EXAMINATION OF WITNESSES

·???????ORDER OF PRODUCTION AND EXAMINATION OF WITNESSES.

The order in which witnesses are produced and examined shall be regulated by the law and practice for the time being relating to civil and criminal procedure respectively, and, in the absence of any such law, by the discretion of the Court.

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The presentation of evidence begins with the calling of witnesses by the attorney.?The attorney does the initial questioning of the witness and this is commonly called the direct examination.?A successful direct examination can be accomplished by controlling the witness without hampering his/her ability to testify freely, truthfully, and honestly.?This balance can only be reached by thoroughly preparing for the questioning.?The purpose of direct examination is to get the witness to testify about facts that support the plaintiff’s case.

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Since there is no set method for asking questions, certain latitude should be allowed in the form of asking questions to witnesses.?The judge has control over an attorney’s examination of a witness and dictates the form of questions presented to the witness.?The judge has wide latitude to impose reasonable limits on questioning at trial based on concerns regarding harassment, prejudice, confusion of issues, a witness’s safety, and conservation of the court’s time.

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The following are some frequently made objections:

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Leading question;

Compound question;

Vague question;

Argumentative question;

Narratives;

Asked and answered or repetitive;

Assuming facts, not in evidence or hypothetical; and

Non-responsive questions.

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The judge has the discretion to stop repetitive or annoying questioning.?Variations on a theme, however, are permissible, so long as the identical information is not endlessly repeated.?If the questions are not asked and answered then it can be brought to the notice of the judge and how it differs pointed out.

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Questions which are so indefinite, vague, or which leave it almost entirely to the discretion of the witness as to what matters the witness will elucidate, are improper[i].?If a timely objection is made, the judge shall sustain such objections and the witness shall not be allowed to answer.

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Even though questions that lead to a narrative statement are generally improper, the trial court shall be vested with wide discretion to permit a witness to testify.?Generally, a case will not be taken from the jury or a judgment reversed because an improper question is propounded to a witness where such a question is unanswered.

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Generally, witnesses cannot state opinions or give conclusions unless they are experts or are specially qualified to do so.?Witnesses qualified in a particular field as expert witnesses may give their opinion based on the facts in evidence and may give the reason for that opinion.?The witness is not allowed to testify that a legal standard has or has not been met.?Therefore, questions that call for conclusions of law should be avoided; especially an opinion on the ultimate issue for the jury. This is improper and should be avoided.

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Questions that require a witness to comment upon the testimony of another witness should be excluded.?It is not competent for a state witness merely that another person knew a thing[ii].?A witness shall state an opinion as to the credibility of a child witness’s general competence and ability to understand some specific things.?Compound questions that involve several questions are improper and objectionable and such objections shall be properly sustained.

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Questions assuming facts and hypothetical questions are generally improper.?The trial courts are afforded wide discretion to determine the adequacy of hypothetical questions presented to witnesses during the course of a trial.?An ALJ has discretion in framing hypothetical questions as long as they are supported by substantial evidence in the record.

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However, an affirmative answer to a hypothetical question does not constitute substantial evidence when the hypothesis fails to conform to the facts.?In a vocational expert’s opinion to be relevant or helpful, it must be based upon a consideration of all other evidence in the record and it must be in response to proper hypothetical questions which fairly set out all of the claimant’s impairments

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A leading question is a question that suggests the answer or contains information which the examiner is looking for.?Although leading questions are generally not permitted on direct examination, there are certain exceptions to this rule.?Depending on the circumstances, leading questions shall be objectionable or proper.?Leading questions may be used during a direct examination in the following situations:

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Preliminary matters such as a person’s name, address, and background;

Undisputed facts, for example: “I would like to direct your attention to October 13, 2005, on that day you were in Paris, were you not?”

An adverse or hostile witness;

When a witness has difficulty in speaking;

When necessary to refresh a witness’s recollection; and

When encountering an unwilling, reluctant, or recalcitrant witness.

