Cross-examination

What is Cross-Examination?

Cross-Examination is a procedure in which a counsel gets to interrogate the opposing counsel’s witness during a trial. It is preceded by Examination-in-Chief and may be followed by Re-examination. The purpose behind Cross-Examination is to elicit more answers, discredit the witness’s own or someone else’s testimony, or bring out inconsistencies in the same. Cross-examination is generally limited to questioning only on matters that were raised during direct examination.

Official definitions of examination-in-chief

Section 137 of the Indian Evidence Act, 1872, (IEA) and Section 142 of the Bharatiya Sakshya Adhiniyam, 2023 (BSA), define Cross-Examination as – “The examination of a witness by the adverse party shall be called his cross-examination.” The terms 'Examination-in-Chief' and 'Re-examination' are also defined in the same provision. Thus, cross examination of a witness without conducting his examination-in-chief is not permissible in law.

Black’s Law Dictionary defines it as “In practice. The examination of a witness upon a trial or hearing, or upon taking a deposition, by the party opposed to the one who produced him, upon his evidence given in chief, to test its truth, to further develop it, or for other purposes”.

In the USA, cross-examination is defined as the opportunity to question any witness who testifies on behalf of any other party to the lawsuit or for the prosecution or defendants.

Rules followed during Cross-examination

Questions for Cross-Examination

Section 146 of IEA and Section 149 of BSA provides the lawful questions that can be asked to a witness during cross-examination. Leading questions are permissible to be asked during a cross examination. During cross-examination, a witness may be subjected to questions designed to test their veracity, ascertain their identity or status, or discredit their testimony by injuring their character. This provision allows for the probing of the witness’s credibility, even when such questioning may lead to answers that directly or indirectly incriminate the witness or expose them to penalties or forfeiture. However, in a prosecution involving offences related to women and children (Section 376 Indian Penal Code, 1860 and Sections 64 to 71 of the Bharatiya Nyaya Sanhita, 2023), where the issue of consent is in question, it is prohibited to ask the victim during cross-examination about their general immoral character or past sexual experiences with any person, for the purpose of proving such consent.

Manner of Cross-examination

The manner for the examination of a particular witnesses is laid down under Section 138 of IEA and Section 143 of BSA – examination-in-chief, followed by cross-examination, and lastly, a re-examination. The Supreme Court of India has held that tendering a witness for cross-examination without examination-in-chief is not warranted by law. Tendering the witness only for cross-examination, points to the failure of the prosecution to examine the witness at the trial.

Leading Questions

Section 142 of IEA and Section 146 of BSA states that leading questions must not be asked in a cross-examination if they are objected to by the adverse party, except if permitted by the Court. Further, it mentions that Courts shall permit leading questions in matters which are either undisputed or which in the opinion of the Court, have been already sufficiently proved. The objective behind precluding leading questions is to ensure that the witness answers the truth and not what the counsel calling him wants to hear.

Significance of Cross-examination

If the witness after being examined by their own counsel, is not cross-examined, then the testimony becomes valueless and cannot be looked into. High Courts across India have taken different stance in this context. The Patna High Court has held that the evidence given by a witness in his examination-in-chief cannot be discarded merely because he could not be cross-examined. The Jammu Kashmir and Ladakh High Court however, refused to consider the evidence obtained from the examination-in-chief to fasten any liability, because the opposing counsel could not get the opportunity to cross-examine the witness. In cases, where the defendant was not given the opportunity to have a cross-examination, the examination-in-chief would be contrary to law. Same was held by the Supreme Court in 2024.

Scope of Cross-examination

As per Indian laws, the first purpose of cross-examination is to elicit the suppressed fact. Confining one’s cross-examination to Section 138 and 143 of the respective Acts, help fulfil this purpose.

The second purpose is to discredit the witness testimony, and for the same, Section 145 of IEA and Section 148 of BSA provides for cross-examination of previous statements in writing. It must be noted however, that the witness cannot be recalled for contradicting him on the basis of a subsequent inconsistent testimony before any other court or forum.

Research that engages with Cross-Examination

The Cross-Examination and the Role of Courts – A Review

This paper deals with the developments in the procedure of Cross-examination, its importance, and how it affects the Justice Delivery System. Describing the important elements of chief and cross-examination, the author shows how the piecemeal form of cross-examination has been condemned by the Court, and how it causes an ordeal to the trial judge. The author also focuses on the demeanour of the witness and states some precautions that trial judges must keep in mind during cross-examination.

Effect of Not Cross-Examining a Witness (on a point) & Effect of Not Facing Complete Cross-Examination by a Witness

The author delves into the effects when the witness statements are taken undisputed, and shows how the probative value of evidence of a person, who died after examination-in chief or who is partly cross-examined, depends on the facts of the case. The paper mainly deals with the evidentiary value of processes related cross-examination, such as mere suggestion during cross examination which is not supported by defence evidence would not have an evidentiary value.

The Limits of Cross-Examination

This paper has been authored by a criminal defense attorney of USA, who has cross-examined experts for forty years. He argues in this paper that witnesses in general are not scientifically incompetent, but also morally deficient. Consequently, he advocates for a cross-examination of experience based experts instead.

Keeping Cross-Examination under Control

This paper shows why and how cross-examination is not as easy as examination-in-chief. In Direct examination, the witnesses are controlled through preparation and rehearsal, but for cross-examination, the same cannot be done. It has to be more meticulously planned, tightly controlled and disciplined. Further, this paper serves as a guide for lawyers, explaining the reasons to forgo cross-examination, to include specific topics, whether they should try to convince a witness to change testimony, etc. Ultimately, the uncertainty of cross-examination is emphasised by the author, making it necessary for lawyers to prepare carefully for the same.

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