What are the provision of Examination in Chief Explainer the cross examination?
Can one defendant cross -examination another co – defendant under Indian Evidence Act?
Answers to all the above questions can be gleaned from the Indian Evidence Act, we shall take the issues step by step.
Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is subtle because a good chief examination focuses entirely on the witness and their evidence. The evidence should appear to be flowing effortlessly from the witness. It should look easy. Whereas the witness should be memorable, the lawyer should not. Chief examination is sophisticated advocacy because during its course counsel is actually presenting their case, while trying to satisfy a multitude of objectives, such as maximizing the potential of each witness to present all relevant evidence in as logical, credible, persuasive and accurate manner as possible, while knitting all witnesses' evidence together in a coherent fashion in order to prove all the elements of the offence beyond a reasonable doubt. Examination in Chief thus becomes a starting point for any litigation. In the adversarial system of our country, it becomes a tool of extracting truth from the facts.
Hence it becomes quintessential at this juncture to define what Examination in Chief really means. Section 137 of the Indian Evidence Act defines the term “Examination in Chief”, “Cross Examination” and “Re-Examination”.
The Examination of a witness by a party who calls him shall be called his examination in Chief. Examination in Chief is the first examination after the witness has been sworn or affirmed. It is a province of a party by whom the witness is called to examine him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party’s case. Examination in Chief is also known as Direct Examination.
Legalities involved in Examination in Chief
1. Question based on supposition of fact not proved is improper.
2. Counsels are allowed to ask apparently irrelevant and consequentially inadmissible questions upon the promise to follow them up at the proper time by proof of other facts, which true, would make the question put legitimately operative.
3. The party examining a witness in chief is bound at his peril to ask all material questions in the first instance, and if he fails to do this, it cannot be done in reply.
4. If a question as to any material fact has been omitted upon the examination in Chief, the usual course is to suggest the question to the court which will exercise its discretion in putting it to the witnesses
5. There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-examination
6. The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human, to bring out the truth and the chances of erring may accelerate under stress of nervousness during cross-examination.
7. But in exceptional circumstances there can be a cross examination of witnesses whose chief examination has been not been done.
8. But this situation is uncertain to quite an extent and there have been descending opinion regarding this.
9. On the examination-in-chief, a witness can only give evidence of facts within his own knowledge and recollection.
10. In all cases the facts from the examination in chief must be relevant. The answer must be upon a point of fact as opposed to point of law.
11. The conclusions of a witness as to the motives of other persons are inadmissible, motives being eminently inferences from conduct.
12. Leading questions may not ordinarily be put in examination in chief.
13. In cases where the witness proves to be hostile, he may be cross examined by the party calling him.
Objectives of Examination in Chief
(1) Legally Sufficient to Meet the Burden Of Proof,
(2) Understood and Remembered,
(3) Convincing,
(4) Able to Withstand Cross-Examination, And
(5) Anticipatory and contradictory of evidence that the opposition will present.
Think of direct examination as your opportunity to construct persuasive arguments. The questions that will be asked shall subtly convey your argument. Conversely, use the arguments that you want to make at the end of the case to guide you in planning and preparing the questions you will ask on examination in chief.
There are multiple objectives to examination in chief. The more significant are as follows:
A. Major Objectives
A. the evidence must be admissible;
B. the witness needs to present as persuasive and credible;
C. each and every element of the offence must be proven beyond a reasonable doubt through the witness’s oral evidence and exhibits.
B. Minor Objectives
In addition, you are also trying to achieve the following slightly less essential, but still important, objectives:
A. present a logical, complete and coherent theory of the offence;
B. present each witness in the best possible light;
C. use the evidence of one witness to support another so that a seamless cloth may be woven of the proven fact;
D. fill in gaps in the evidence and attempt to explain any inconsistencies;
E. shut down potential cross-examination thereby limiting the exposure of witnesses.
F. allow the defence as little room to move as possible by minimizing the possibilities of a defence being supported through cross-examination of witnesses
Legal requirements for an examination in chief
Ø Competency of your witness - The first legal requirement is that your witness must be competent to testify. To qualify as competent, a witness must have:
(1) Understanding of the nature and obligation of the oath or affirmation to tell the truth,
(2) Perception (knowledge) of the relevant event,
(3) Recollection (memory) of the relevant event, and
(4) Ability to communicate.
Ø Relevance of your witness' testimony - The second legal requirement for your direct examination is that your witness' testimony must be relevant. Relevant evidence is evidence that has some (any) tendency; however slight, to make the existence of a fact of consequence to the case more or less probable than it would be without it.
