Tips and Tricks of Cross Examination in Court of Law by Senior Advocate Vivek Sood

1. Interviewer: The interviewer starts by letting everyone know that the virtual stage is now ready for Mr. Vivek Sood and perhaps he could begin with a brief address on cross-examination for young lawyers.

Mr. Vivek Sood: Started by giving a vote of gratitude to the host for bringing him on this platform, and then he went on to start the conversation by saying that —cross-examination is the most significant component of a criminal trial. The reason why he was calling it a criminal trial and not a civil trial was because many criminal trials are primarily based on oral evidence whereas in cases of civil trials, we have documentary evidence so therefore the scope of cross-examination is reduced and in a criminal trial cross-examination is critical. He said that cross-examination is the only means by which an accused can establish his innocence because whenever an FIR is registered, it is only the complainant’s version and then when the investigation is being conducted, it is done from the perspective of the complainant in mind who is the victim of the crime. Then he talks about cognizance, he says that it is only the version of a complainant that is taken into the record for cognizance, further, he goes on to state that when the charges are framed it is only the version of the complainant or the prosecution that is considered and then the evidence is led on behalf of the prosecution, which is again one-sided and then that is where the importance of cross-examination comes. He again stated that cross-examination was the only means to find out the truth for the accused, it was the only means to establish his innocence in the trial. Because of this reason cross-examination is a critical component of a criminal trial. Having said that, he went on further stating that cross-examination in his view is a dying art and a dying science- he said that because he found youngsters, brilliant lawyers who come from the best of law schools in the country they are all coming with a tendency to flock around corporate law, business law, to join law firms which is why we find very few brilliant young lawyers who enter the arena of criminal trials. Mr Vivek Sood also said that we have some youngsters coming in and they want to focus on economic offences, and white-collar crimes but very few intelligent, brilliant youngsters want to do the cross-examination in heinous offences, so cross-examination is a dying art. From his belief we have very few good cross-examiners left in Delhi or even in the country, he went on to state that he has seen that most lawyers don't study the case and just grope in the dark while cross-examining the prosecution witness. He brought to light a very known truth that since most of the accused are languishing in jail or they come from poverty-stricken backgrounds, they are uneducated so, therefore, they don’t have the means of even finding out the quality of the cross-examination which is being done by the defence lawyers, therefore, it is immensely important that the young lawyers coming from the best of the law schools also consider practising in the trial court. He also mentioned that young lawyers should consider developing the art and science of cross-examination, he delightfully added that it is a fascinating facet of criminal practice. The highest point of his law practice has been to cross-examine. He must’ve cross-examined over maybe 7 to 800 witnesses [sic]. Of course now since he’s been a senior counsel for the last about 10 years, the opportunities to cross-examine witnesses have substantially come down but whenever he gets an opportunity, he grabs that opportunity, he delightfully added! He stated that with this background we can initiate the discussion, and he’ll be happy to answer all the questions.

2. Interviewer: The interviewer acknowledged Mr Sood’s insights and accentuated the diverse experiences and strategies that the different lawyers bring forth to cross-examination, each of them is influenced by the unique mentors and personal strategies. Addressing the virtual audience of hundreds, the interviewer asked a question from Mr Sood seeking to glean from his four decades of experience: “What is one strategy that could universally apply to different cases, guiding the preparation for cross-examination, identifying weak spots in the evidence and effectively cross-examining witnesses”? 

Mr Vivek Sood: willing to share his wisdom, began to elaborate upon the importance of preparation. “Okay the one strategy since you’ve asked me for that one mantra, so I will share a few important mantras for cross-examination, first of all-first and foremost is to know without preparation, it is not possible to effectively cross-examine witnesses, now by preparing you to know, I don’t mean that you must formulate all the questions, of course, I would do that in my initial years, I would pen down the questions, later on with experience, I would pen down the areas of cross-examination, so that became a summary and with more and more experience I could then make a very brief summary as to what are the questions and what are the areas in which I will question, so preparation is of foremost importance firstly.” 

Secondly, he said that it was essential to understand the witnesses and the evidence they bring to the table. Having a really solid grasp of the case is of essence-by that, he meant understanding the prosecution story thoroughly, especially since he had often represented the accused. Knowing the prosecution case and how they intend to prove it through their witnesses allowed one to prepare for their defence in accordance.
The third crucial aspect that he discussed was, knowing your witness. One can learn about the witness through their section 161 statement and the evidence that they have been provided. It is crucial to understand the background of the witness-is the witness a police officer or an eye witness and so on. Recognising these three key areas-preparation, understanding your defence, and knowing your witness-is what helps develop a solid examination strategy.

