In short ask only that question ahich you are sure to be replied with desired answer. Never ask any question which can be used to fill up the lacuna of his evidence-in -chief. If a point is not covered by him never ask any question on that point so that he gets an opportunity to clarify the point left untouched by him in his evidence-in -chief.

The cross-examination is more about mastering the art of avoiding a right question than asking the same by damaging his case.

Dear Sanyojini Deshmukh,

First of all a very Happy New Year 2010 and agreeing totally what Mr.Devajyoti Barman has stated I would like to add the following text for your perusal : -

Examination in Chief is one of the most subtle and sophisticated forms of advocacy. It is subtle because a good chief examination focuses entirely on the witness and their evidence. The evidence should appear to be flowing effortlessly from the witness. It should look easy. Whereas the witness should be memorable, the lawyer should not. Chief examination is sophisticated advocacy because during its course counsel is actually presenting their case, while trying to satisfy a multitude of objectives, such as maximizing the potential of each witness to present all relevant evidence in as logical, credible, persuasive and accurate manner as possible, while knitting all witnesses' evidence together in a coherent fashion in order to prove all the elements of the offence beyond a reasonable doubt. Examination in Chief thus becomes a starting point for any litigation. In the adversarial system of our country, it becomes a tool of extracting truth from the facts.

Hence it becomes quintessential at this juncture to define what “Examination in Chief” really means. Section 137 of the Indian Evidence Act defines the term “Examination in Chief.”

Examination in Chief-

The Examination of a witness by a party who calls him shall be called his examination in Chief. Examination in Chief is the first examination after the witness has been sworn or affirmed. It is a province of a party by whom the witness is called to examine him in chief for the purpose of eliciting from the witness all the material facts within his knowledge which tend to prove the party’s case. Examination in Chief is also known as Direct Examination.

Legalities involved in Examination in Chief.

a)      A question based on supposition of fact not proved is improper.

b) Counsels are allowed to ask apparently irrelevant and consequentially inadmissible questions upon the promise to follow them up at the proper time by proof of other facts, which true, would make the question put legitimately operative.

c) The party examining a witness in chief is bound at his peril to ask all material questions in the first instance, and if he fails to do this, it cannot be done in reply.

d) If a question as to any material fact has been omitted upon the examination in Chief, the usual course is to suggest the question to the court which will exercise its discretion in putting it to the witnesses

e) There was no question of cross-examining the plaintiff travelling beyond the evidence of the plaintiff given in examination-in-chief and thereby giving an opportunity to make out a case in cross-examination

f) The corollary of it is that if a judge felt that a witness has committed an error or a slip it is the duty of the judge to ascertain whether it was so, for, to err is human and the truth and the chances of erring may accelerate under stress of nervousness during cross-examination.

g) But in exceptional circumstances there can be a cross examination of witnesses whose chief examination has not been done.

h) But this situation is uncertain to quite an extent and there have been descending opinion regarding this.

i) On the examination-in-chief, a witness can only give evidence of facts within his own knowledge and recollection.

j) In all cases the facts from the examination in chief must be relevant. The answer must be upon a point of fact as opposed to point of law.

k) The conclusions of a witness as to the motives of other persons are inadmissible, motives being eminently inferences from conduct.

l) Leading questions may not ordinarily be put in examination in chief.

m) In cases where the witness proves to be hostile, he may be cross examined by the party calling him.

There are other legal provision of the Indian Evidence Act which are applicable here and are referred to in the later part of the project.

Objectives Of Examination In Chief

(1) Legally sufficient to meet the burden of proof, (2) understood and remembered, (3) convincing, (4) able to withstand cross-examination, and (5) anticipatory and contradictory of evidence that the opposition will present. Think of direct examination as your opportunity to construct persuasive arguments. The questions that will be asked shall subtly convey your argument. Conversely, use the arguments that you want to make at the end of the case to guide you in planning and preparing the questions you will ask on examination in chief.