Ø Authenticity of matters of evidence to show that the item in question is what its proponent claims it is - The third requirement for your direct examination is that matters of evidence must be authenticated. You authenticate an item of evidence by making prima facie showing that it is genuine.
Ø Proper evidentiary foundation or predicate for the admissibility of the evidence - Certain items of evidence require special foundations to establish admissibility. For example, if your evidence is hearsay and, thus, presumptively inadmissible prima facie, but will be required to establish its admissibility under one of the hearsay exceptions.
Over and above this, the lawyer conducting examination in Chief must also be careful to stick to the legalities as mentioned above.
Lawyer’s Preparation for The Examination In Chief:
(A) Planning Ahead: What is the Witness’ Role?
1. The Theme of the Case.
2. The Order of Witnesses
3. What witness says
(B) Preparing the Witness
1. Prior Testimony.
2. Current Testimony.
3. The Use of Documents to Refresh Recollection.
4. The Cross-Examination Drill.
5. The Rules of Evidence and the Need for Objections
(C) The Direct Examination:
1. Organizing the Direct.
2. The Form of the Question.
3. The Use of Non-Verbal Evidence.
4. To overcome with the mistakes that the witnesses have made.
Art of Preparing A Structure for Examination In Chief:
1. Outline. The questions should be written in the lingo of the ear, not the eye. There needs to be a trial book maintained whose help needs to be taken. The entire process must look impressive and spontaneous to some extent. Maintaining eye contact is necessary.
2. Clarify. To make your questions clear, add only one new fact to each question. Compound questions invite objections. So do questions that are vague and ambiguous.
3. Build evidentiary bridges. There needs to be a connection between the witnesses one wants to present in the examination in chief. One needs to inter relate the witnesses to make it easy for the judges.
4. Employ transitions and signposts. There needs to be proper use of phrases to connect the matter in issue. Use of conjunction and transitions like from here we move to would help the judges understand the matter in a better way.
5. Make repetition persuasive. Repetition must be artful. There must be a repetition of things which are necessary. But such a repetition must be in such a way the opponent cannot object to the repetition.
6. Stretch the important parts. To dramatize a key point in examination in chief, learn how to "stretch-out" your questions. The things which are important should continue for a long time. At the same time, these aspects should remain fresh in the judges mind due to its prolonged nature of presentation.
7. Learn to mirror. Mirror some of the good characteristics of the witness. Adopting some of the characteristics of the witness, e.g., language, smile, tone of voice, eye-contact, etc. puts the lawyer on a better conversational level with his witness.
8. Have your foundations ready. Be prepared to authenticate and lay foundations for any exhibits that are going to be introduced to the witnesses. The goal should be smooth introduction of your tangible exhibits and a persuasive "tell and show" as you use the exhibits to add to the issue concerned.
9. Make your witness' personal knowledge clear. The non-expert witness must speak from personal knowledge. The lay witness can give lay opinion rationally based on the witness' personal perceptions. But a lay witness is not allowed to draw conclusions that call for technical, scientific, or other specialized knowledge.
10. Deflate the potential cross-examination. The examination in Chief must indirectly counter all the rebutting or all probably questions which may crop out of the cross examination. Hence one has to be cautious with the questions put forward.
11. Utilize open-ended questions for the important parts of the story. Questions starting with what, when, how, where etc are open ended questions. They help in giving a vivid description of the issue. And it also benefits the witness to answer at ease.
12. Avoid questions that suggest the answer to your witness. Leading questions should not be allowed to ask in the court, except for certain circumstances.
There are Golden Rules given by David Paul Brown for the Examination of witnesses:
These golden rules alert the lawyer to ask questions according to the type of their witnesses. He has given several guidelines which a lawyer can follow for a worthwhile examination in Chief.
Dealing with the direct examination of a hostile witness, adverse party, or a person identified with an adverse party. A hostile witness can be as unpredictable as a wild hprse. If you don't rein him in, he can do more damage than good.
The hostile witness can be asked leading questions with the permission of the court.
Cross Examination
Cross-examination can make or destroy a case. It is the keystone to a successful trial. Because of the dramatic possibilities inherent in cross-examination, it has become the favourite courtroom device to be exploited by the cinema and television. But what actually the cross-examination is. In this article we can learn about Cross-Examination, Principles of Cross-Examination and what are its types.