3. Interviewer: Moving forward, the interviewer put forth another question. He said that we come to hear a lot about this point that we have to understand the psyche of the next person. So as a lawyer when one is cross, examining somebody or when a lawyer is in court representing, then he has to know the psyche of the person that he is talking to, it could be a judge that the lawyer might want to understand, it could be the person that he is cross, examining that he has to understand before he starts cross-examining —which strata does the witness come from, understanding this is important, so the second question was, what are some of the psychological techniques and questions that he can share with the lawyers and they can apply those techniques in their matters?

Mr Vivek Sood:  Generally, his strategy whenever cross-examining the witnesses, has always been the rapid-fire strategy, where he immediately begins asking the most uncomfortable questions without giving the witness any time to settle. He emphasises that these strategies depend on the facts of each case and the individual being cross-examined. Some of the lawyers may opt for more mundane questions initially, to understand the witness’s psyche before moving into a rapid-fire approach.

It is also important to understand from which strata of society, the witness comes, whether they are educated or not, and whether they are a police witness or an eye witness, among other parameters. With these parameters, a psychological image of the witness is created, which helps guide the cross-examination. For example, if the witness is over-smart or has been tutored and keeps repeating false answers, then Mr Sood would drive the witness to absurdity by asking questions that force contradictory answers. This tactic makes the witness appear totally unreliable. Alternatively, if a witness gives the same answer to every question, then Mr Sood would request the judge to note down all the questions and answers. At the stage of final arguments, he could then demonstrate that the witness was evasive. Therefore, understanding the psychology of the witness is crucial in developing an effective cross-examination strategy.

4. Interviewer: The interviewer then proceeded to enquire about the role of aggression in cross-examination. He noted that some of the lawyers might resort to intimation while others may adopt a more composed approach. He questioned what strategies might be effective in such scenarios. Additionally, he also sought to understand if within the bounds of legitimate advocacy, techniques such as intimidation could be recommended or if there were ethical considerations to be mindful of in this regard.

Mr Vivek Sood: Stated that under the law of evidence, a witness’s character can be impeached during cross-examination. The cross-examination need not restrict itself purely to the parameters of relevancy-they can go beyond relevancy to impeach the witness’s character, it can include aggressive cross-examination. This approach depends majorly on the witness and the cross-examiner.

Mr Vivek Sood mentioned the renowned Cross examiner, Mr Pandit Naseem, who was one of the finest in the 80s and 90s. Mr Naseem was exceptionally polite and he presented questions like gifts to the witness. This would often lead the witness into providing the desired answers to Mr. Naseem. In contrast, Mr Sood’s style varied between aggression and softness depending upon the situation.

Mr Sood, compared cross-examination to batting on different wickets. Whenever the terrain is difficult, one must be defensive at first and strategically choose shots later, he said. The nature of the witness, the evidence and immediate factors play important roles in determining the cross-examination approach.

He stated that some level of aggression is permissible in cross-examination, up to the point of making a threat. This can include threatening the witness with perjury charges, which is considered ethical within the bounds of the game. However, unethical practices would include influencing a witness or asking a client to threaten or bribe them.

Mr Sood emphasised that in the context of cross-examination, some amount of sledging is allowed-though it should be discrete so that the judge does not hear. The assertion is that being as aggressive as one can be in cross-examination is fair game.

5. Interviewer: The interviewer then posed a rapid-fire question to Mr Sood. He asked out of a hundred instances when a lawyer is unsure of how to handle a bit, how many times out of 100 would choosing to be aggressive proof effective? How often does aggression work?

Mr. Vivek Sood: Mr. Vivek Sood responded that his approach would be something like a 70-30. He noted that 70% of the time, he has been aggressive and 30% of the time he has been shocked. He explained that the effectiveness of aggression depends on the situation. If a lawyer is obtaining their defence from the witnesses, they may not need to be aggressive at all. However, with over-smart or overt witnesses, he has often been very aggressive. Even to the point, that judges have to slow him down or tell him “No, no, you can’t do that ”— nonetheless, he normally adopts a very aggressive stance because the cross-examination is the only instrument that is available to the accused in order to establish their innocence. Therefore, he very strongly advocates for a strong, assertive approach in these scenarios.