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A witness has to answer questions truthfully during the examination.?It is common for witnesses to unexpectedly volunteer inadmissible statements.?Improper responses shall be stricken.?A witness shall be required to answer all relevant questions, even if the witness is a party and the witness’s testimony might further the opposing party’s case.?When a question calls for an answer of either yes or no, the witness is ordinarily permitted to explain the answer.

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Voluntary statements or non-responsive answers by law enforcement officers shall be particularly problematic when such remarks are made by an experienced police officer.?However, such voluntary statements made by police officers at criminal trials create prejudicial errors, depending on various factors.?A prosecutor must guard against statements by the prosecution’s witnesses containing inadmissible evidence.?If the prosecutor believes that a witness may give an inadmissible answer during his examination, the prosecutor should warn the witness to refrain from making such a statement.?The admission of a law enforcement officer’s hearsay testimony is harmless or not a prejudicial error, where the statement or answer is cumulative for other compelling evidence in the record or if it is cured by admonition.

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The redirect examination of witnesses rests largely in the discretion of the trial court.?The general principle that to warrant a reversal the error must have been prejudicial to some substantial right of the appellant applies to rulings of the trial court on matters relating to the redirect examination of witnesses.?The main purpose of redirect examination is to clarify the subject matter of the direct examination and any new matter elicited on cross-examination.?A witness can clarify certain relevant matters in his/her testimony through redirect examination.

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When a witness forgets things, the attorney can refresh his/her memory[v].?In such circumstances, the attorney may attempt to refresh the witness by asking a leading question, showing the witness a document, which can be prepared by the witness him/herself, using any other object or prop to refresh.

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The Federal Rules of Evidence entitle an adverse party to the discovery of any writing, even one subject to privilege, used to refresh a witness’s memory to testify, whether his memory is refreshed while testifying, or before testifying if the court in its discretion determines it is necessary.??The Maryland rule, unlike the Federal rule, retains the rule’s original formulation and allows access only to documents used to refresh recollection while testimony

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Therefore, although documents used to refresh a witness’s memory while testifying must be produced, the rule leaves it up to the court’s discretion whether to require the production of documents reviewed to refresh a witness’s memory in preparation for testifying.?In exercising discretion under the rule, a court balances the need for disclosure, to examine the witness fully, against the need to protect work product, to encourage careful preparation.

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There is a distinction between refreshing recollection and a past recollection recorded. In the former situation, the notes or memoranda used by the witness are not placed in evidence but are used to trigger his psychological mechanisms of recognition and recollection, enabling a witness to then testify from the witness’s memory.

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Once attempts are made to refresh the memory of a witness, the witness is expected to testify the matter substantially from memory and not by reading from any document.?A written memorandum can be used to refresh a witness’s memory and the witness may be required to use the same.?This may be done at any stage of the examination of the witness.

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If the attempt to refresh memory is unsuccessful, the document itself is not independently admissible unless it satisfies a hearsay exception.?Foundation requires proof that the document was made or adopted by the witness while the event was fresh in the witness’s memory and that the record is remembered to be accurate.

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COMMENTARY

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The provision of Rule 3 of Order XVIII, C.P.C. are subject to the Provision of Rule 1, whether the plaintiff should lead evidence first or defendant, is to be determined following Rule 1 and Rule 3 of Order C.P.C. and is applicable where there are several issues; the burden of proving some of the issues li8es on the other party. [PLD1961Dacca412].

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In Criminal cases, the prosecution always begins and has the right to produce any witness, cited in the calendar of Challan or to give up any of them. On the application of the accused person, it was not desirable to order for the recording of statement of prosecution witnesses out of turn and if application allowed then it would give an impression to the litigants in particular and the public in general that the attitude of the Court was not fair and impartial[2003YLR1831].

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·???????JUDGE TO DECIDE AS TO ADMISSIBILITY OF EVIDENCE.

When either party proposes to give evidence of any fact, the Judge may ask the party proposing to give the evidence in what manner the alleged fact, if proved would be relevant; and the Judge shall admit the evidence if he thinks that the facts if proved, would be relevant and not otherwise.