1. Introduction
The examination of witness by the adverse party shall be called his Cross-Examination. In law, cross-examination is the interrogation of a witness called by one’s opponent. The purpose of cross-examination is not simply to attack an adversary, but to strengthen your own case. Every party has a right to cross-examine a witness produced by his antagonist, in order to test whether the witness has the knowledge of the things he testifies and if, is found that the witness had the means and ability to ascertain the facts about which he testifies, then his memory, his motives, everything may be scrutinized by the cross-examination.
In cross-examination a great latitude is allowed in the mode of putting questions, and the counsel may put leading questions. The object of cross-examination is to check the credibility of the witness. It is one of the principle tests which the law has devised for the ascertainment of the truth, and it is certainly one of the most efficacious. By this means the situation of the witness, with respect to the parties and the subject of litigation, his interest, his motives, his inclinations and his prejudice, his means of obtaining a correct and certain knowledge of the facts to which he testifies the manner in which he has used those means, his powers of discerning the facts in the first instance, and of his capacity in retaining and describing them, are fully investigated and ascertained.
2. Examination of Witness
Under Section 135 of Indian Evidence Act, gives the power to the court to command or order in which the witness may be produced.
Examination of a witness is asking the witness questions regarding relevant facts in the case and recording the statements of witness as evidence.
There are three parts to the examination of witness and Section 138 of the Indian Evidence Act states that the witness must be examined in the following order: -
(1) First, the party that called the witness examines him, this process is called examination-in-chief as mentioned under Section 137 of the Evidence Act.
(2) After the completion of the examination-in-chief, if the opposite party wants to, they can take over the witness and cross-question him about his previous answers. The opposite party may ask him any question regarding all the relevant facts and not merely the facts discussed during examination-in-chief. This process has been described in Section 137 of the act as cross-examination.
(3) If the party that called the witness sees the need to examine the witness again after cross-examination, they may examine the witness one more time. This has been laid down as re-examination in Section 137 of the Indian Evidence Act, 1872.
3. Principles of Cross-Examination
Scriptural basis for cross-examination: -
The method of eliciting truth by the method of cross-examination is as old as human nature. Cross-examination is commonly esteemed the severest test of an advocate’s skill and perhaps it demands beyond any other of his duties the exercise of ingenuity. There is a great difficulty in conducting cross-examination with creditable skill. It is undoubtedly a great intellectual effort: it is the direct conflict of mind with mind; it demands not merely much knowledge of the human mind, its faculties and their modus operandi to be learned only by reading, reflection and observation but much experience of a man and his motives derived from intercourse with various classes and many persons and above all by that practical experience in the art of dealing with witnesses which is worth more than all other knowledge, which will materially assist but without which no amount of study will suffice to accomplish an advocate.
Rules for the conduct of cross-examination: -
These principles are well understood by barristers who have attained any degree of proficiency in the art, and can best be explained as follows:
To cross-examine is to test in a court of law the evidence of an opposing witness.
This is done by means of questions and in accordance with the following working rules:
v “Come to the point as soon as possible”
v “Do not argue with a witness”
v “Do not ask question unless there is a good reason for it”
v “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 being fairly certain that the answer will be favourable to you”
v “If a witness is manifestly lying, leave him entirely alone. Keep calm”
Object of cross-examination: - The object of cross-examination is to get something, no matter how small to help your own case. When you cannot get that which helps your client, try to get something to weaken ‘your opponent’, but that is got by a different process entirely. To separate the truth from falsehood, more particularly if the truth told by your opposing witness would be of assistant to your case.
Who can Cross-Examine? The party, who has a right to take part in any enquiry or trial, can cross-examine the witness or witnesses. In B.S. Balaji vs. T. Govindaraju, 1966 AIHC 2484 it was said, where one of the Managing Directors of a firm and had borrowed money on behalf of the firm in that capacity without the consent of the other Managing Director, the later, being an adverse party, had the right to cross-examine the former.
Range of Cross-Examination -The range of cross-examination is unlimited, the only circumscribing limits being that it must ‘relate to relevant facts’.
By Section 146 to 150 of Indian Evidence Act, the legislature has tried to give very wide powers to the cross-examination to help him in finding out the truth in oral depositions laid out before the court.
In the course of cross-examination, a witness may be asked questions:
v To test his veracity;
v To discover who he is and what his position in life is;
v To shake his credit by injuring his character, although his answer might criminate him or expose him to penalty or forfeiture.
Omission to Cross-examine- It is a well-established rule of evidence that a party should put to each of his opponents witnesses so much of his case as concerns that particular witness; if no such questions are put, the courts presume that the witnesses account has been accepted. If it is intended to suggest that a witness was not speaking the truth upon a particular point, his attention must first be directed to the fact by cross-examination so that the witness may have an opportunity of giving an explanation.