6. Interviewer: The interviewer then enquired if it would be effective for the lawyers to bring a team with them, like young lawyers, taking a couple of friends or experienced ones bringing the interns. This, he noted, could potentially add pressure to the businesses rather than having a single lawyer, cross-examine them.

Mr. Vivek Sood: Agreed that adopting all kinds of strategies is possible. Going into the courtroom with five interns or four juniors, and a few others could indeed have a positive impact upon the case and a negative impact upon the witness. If the presence of a battery of lawyers can confuse or intimidate the witness, then it is permissible. He emphasised that all is fair in love and war.

7. Interviewer: The interviewer then asked about preparing the clients for cross-examinations. He sought advice on ensuring that clients do not make mistakes and solidify their positions in the case.
Mr Vivek Sood:  He elaborated that it is unethical to tutor a witness. However, having a conference with a witness or advising and motivating them ethically is acceptable. He suggested preparing for cross-examination by drafting and asking the 10, 20, 50 or even hundred questions that the opposite council might ask. This practice, he believed-was the most effective way to prepare a witness for cross-examination.

8. Interviewer: Stemmed out of the question that was asked about intimidation and aggressive cross-examination, and another question received was about judicial intervention. The interviewer said that this happens often and while it is legal and the judge has to maintain décor and ensure justice, how should a lawyer tackle and take care of the client’s interest in such matters?

Mr. Vivek Sood: Preparation is the key, he said, if a lawyer is ill prepared, they give an opportunity for the judge to dominate the proceedings. If a lawyer knows the case well, they can argue and join issues with the judge on relevancy and the principles of the law of evidence. If a lawyer is aware of the law that permits them to cross examine or to impeach their character and credibility, they can assert the right to ask relevant questions, even if the judge tries to restrain them.

Aggression does not mean physical confrontation, but being aggressive and assertive within the legal bounds. Judges may protect the witnesses, especially given the rise of witness protection programmes. However, if a lawyer’s questions are relevant, then no judge can stop them from asking aggressively. The judge does not control the lawyers volume like a remote control-the lawyer must balance being civilised and being aggressive, he added.

Mr Sood also said that the judges generally do not stop the lawyers from cross examining unless they are repetitive or ill prepared or even clueless about their defence. Judges may ridicule or admonish such lawyers and highlight the necessity of thorough preparation. Mr Sood emphasised on the importance of hard work and cross examination and stated that hard work is paramount over any prestigious education.

9. Interviewer : The interviewer asked Mr Sood about handling biased judges who keep badgering or intervening. He queried about how to politely request the judge to let them proceed or whether it would be better to let them be and whether or not, there should be fear of revision or an appellate question.

Mr. Vivek Sood: Mr Vivek Sood responded that there is no question of letting the situation be. He emphasised the importance of being tactful and well prepared. He recounted an experience from about 15 years ago when he defended an accused in a CBI criminal trial. While he was polite, tactful and well prepared-one of his contemporary was very aggressive in cross examination, which led to frequent skirmishes with the judge. Ultimately, the client was exonerated and acquitted. While the other lawyer’s client was convicted and sentenced to more than three years in prison, spending three months in jail before bail was granted by the High Court.

Mr Sood stressed that the judges proceeding over criminal trials decide the destiny of the clients. Therefore, the lawyers must be tactful. By aggression, he did not mean intimidating the judge or making them unhappy. If lawyers are well prepared with their questions in case, the judges usually do not restrain them. If a judge refuses to grant more time for cross-examination or tries to conclude within 10 minutes, the order can be challenged before a higher forum. He acknowledged that the tendency of interventionist judges, but asserted that 99.99% of judges appreciate a good line of questioning and cross examination by the lawyers. Therefore, Mr Sood reiterated that hard work and the preparation are paramount in handling any case.

10. Interviewer : The interviewer said that in the experience of Mr Sood, he must have seen many young lawyers and older lawyers also and must have observed where they make mistakes. Highlighting this he posed a question that, if we were to list out three common mistakes that young lawyers or the lawyers were not skilled in the trade are making, then what would they be and how could they be resolved?