If the fact proposed to be proved is one of which evidence is admissible only upon proof of some other fact, such last-mentioned fact must be proved before evidence is given of the fact first mentioned unless the party undertakes to give proof of such fact, and the Court is satisfied with such undertaking.

If the relevancy of the alleged fact depends upon another alleged fact being first proved, the Judge may, in his discretion, either permit evidence of the first fact to be given before the second fact is proved. Or require evidence to be given of the second fact before evidence is given of the first fact.

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ILLUSTRATION

·???????It is proposed to prove a statement about a relevant fact by a person alleged to be dead, which statement is relevant under Art. 46. The fact that the person is dead must be proved by the person proposing to prove the statement before evidence is given of the statement.

·???????It is proposed to prove, by a copy, the contents of a document said to be lost. The fact that the original is lost must be proved by the person proposing to produce the copy before the copy is produced.

·???????A is accused of receiving stolen property knowing it to have been stolen. It is proposed to prove that he denied possession of the property. The relevancy of the denial depends on the identity of the property. The Court may, in its discretion, either require the property to be identified before the denial of possession is proved or permit the denial of possession to be proved before that property is identified.

·???????It is proposed to prove a fact (A) which is said to have been the cause or effect of a fact in issue. There are several immediate facts (B, C, and D) that must be shown to exist before the fact (A) can be regarded as the cause or effect of the fact in issue. The Court may either permit A to be proved before B, C and D is proved or may require proof of B, C, and D before permitting proof of A.

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COMMENTARY

Where a question material for proving a defense case was disallowed by the trial Court, the case was remanded so that the question may be asked and the case decided in the light of the answer. (1975PCr.LJ1280 (DB)).?The proper course was for the signatory of the affidavit to appear in person otherwise affidavit would be inadmissible. (1989Cr.LJ845). An assertion made by the witness in an examination, in chief not disputed or controverted in cross-examination. Effect. Such assertion would deem to have been accepted by opposite party principles. [PLD 2008 Kar.388].

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Role of Defence Lawyer in Examination-in-chief

It is stated that the role of a defense lawyer during examination-in-chief is the most ignored strategic aspect of defending an accused in a criminal trial and there are no books on this strategic aspect of law. Hence, ensuring a properly conducted examination in chief is key to a fair trial and for the same, the role of the Defence Lawyer is of extreme importance. Following are the important role of defense lawyers in criminal trials.

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Defense Lawyer should not a mere spectator but an active participant during the examination-in-chief

Considering the importance of the examination-in-chief, it is crucial that a Defence Lawyer is not a mere spectator during the examination-in-chief and it is important that the Defence Lawyer is vigilant and carefully watches the entire examination-in-chief, to ensure that no legally impermissible evidence comes on record. The Defence Lawyer must raise legal objections regarding the impermissibility of the evidence led by the Prosecutor during examination-in-chief.

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Role of ensuring that accurate language is used in the recorded evidence

Many a time, the evidence is given by the witness in a vernacular language, however, the evidence is recorded after translating the same into the language of the Court (say, English).

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Thus, it is the most important role of the defense lawyer that what has been stated by the witness is accurately recorded, also in the exact sense in which the same is stated so that when the same is subsequently referred to at the final arguments or the Appellate Stage, the same sense comes out. (In case need be, the Defence Lawyer can also request the Court to record within brackets the exact vernacular language used, to subsequently have the exact sense of how the evidence is recorded).

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Remember, the use of 'wordings' in evidence can change the entire sense of the sentence/evidence. For example - the use of the simple word “thus” or “accordingly” in a sentence can give a sense of connectivity between two aspects, which though may not be the case.

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Defense Lawyer is also to ensure that anything favorable to the Accused stated by the witness is not omitted to be recorded

The Defence Lawyer is also to ensure that anything favorable to the Accused stated by the witness is not omitted to be recorded in evidence and in case the same is missed, the Defence Lawyer should insist on the recording of the same. For example: - omission to record the words “Maybe” or “I suppose”, which would show that the evidence is not certain.