When a party has declined to avail himself of the opportunity to put his essential and material case in cross-examination, it must follow that he believed that the testimony given could not be disputed. This not a technical rule of evidence. It is a rule of essential justice.
Cross-Examination of Witnesses of Co-accused or Co-defendants- Where two prisoners are tried together and one gives evidence affecting the other, the other prisoner has a right to cross-examine. Evidence of witnesses examined in defence on behalf of one accused and cross-examined on behalf of another accused is admissible as against the latter. It may be otherwise where that other accused had no opportunity by the Magistrate or the judge to explain the circumstance appearing in such evidence. Where the parties arrayed as defendants in a suit have taken contradictory stands on a relevant and material issue, they shall be adversary to each other and are entitled to exercise their right of cross-examination against each other. Where evidence produced by a partner defendant was found admissible against other co-defendant partners, it was held that the co-defendants have a right of cross-examination of such defendant partner.
Cross-examination of Witness called by Court- If the witness called by the court gives against the complaint, he would have right to cross-examine such a witness.
No opportunity for cross-examine – Effect- From the fact that it was not recorded in the depositions of the witnesses that there was no cross-examination, it can be said that, in fact, there was no cross-examination or that the request of the party to cross-examine was disallowed. If the pleaders do not turn up in court at the right moment to cross-examine the opposite party’s witnesses, it cannot be made a ground of attack against the orders passed as the court is not bound to wait for any length of time and waste public time waiting for the pleaders arrival. When the accused was denied the opportunity to cross-examine the witness; the conviction based on the statement of the witness cannot be upheld; and such evidence must be excluded from consideration. Refusal of permission to cross-examine the prosecution witness is not proper and against all principles of justice.
Time for cross-examination – Power of court to limit- The Privy Council held that the judge has always discretion as to how far the cross-examination may go and how long it may continue; a fair and reasonable exercise of his discretion will not generally be questioned by an appellant court.
Delayed Cross-Examination- Delayed cross-examination does not affect the credibility of the witnesses when earlier version of such witnesses was found to be consistent with other evidence and conviction could be based on such evidence.
Section 138 of Evidence Act and Section 311 of Crpc Provisions of Section 138 of the Evidence Act and Section 311 of the crpc are complementary and not conflicting with one another.
Hostile Witness- A witness who is antagonistic to the party calling them and, being unwilling to tell the truth, may have to be asked leading questions.
A hostile witness is also known as an adverse witness or an unfavourable witness. He is a witness at trial whose testimony on direct examination is either openly antagonistic or appears to be contrary to the legal position of the party who called the witness.
The witness can be asked: -
Leading questions under Section 143,
Questions relating to his previous statements in writing under Section 145, and
Questions which tend to test his veracity under Section 146.
Impeaching Credit of Witness- The credit of a witness may be impeached in the following ways by the adverse party, or with the consent of the court, by the party who calls him: -
Evidence of persons that the witness is unworthy of credit;
Proof that the witness has been bribed, or has accept the offer of a bribe, or has received any other corrupt inducement;
Former statements inconsistent with the present evidence;
General immoral character of the prosecutrix in cases of rape or attempt to ravish.
Refreshing Memory- A witness may, while under examination, refers his memory by referring to any writing made by him at the time of the transaction concerning which he is questioned, or so soon afterwards that the court considers it likely that the transaction was at the fresh in his memory.
The witness may also refer to any such writing made by any other person, and read by the witness within the time aforesaid, if he read it he knew it to be correct. When witness may use copy of documents to refresh memory- Whenever a witness may refresh his memory by reference to any document, he may, with the permission of the court, refer to a copy of such document; Provided the court be satisfied that there is sufficient reason for the non-production of the original. An expert may refresh his memory by reference to professional treaties.
When defendant can cross examine co-defendants?
The Supreme Court has taken a view that, in appropriate cases, the Court can invoke the inherent powers to recall the witness for examination. The inherent powers of the Court are not affected by the provisions of Order XVIII Rule 17 of the C.P.C. Since the provisions of Sections 137 and 138 of the Indian Evidence Act, are interpreted by the Karnataka High Court, Chattisgarh High Court and by this Court also and view is taken that in appropriate cases,
where the defendant demonstrates that the co- defendant's evidence would adversely affect his interest, cross examination of such co-defendant is permissible.
Bombay High Court Vinod S/o Khimji Lodaya v Muljibhai S/o Maujibhai Patel on 25 June, 2013
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