A lot of you have written to me – over the years – on advice relating to cross examination.
Well, advice isn’t worth much when it comes to something as practical and experiential as cross examination. (One can’t learn swimming in a library!).
Having said that, a few broad principles that I’ve found particularly helpful are as follows:
1. Failing to prepare is preparing to fail.
Preparation is everything.
2. Think in terms of the transcript.
Think about how the deposition would look on paper! This is also important because – ordinarily – only answers would be recorded and not the questions during a cross examination.
3. Whenever in doubt about a question; whether to ask a question or not, DON’T ASK!
More often than not, you’ll regret the things asked, than the ones not asked.
4. Don’t ask a question the answer to which you don’t know yourself.
Don’t let the witness take you into unchartered factual territory by asking an open-ended question.
If the witness gives a damaging answer and you don’t have further knowledge on that issue, then that would hurt your case.
Try to keep surprises to the bare minimum.
Master the facts; Live the facts.
Be prepared for EVERYTHING!
5. The best questions in a cross examination are the questions not asked!
Less is more!
Also, cross examination is not about being argumentative or about rhetoric. It is certainly not playing to the gallery. Especially, when it’s a trial by the judge and not the jury.
Don’t ask to impress!
Ask to get something.
More often than not, the importance of what you achieve/get in cross examination would not be immediately apparent to anyone (except you, of course!) and would become clear only when you join the dots at the time of final arguments. In fact, that’s how subtle and precise/focussed it should be.
6. You won’t utter a word without a very clear objective.
7. Stick to short, plain, uncomplicated, leading questions!
8. Avoid journalistic type open ended questions (What, Why, How?)
They give the witness a chance to explain and spin a story.
9. Decide the order of examination of witnesses strategically and cross examine related witnesses together.
To ensure you do not give away your defence and retain the element of surprise.
Cross examine related witnesses together and on the same day preferably. Use Vijay Kumar v. State, 2017 SCC OnLine Del 9012 to your advantage.
10. Don’t ask the ultimate question.
Don’t be greedy! Resist the temptation of asking the ultimate question. (You did it, right?). 95 out of 100 times you won’t get a favourable answer. And the witness would come out smelling like roses because of a favourable explanation. Don’t give the witness that room/latitude.
Know what you can reasonably and realistically achieve. Achieve it and then exit!
Don’t stay there for long; the witness would become wiser and wiser and hurt you!
11. Chip away at the sides. Don’t go for the overheated core at the start.
Heed Chanakya’s advice. That’s how you eat a hot roti, right?
12. Stop witness from unduly volunteering.
Object if the witness volunteers too much and fails to stick to a Yes or No answer.
An unfortunate practice currently prevailing is allowing witnesses to not answer a leading question in a simple Yes or No (which is how it’s supposed to be), but explain/volunteer and put his narrative out.
This may not be a desirable or a legally tenable practice unless – of course – the question is not capable of a Yes or No answer. Something like : Have you stopped beating your husband?, for instance, where both Yes or No would be damning and rather misleading.
In normal cases, the witness should respond in a Yes or No and the control should firmly be with the cross-examining counsel.
If the witness has to explain, those explanations should come in re-examination (if at all!) and not during cross examination.
13. Point out contradictions/inconsistencies.
In previous statements/pleadings or otherwise.
14. Remember, What you don’t cross-examine on – may be taken to be admitted.
Please remember. You are as much under cross examination as the witness – in that sense. In some cases what you don’t confront the witness with or cross examine on, may be taken to have been admitted. So, be careful. Do address the most damaging aspects of witness testimony in cross examination. If they go unchallenged, it hurts you.
15. Keep in mind the psychological aspects of cross examination.
The fallibility of human memory, Rashomon effect (different witnesses looking at the same incident differently), etc.
16. Don’t think in terms of a script or be rigid. Be nimble. Think on your feet!
Learn to abandon a line of questioning if it’s not working out and reinvent. Be prepared to kill your darling (questions!) and change strategy.
17. Be prepared for all eventualities.
Before asking any question, think of the myriad answers that may come up in response to that question. For instance, think of the 3-4 possible answers to a question that the witness can give to you, and be ready with a further line of questioning on each of those strands. Don’t let these spontaneous answers get away untested or unexplored. Unchecked testimony may mean that the witness has successfully withstood the test of cross examination.
18. Have a strong cross examination binder.
Keep all cross examination/contradiction material handy.
Use Surinder Kumar Bajaj v. Sheela Rani Pasricha, 2009 SCC Online Del 3855 effectively to confront witnesses not only with previous statements but also other documents which the witness may be expected to reply on.
Hope these help! I have a few more. May be in Part II.
Do share your cross examination experiences in the comment section below.