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To notice the body language of a witness

For a successful cross-examination, a Defence Lawyer is also required to notify the body language of the witness, to gauge the witness. This is essential for the Defence Lawyer to would his manner of cross-examination according to the witness. A Defence Lawyer cannot adopt the very same body language towards each witness and has to modify himself.

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Here, thus, the understanding of human nature becomes very important for a Defence Lawyer. For example: - By understanding the nature of the witness in the movie Few Good Men, the lawyer was able to get the truth out.

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Request the Court to record the demeanor/ conduct of a witness

A Defence Lawyer must also request the Court to record the demeanor of a witness, in terms of Section 280 CrPC. The recording of the demeanor of the witness helps the Court to appreciate the evidence better. Similarly, the superior courts, which would be presented with only the written evidence, would also be benefitted in case the demeanor of the witness is duly recorded by the Trial Court.

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Objection to examining by the prosecution of an irrelevant witness

A witness, for being examined in a matter, ought to depose on relevant facts to the trial. In case the prosecution proposes to examine an irrelevant witness, which does not pertain to the charges framed by the Court (i.e., relating to facts in issue and relevant facts), the Defence Lawyer ought to object under Section 5 read with Section 136 Indian Evidence Act to the recording of his evidence and must insist that his objection is recorded.

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Objection to proof of proposed fact before proving other facts, upon proof of which only is the former fact admissible

The Defence Lawyer can also object if the prosecution attempts to prove a fact, proof of which is dependent upon proof of some other fact. Such an objection has to be raised in terms of Section 136 2nd Para/ Rule 2 of the Indian Evidence Act.

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Objection to asking a Leading Question

A Defence Lawyer should always be vigilant in hearing the question put by the Prosecutor and object to the same before the same being answered by the witness.

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Objection to Hearsay Evidence

A Defence Lawyer should always object the hearsay evidence because it is a settled principle of law that the facts to be deposed by a witness are to reflect his knowledge and hearsay is excluded, being inadmissible.

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Objection to the exhibition of Photocopy Documents or Electronic Evidence

Without fulfilling the conditions under Section 65 of the Evidence Act, a photocopy or Xerox document is inadmissible and cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

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An electronic document can be brought into evidence, only if the same is accompanied by a certificate under Section 65-B of the Evidence Act, and thus, an electronic document, without such a certificate, cannot be proved by a witness. In case the same is sought to be exhibited by the prosecution, the Defence Lawyer ought to object to the same.

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Objection to giving evidence contrary to a written document

In a criminal trial, there are occasions when the prosecution seeks to examine witnesses to give evidence contrary to a written record. However, as oral evidence, contrary to a written record, is barred under Section 91 and 92 of the Evidence Act, thus, in case any such attempt is made, the Defence Lawyer should promptly object to the same.

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Objections to the Opinion by a non-expert Witness

If the opinion of a non-expert witness is sought to be introduced in evidence by the prosecution, then the Defence Lawyer must object to the same because the only set of people entitled to give an opinion is those persons categorized as experts under Section 45 of Evidence Act and none other.

Cross-examination

Section 137 of the Indian Evidence Act, 1872, also defines the term “Cross-examination”. 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 the examination-in-chief. This process is called cross-examination.

Cross-examination is very important in the examination of witnesses, due to the cross-examination many facts get clear because in the cross-examination defendant analyses all the statements of the witnesses then ask for cross-question related to the statement which was given by the witnesses in the examination in chief.

If there was a death of the defendant and cross-examination was only partly done. Then his evidence will be admissible as there is no provision under law that if the witness was not cross-examined either in full or part his evidence would be rendered inadmissible.

Cross-examination Procedure in Civil Case

All the witnesses in civil cases which are produced or examined by the court on the wish of parties must be presented before the court within 15 days from the date on which issues are framed or within such other period as the court may fix. Then parties have to file a list of witnesses in the suit. After that court can ask the witnesses for examination by sending summons or parties may call the witnesses by themselves. If the court issued a summons for asking the witnesses for the examination then the expenses which arise due to the calling of witnesses by issuing summons have to be deposited by the parties. The money deposited by the parties in this condition is known as “Diet Money”. The date on which the parties wish to produce and examine the witnesses in the court that is hearing. Now the hearing will decide the court on the date of hearing. Firstly, statements made by a plaintiff/ witness in their Evidence by way of Affidavit or in examination-in-chief, along with exhibited documents to be recorded. After that defendant asks for cross-questions that were asked or given by the plaintiff/ witness in the examination in chief or Evidence by way of Affidavit. And after the cross-examination is over at this stage the court will fix a date for the final hearing.