Mr. Vivek Sood: he answered, saying that firstly, most lawyers are in prepared. The second floor is that over cross examination. Over cross examination means through their questions, they end up, filling the lacunas in the prosecution case. If there are shortcomings in the prosecution case, they should not fill them up with their line of questioning during cross-examination. The third floor that Mr Sood highlighted was that-a fallout of the second one, knowing when to stop. Knowing what not to ask is as important, if not more important than knowing what to ask and when to ask it. These were the two or three serious flaws that Mr Sood mentioned which he saw in the inexperienced lawyers who do not prepare their cases well.

11. Interviewer: The interviewer then asked if Mr Sood could provide an example of the second and the third floor, specifically about knowing when to stop during cross examination? 

Mr. Vivek Sood: Answering the question, Mr Sood laid down the principles of Lakshman Rekha. The moment a lawyer has elicited the desired defence from the prosecution witness. They should stop, he added. He also mentioned that it is crucial for lawyers to ask all significant questions because often judgements are noted that on certain material aspects, there was no cross examination-this means that particular fact is considered established. 
Another important aspect that Mr Sood highlighted was-to avoid asking the nuclear question directly. He gave an example and said, that in a stabbing case, if the allegation is that the accused stabbed the deceased then, a lawyer should never ask the eye witnesses directly if they saw the accused stab the deceased. The witness will obviously say yes, therefore, instead of directly asking it, the lawyer should ask the peripheral questions such as “where were you? What was the time? How dark was it? Was it night time? How far were you standing? Where was your phone?” mr Sood said that these questions will help build a narrative that the witness may not have been there or could not see with clarity. The focus should be on creating doubts through peripheral questioning and then bringing the point home in the form of suggestions, he added. He also reiterated the fact that experience and training with seasoned cross examiners will help refining these skills.

12. Interviewer: The interviewer asked the next question, he said while Mr Sood knows that we have some strategies for general Cross examination, is there anything specific that we should be following when we are talking to an expert, medical expert or police person or somebody who is an officer-so the question was whether for them something different has to be taught?

Mr. Vivek Sood:  Mr Sood responded affirmatively that yes, one should have the knowledge of that area, the area of expertise that should be knowledgeable, and secondly one should have enough material with them, that is-enough scientific material to contradict the expert. First of all one must have a study of that area and second of all one must have scientific material to contradict them. And thirdly, one must confront that material with the witness, he said. Mr Sood added that a lawyer cannot just ask a witness and that he has to confront him. And later the lawyer must bring that material through a defence witness. mr Sood also mentioned that a lawyer has to confront him, and he has to confirm the material by which they want to contradict the expert. So these were some of the important faces that he discussed-he added the dish should come handy when a lawyer is cross examining expert witnesses.

13. Interviewer :  The interviewer reflected upon the previous discussion about knowing when to stop during cross examination and he noted the importance of limiting questions and the fear that certain questions might undermine the defence. He then asked Mr Sood, what skills lawyers must have in order to improve their cross examination technique.

Mr. Vivek Sood: He elaborated on the importance of knowing when to stop asking the questions during cross-examination. He proposed that a lawyer should identify the incriminating facts in any case and also comprehend the witness’s connection to these facts. For instance, whenever an expert witness is focusing on medical conditions, a ballistic expert on weapons or a handwriting expert on handwriting analysis. Each witness has a direct and distinct role and should be questioned accordingly.

Mr Sood emphasised that once lawyers clearly understand the incriminating facts, then the witness’s role and the defence strategy can be crafted effectively in cross examination and intuitively they come to know when to stop. He assured that with these preparatory parameters in place, the lawyers would naturally recognise the appropriate moment to conclude their questioning.

He further explained that handling witnesses in cross examination required knowledge of the expert’s field and sufficient scientific material to contradict the expert’s testimony. He stressed that attorneys should thoroughly study the expert’s area of expertise and then gather enough scientific evidence for contradiction. In addition to this, he insisted that his material must be confronted directly during cross examination rather than introduced later through a defence witness.

14. Interviewer : The interviewer mentioned that they had 10 minutes left and two more questions to go. He suggested incorporating some questions from the chat box, the next question was about how Mr Sood manages to keep up with technology, despite the passage of time and how young and old lawyers should adapt to using technology in the courtroom.

Mr. Vivek Sood: He responded by saying that technology can play a crucial role in cross examination. He also reminisced about the times when he had to examine the chief witness and cross examine without the aid of artificial intelligence and other technological advancements. Mr Sood expressed how the technology of nowis allowing segregation and classification of facts and data which is making cross examination even more effective.

