examination; at trial, decide whether you should cross-exam — be prepared.
Be civil and dignified in your questions and demeanor with the witness before the Jury and Judge — take the “high road” on most all endeavors.
Have two goals: First, try to have witness provide favorable testimony or agree with your facts; Second, if needed, discredit the testimony or the witness, if absolutely necessary — be careful — generally play it safe.
a. favorable testimony — what in direct was helpful?; what in a deposition or other statement was helpful? — draw it out
b. discredit testimony as unreliable — try for 3 minor inconsistencies — observation, perception, memory
c. discredit witness if necessary — i.e. bias, motive, interest — most never a liar — just not trustworthy
d. impeachment the witness — trial testimony vs. other statements
i. prior testimony
ii. written statement
iii. oral statement
vi. criminal convictions
Have a plan — what is the theory of your case and what facts do you need from this witness? There should be about 3 to 4 essential points to establish from the witness on cross — no more. No shotgun approach.
Don’t repeat the answer from direct.
Know the answer before you ask the question.
Most always use leading questions — limited exceptions.
Demonstrate your grasp of the facts to the witness and jury in your leading questions.
Testify for the witness and have her agree with your statement.
Limit and control the testimony and witness — don’t let the witness explain.
Don’t argue with the witness.
Use short clear questions.
Proceed carefully and in small steps — do not leap with one ultimate question.
Listen to the direct exam and cross exam answers and be ready to follow them.
Don’t ask one question too many — save it for closing argument.
If the witness has not hurt your case — no questions.
If you can not contradict or impeach the witness or testimony — be nice and give a cursory or apparent cross and sit down.
Be confident — know where you are & where your documents are in the courtroom.
Be natural — formal/casual/alternate.
Have a poker face when needed.
Use discovery — deposition answers, prior statements, and other witness testimony to cross.
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