Cross-examination Procedure in Criminal Case

There are different stages of cross-examination in criminal cases in the criminal trial in a warrant case instituted on the police report After the charges are framed, and the accused pleads guilty, then the court requires the prosecution to produce evidence to prove the guilt of the accused. The prosecution is required to support its evidence with statements from its witnesses. This process is called “examination-in-chief”. The magistrate has the power to issue summons to any person as a witness or orders him to produce any document. After the examination-in-chief, cross-examination is to be done by the counsel for the accused.

Canons of Cross-examination

While preparing for the cross-examination and at the time of cross-examination of a witness, it must be remembered that cardinal principles are always non-exhaustive and often molded as per the facts and circumstances of the case, the nature of the witness, the nature of the judicial officer supervising the trial, and also the nature of opposing counsel. Some of these basic tenets may be drawn as follows:

Know the facts

A case file must be thoroughly read and as far as possible, read in chronological order along with the annexures/ exhibits/ reports attached. A conjoint reading of the pleadings or evidential-affidavits and the documents or evidence attached is always recommended, instead of, reading the documents dis-jointly. In the exercise, mark out the deficiencies and contradictions found in the documents or statements, as the case may be.

Know the law

It is indisputable to state that a good understanding of the substantive laws, the procedural laws, and the adjective laws is always quintessential for effective cross-examination by any lawyer. This is because the questions of cross-examination are generally based on relevant facts, pertinent to the case at hand, essential elements of an offense or transaction, and the procedure governing such offense or transaction.

Sync the laws and facts

Identify the relevant statutory provision(s) and the facts of the dispute before framing a questionnaire for cross-examination. Read the provisions and mark out the essential elements categorically, despite having read the provisions on an earlier occasion(s). This assists an examining lawyer to prepare the questionnaire which syncs the statutory essentials with the relevant facts of the case in hand.

Prior research on documents

Once the above-suggested exercise is done, the examining lawyer must examine whether the document(s)/ evidence which have not been produced by the witness are publically accessible i.e. public documents.

Whom not to call

It is recommended not to call a person as a witness, to whom, the opposite party is bound or will call as a witness. This will allow such an examiner to cross-examine such a witness.

Not the number

It must always be first appreciated whether a witness to be cross-examined, even avers anything against your client. It must be remembered that it is not the number of witnesses produced or the number of witnesses cross-examined which determine the result of a trial. Every witness need not be compulsorily crossed.

Never assume facts or make the witness introduce disadvantageous facts

It is a pertinent principle for an examining lawyer to not assume the existence of a fact unless such a fact by the witness in his examination-in-chief or evidence by way of affidavit has been averred so and it is not of very trifle nature.

Switch after a favorable answer

In a situation where you receive a favorable answer, it is always recommended to quickly pass on other queries. Don't ever ask the same question again to show the triumph.

Rapid questions

If the opposite party has a strong case or prepared witnesses, select the weakest point and put the questions rapidly at the same pitch of voice. This often derives the opportunity of the witness to imagine and manufacture the answer within such time. Such witnesses may be confronted with leading questions. Such questions often help in breaking the pre-arranged version of the party and call for a spontaneous narrative.

Maintenance of eye contact

It is essential for the cross-examiner to maintain eye contact with the witness, all through the cross-examination. The movement of the hands, eyes, the pitch of the voice, all speak.

Re-examination

Section 137 of the Indian Evidence Act, 1872, also defines the term “Re-examination”. The party who attend the witness for the cross-examination shall be called re-examination. If the party is not subjected to cross-examination as per the court order then it is not safe to trust on examination in chief.

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