Show the knowledge that young lawyers are more technologically savvy as compared to the lawyers of his generation and they can use technology to their advantage efficiently. He also conceded that the younger generation is ahead in terms of intelligence, commitment and focus. He also mentioned that the younger generation represent the future of the bar and judiciary. Mr Sood mentioned that while he is adapting to technology, the younger lawyers in his office are super efficient and continuously learn and teach him about the different aspects of technology. He concluded by happily proclaiming himself a student of technology and Law.

15. Interviewer : The interviewer acknowledged and noted the final question on the board, asking if Mr Sood would elaborate on the use of suggestions in law as a lot of individuals struggle to understand the purpose and how they serve as a tool in the legal practice.

Mr. Vivek Sood: He explained that empty suggestions are meaningless and ineffective. In legal terms, simply suggesting that a witness has lied is unproductive. If there is no foundational basis of the suggestion. And effective use of suggestions involves presenting the defence clearly through a well founded questionnaire during cross examination. Mr Sood emphasised that suggestions should be done on the basis of evidence which is established during the body of the cross examination, for example-indicating poor visibility, the witness’s location, or other factors that will weak the witness’s credibility. Once these foundational elements are put in place, then the lawyer can make meaningful suggestions that reinforce their defence narrative.

16. Interviewer : He then suggested that he will not take up the questions in chronological order and then went on to put forward. The first question that he saw which was asked by Mr Sushil, which was- if a lawyer can put such documents during cross examination, which are not a part of the court record? 

Mr. Vivek Sood: Mr Sood explained that in criminal law, it is possible to introduce documents during cross examination that are not a part of the court record. He pointed out that while there is no specific stage for filing documents for the accused in criminal cases, which allows this practice, civil cases on the other hand-operate differently. In civil law, the CPC provisions required the leave of the court and valid explanation for not finding the documents earlier. It is important not to surprise the witnesses with unexpected documents in civil cases. However, in certain exceptional cases, judges may permit to introduce the new documents if a compelling case is made. Mr Sood emphasised on the fact that in criminal cases, confronting a witness with a document which is not part of the record is permissible.

17. Interviewer : Interviewer then asked another question which was being asked by Mr Virendra Bagchi, the question was-usually, the cross examination goes to the corner of the cotton. Judges are not listening to what is happening many times so can an objection be made to this practice? 

Mr. Vivek Sood:  Mr Sood advised that the lawyers should refrain from undermining the judges during cross examination. He then suggested that while it is pertinent for judges to be active participants and not recording machines. During cross examination, the reality is that the judges are often burdened with numerous cases. Magistrates, in particular those who are multitasking, might not always focus solely on the cross examination. Therefore, he recommended that lawyers should politely request judges to devote their attention to the cross examination process in order to ensure that they are fully aware of the proceedings.

18. Interviewer: The interviewer mentioned that it may be a good idea and also added something that he had witnessed. A senior lawyer in Dehradun had raise an objection under Section 273 of CRPC and referenced to a Supreme Court judgement that interpreted Section 273 as requiring evidence to be taken in the presence and hearing of the accused.The judgement also applied this requirement to the judge, highlighting an irregularity in the examination process.

Mr. Vivek Sood: Mr. Vivek Sood explained that the Supreme Court has repeatedly addressed that a judge is not merely a recording machine nor a mute spectator in a criminal or civil trial but active participant. However, he also warned that these objections must be made tactfully in order to avoid jeopardising the whole case.

Interviewer: the viewer expressed his gratitude for Mr. Sood’s  insights, noting the huge number of  unanswered questions on Zoom and social media he extended an invitation for another session. He appreciated the enriching nature of these discussions and the potential it has for further learning.

Mr. Vivek Sood: Mr. Sood conveyed his pleasure in speaking about cross examination, which is one of his favourite subjects and also thanked the platform for having him.

19. Interviewer : The interviewer thanked Mr Sood and all the participants, announcing future sessions with various legal professionals on LAWyersClubIndia. He also encouraged the attendance to check the provided link link to the learning page LawyersclubIndia for more interactions and educational opportunities, including publishing articles, teaching and connecting with clients. The interviewer also invited suggestions for future sessions and courses. Emphasising the vibrant activity on lawyers club India’s forum. He extended thanks once again and wished everyone a pleasant evening.