Concept of Cross-Examination under Professional ethics
Tags: Cross-examination, Ethics
CROSS EXAMINATION
ABSTRACT
Cross – examination is basically used for the questioning
for the witnesses or the other party which is done in a trial and it may be
done in a civil or criminal cases. Normally it is done for checking the
accuracy of the witness. Every party has a right to do cross examine. It is not
always mandatory but it can be done on the certain conditions or under some
compulsory situations. Generally a witness can say truth or lie depends on him
so for them the cross examination process begins. This process basically helps
the officers or investigators to re check that the witness produced by the
parties is right or wrong.
WHAT IS
CROSS – EXAMINATION?
Cross – examination is used to question for the witness which
is done in a trial and it can be done in civil and criminal cases. It is more preferable
than the direct examination because in cross – examination there is no chance
of making a story or saying different answers in different manner or giving
more chances to explain. It is basically used to check the witness which is
produced by the party that it is wrong or right. In law it is used for
interrogating the other party. It is used by direct examination in UK,
Australia, Canada, South Africa, and India.
In any trial cross-examination generally comes after the
direct examination. The question can be raised either by plaintiff or the
defendant or it can be raised by an expert. The difference between the cross –
examination and direct examination is that in direct examination the parties
are prevented to ask questions but in cross- examination they are allowed to do
questions. The decision of cross – examine a witness is generally based on the
criteria of presenting a case.
In direct examination they ask questions from witness and
the witness has a time to frame a picture for the jury or a judge but the
cross-examination basically focuses on the things which were said in the direct
examination. The answers which were given in the direct examination will be
check by the officer. Cross-examination is basically used to check the witness that
whether the statements given by him in direct examination can be believes or
not. Cross-examination is typically used to do in following ways:-
·
To show that the witness is biased and he has a motive to lie.
·
To show that the witness has done bad in past something like fraud.
·
To show that the statements which was given in the direct examination is
totally different from earlier.
·
To show that the witness facts is just opposite from the knowledge of
the subject.
VARIATIONS
BY JURISDICTION
In the US federal courts during direct examination a
cross - examining attorney is not permitted to ask questions but most state
courts allows for this. Similarly courts in England, South Africa allow a
cross- examiner to exceed the ambit of direct examination.
Such another party is come to be at position to ask
questions if the judge gave permission to do so at the request of the examiner
and the questions will be asked openly by them with the permission against the
opponent party.
THE ART
OF CROSS – EXAMINATION
By Gerald A. Klein
While direct examination may be the hardest - and most important - part
of any trial, cross-examination is usually the most fun. Unfortunately, most
lawyers do not cross-examine witnesses well and forget that the purpose of
cross-examination is not simply to attack an adversary, but to strengthen your
own case. The following eight steps will help you create effective
cross-examination that will advance your case.[1]
The main purpose of cross-examination is to test whether the statements
which is given by the witness is truthful or not. It is done in civil as well
as criminal trials. It will be difficult when the witness statement is
contradicting the another statement. It is not just the art of examining
crossly but it is just used to check the witness statements. Now it is
considered as an important part of the trial for the witness and the effect of
this is depend on the discretion of the Judge. Some lawyers practice in
litigation but some lawyers have a compulsion to get a training of cross-examination.
The attorney which is doing cross-examine has a right to ask all the questions
on direct examination and if there is any statement contradicting it can be
called upon on the court but he is not allowed to ask or repeat the answers of
direct examination.
AFFECTING THE OUTCOME OF JURY TRIALS
Cross-examination is an important part of the trial. If there is any
doubt on the witness then the discretion of the judge or jury may be changed.
Sometimes the witness says the truth in the original statements which increase
the belief of the judge. Therefore the
arguments which is done to the witness is just the deciding moment of a trial
then the effective cross-examination wins trials.
During the questions of the attorney he can repeat any admissions which
were made by the witness that favor their case. In the United States
cross-examination is a main part of the entire judicial system. There are many
factors which affect the result of any trial.
STEPS OF EFFECTIVE CROSS-EXAMINATION
There are following eight steps which will create effective
cross-examination and help in advance the case:-
Ø
Need to cross-examine the witness
Ø
Determine your goals for the witness
Ø
Make sure you have a cross-examination plan
Ø
Keep it short
Ø
Know when to stop
Ø
Use only leading questions
Ø
Destroying the witness’s credibility through cross-examination
Ø
Remember the court room is theater.
THE TEN COMMANDMENTS OF CROSS-EXAMINATION
A. The First Commandment: Thou Shalt Prepare
B. The Second Commandment:
Thou Shalt Know Thy Objective
C. The Third Commandment:
Thou Shalt Take Baby Steps
D. The Fourth Commandment: Thou Shalt Lead the Witness (Usually)
E. The Fifth Commandment:
Thou Shalt Know Thy Style and Adapt It to the Occasion
F. The Sixth Commandment: Thou Shalt Know When to Quit
G. The Seventh Commandment: Thou Shalt Know What to Take to the Podium
H. The Eighth Commandment: Thou Shalt Know Thy Audience
I. The Ninth Commandment: Thou Shalt Know the Rules of Evidence
J. The Tenth Commandment:
Thou Shalt Know Thy Judge
CONCLUSION
Through this article, the author wants to
conclude that if the effective cross-examination will be done then it can make
the difference between the winning and losing a trial. Now cross-examination is
the part of the trial and it is basically for experienced lawyers who prepare a
good cross-examination which requires a lot of thoughts and hard work because cross-examination
is a questioning by a lawyer to the witness by the opposing side.
BIBLIOGRAPHY
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