Lawyers Institute for Empowerment recently held an interactive online class with Advocate S. Balan on ‘The Art of Effective Cross-Examination’. During the session, Criminal Advocate S Balan spoke on the various elements attached to the art of effective cross-examination.
“Cross-examination is like boxing between defence counsel and the witness. Who knocks the other down is the entire parameter.”
– S. Balan, Advocate
Adv. S Balan started off the lecture by stressing on the importance of research on the facts of the case and research on the law applicable to the case. He then listed certain provisions*, which he considered extremely important.
“[With] These sections and their decisions, the defence lawyer should be perfectly, completely thorough. All the decisions from over sixty, seventy years, all the decisions should be on the fingertips; they should be in the mind. Even in midnight, when asked, these sections and decisions, one should be capable of telling us”
Criminal Adv. S Balan explained cross-examination by giving real-life examples. Describing the procedure leading up to the cross-examination, he points out how “one should be able to differentiate between the recovery of fact based on the voluntary statement and the recovery of an object based on the voluntary statement.”
In case of a weapon being involved, he explained- “When the weapon is concealed, it is the discovery of the fact. When the weapon is recovered, it’s called the recovery of the object.”
Considering the case of recovering a blood-stained weapon or object from the scene of the crime, Advocate S. Balan talks about the “effective cross-examination of the blood” and enlists his line of questioning regarding certain aspects related to the bloodstain- whether the blood is fresh or old, whether the blood sample was taken before or after the death of the person, whether the blood was from a vein or artery and even whether the blood belongs to a male or female.
Posing such questions before the Investigation Officer (IO) and the experts brings several things into perspective. He illustrated how he was able to defend a case based on these questions. He emphasized the process of “thorough cross-examination with the IO as well as the expert regarding the colour of the blood.”
He then elucidated a case wherein all the evidence was stacked up against the accused. However, by cross-examining the complainant, he was able to establish a key fact which helped in the acquittal of the accused. Reciting the incident, he observed:
“All the documents are against the accused. All the documents are in favour of the complainant. But still, the cross-examination, the tenor and tone of the cross-examination, the twist, the tongue-twisting, the grouping of questions: one after the other… Ultimately [he was] made to admit- what I want, I got it.”
He highlighted the fact that the defence counsel should be “thorough with law, thorough with fact, thorough with the incident, thorough with the investigation and do thorough research” Speaking on research, he maintained that the ‘original fact’ should be ascertained from several sources. There is an emphasis on doing thorough research and visiting the spot of the incident and taking photographs of the location.
“In every criminal trial, there is actual version, on record- little or more developed version, little or more planting of witnesses and little or more variation in timing.”
While recalling a case, he made a point of cross-examining the witnesses on the following aspects:
- Location of the incident: the entire locality, the surrounding, the environment in a particular radius.
- Identification of the accused: focus on the features of the accused.
- Weapon: The characteristics and appearance of the weapon.
Coming to the aspect of the process of questioning, he stated that the “questions should be just pouring, shooting like a machine-gun.” Elucidating the importance of firing a line of questions, he states that “the question should be very spontaneous.”
“It’s a hot goose chase. Chase him, fix him, corner him and develop your questions one by one- these questions should be very, very spontaneous”
He then spoke about making the doctors and the experts surrender in the course of cross-examination. “The cross-examining counsel should not [jump] right on[to] the question; it should be in the mind.”
He underlined the fact that the defence counsel should read the case file several times and analyse everything. He also mentioned visiting the spot and taking photographs for reference. “It is completely research work”, he said.
“As many times as possible, a defence counsel should go and see the spot. He has to understand the entire topography of the area… Make circumstance after circumstance and think… Spend a lot of time in the night [thinking about] how to overcome circumstance no. 1, 2,3,4, and so on.”
He further stated that one should be deliberating over which question to put forth and in what manner will that question be answered. He advised “securing all the decisions relevant to the case regarding the weapon, regarding the venue, regarding the eye-witness, regarding the other circumstance” before going for cross-examination.
Concluding the lecture, he suggested not backing down until the desired answer is achieved.
“Cross-examination means not cutting the leaves or branches or the trunk- I don’t believe in that. Cut the root… Cross-examination is an art.”
The session was concluded by a Q&A session and the following questions were answered:
What is omission and what is the contradiction?
A. Omission means whatever is not stated in the statement given under S.161 or the statement given under S.164 of the CrPC. The first instance of deposing before the Court is called omission because the version which is deposed before the Court was not stated before the police.
Consider the following example- The statement given before the Court: “I went to a particular location at 8 o’clock. ‘A’ assaulted ‘B’ on his leg.”
The statement was given under section 161 and section 164 of the CrPC: “I went to a particular location at 7 o’clock. ‘A’ assaulted ‘B’ on his leg with a rod.”- which is the truth.
What is stated before the court is the omission and what you’re going to mark is the contradiction; omission amounting to the contradiction. The contradiction should be marked as a defence document. Only when it is beneficial to the defence counsel for the purpose of acquittal, should he mark an omission. Marking a contradiction mechanically, without any purpose, by way of a defence document is very, very dangerous.
What are the common mistakes committed by advocates while cross-examination?
A. There is no room for mistakes. You should never make a mistake. Admission will lead to the closing of the case. One should be thorough.
________________________________________________________________________
*List of Important Provisions
The Code of Criminal Procedure, 1973
S.136- Consequences of him failing to do so.
S.154- Information in cognizable cases.
S.161- Examination of witnesses by police.
S.164- Recording of confessions and statements.
S.165- Search by a police officer.
S.173- Report of a police officer on completion of the investigation.
S.174- Police to enquire and report on suicide, etc.
S.6- Relevancy of facts forming part of the same transaction.
S.7- Facts which are the occasion, cause or effect of facts in issue.
S.8- Motive, preparation and previous or subsequent conduct.
S.9- Facts necessary to explain or introduce relevant facts.
S.11- When facts not otherwise relevant become relevant.
S.24- Confession caused by inducement, threat or promise, when irrelevant in a criminal proceeding.
S.25- Confession to police officer not to be proved.
S.26- Confession by accused while in the custody of police not to be proved against him.
S.27- How much of information received from accused may be proved.
S.45A- Opinion of Examiner of Electronic Evidence.
S.60- Oral evidence must be direct.
S.61- Proof of contents of documents.
S.64- Proof of documents by primary evidence.
S.65- Cases in which secondary evidence relating to documents may be given.
S.65B- Admissibility of electronic records.
S.68- Proof of execution of document required by law to be attested.
S.69- Proof where no attesting witness found.
S.70- Admission of execution by party to the attested document.
S.71- Proof when attesting witness denies the execution.
S.72- Proof of document not required by law to be attested.
S.73- Comparison of signature, writing or seal with others admitted or proved.
S.105- Burden of proving that the case of accused comes within exceptions.
S.106- Burden of proving fact especially within knowledge.
S.113A- Presumption as to abetment of suicide by a married woman.
S.113B- Presumption as to dowry death.
S.114- Court may presume the existence of certain facts.
S.140- Witnesses to the character.
S.154- Question by party to his own witness.
S.160- Testimony to facts stated in document mentioned in section 159
S.161- Right of adverse party as to writing used to refresh memory.
S.162- Production of documents.
S.164- Using, as evidence, of the document, production of which was refused on notice.
The Information Technology Act, 2000
S.79A – Central Government to notify Examiner of Electronic Evidence.