(2) There are multiple objectives to examination in chief. The more significant are as follows:

A. Major Objectives

(a) the evidence must be admissible;

(b) the witness needs to present as persuasive and credible;

(c) each and every element of the offence must be proven beyond a reasonable doubt through the witnesses oral evidence and exhibits.

B. Minor Objectives

In addition, you are also trying to achieve the following slightly less essential, but still important, objectives:

(1)   present a logical, complete and coherent theory of the offence

(2)   present each witness in the best possible light;

(3)   use the evidence of one witness to support another so that a seamless cloth may be woven of the proven fact;

(4)   fill in gaps in the evidence and attempt to explain any inconsistencies;

(5)   shut down potential cross-examination thereby limiting the exposure of witnesses.

(6)   allow the defence as little room to move as possible by minimizing the possibilities of a defence being supported through cross-examination of witnesses

Legal requirements for an examination in chief

Competency of your witness - The first legal requirement is that your witness must be competent to testify. To qualify as competent, a witness must have: (1) Understanding of the nature and obligation of the oath or affirmation to tell the truth, (2) Perception (knowledge) of the the relevant event, (3) Recollection (memory) of the relevant event, and (4) Ability to communicate

Relevance of your witness' testimony - The second legal requirement for your direct examination is that your witness' testimony must be relevant. Relevant evidence is evidence that has some (any) tendency; however slight, to make the existence of a fact of consequence to the case more or less probable than it would be without it.
Authenticity of matters of evidence to show that the item in question is what its proponent claims it is - The third requirement for your direct examination is that matters of evidence must be authenticated. You authenticate an item of evidence by making a prima facie showing that it is genuine.

Proper evidentiary foundation or predicate for the admissibility of the evidence - Certain items of evidence require special foundations to establish admissibility. For example, if your evidence is hearsay and, thus, presumptively inadmissible prima facie, but will be required to establish its admissibility under one of the hearsay exceptions.

Over and above this, the lawyer conducting examination in Chief must also be careful to stick to the legalities as mentioned above.

Lawyers’s Preparation For The Examination In Chief:

(A) Planning Ahead: What is the Witness’ Role?

1. The Theme of the Case.

2. The Order of Witnesses

3. What witness says

(B) Preparing the Witness.

1. Prior Testimony.

2. Current Testimony.

3. The Use of Documents to Refresh Recollection.

4. The Cross-Examination Drill.

5. The Rules of Evidence and the Need for Objections

(C) The Direct Examination:

1. Organizing the Direct.

2. The Form of the Question.

3. The Use of Non-Verbal Evidence.

4. To overcome with the mistakes that the witnesses have made.

Art Of Preparing A Structure For Examination In Chief:

1.      Outline. The questions should be written in the lingo of the ear, not the eye. There needs to be a trial book maintained whose help needs to be taken. The entire process must look impressive and spontaneous to some extent. Maintaining eye contact is necessary.

2.      Clarify. To make your questions clear, add only one new fact to each question. Compound questions invite objections. So do questions that are vague and ambiguous.

3.      Build evidentiary bridges. There needs to be a connection between the witnesses one wants to present in the examination in chief. One needs to inter relate the witnesses to make it easy for the judges.

4.      Employ transitions and signposts. There needs to be proper use of phrases to connect the matter in issue. Use of conjunction and transitions like “From here we move to” would help the judges understand the matter in a better way.

5.      Make repetition persuasive. Repetition must be artful. There must be a repetition of things which are necessary. But such a repetition must be in such a way the opponent cannot object to the repetition.

6.      Stretch the important parts. To dramatize a key point in examination in chief, learn how to "stretch-out" your questions. The things which are important should continue for a long time. At the same time, these aspects should remain fresh in the judges mind due to its prolonged nature of presentation.

7.      Learn to mirror. Mirror some of the good characteristics of the witness. Adopting some of the characteristics of the witness, e.g., language, smile, tone of voice, eye-contact, etc. puts the lawyer on a better conversational level with his witness.

8.      Have your foundations ready. Be prepared to authenticate and lay foundations for any exhibits that are going to be introduced to the witnesses. The goal should be smooth introduction of your tangible exhibits and a persuasive "tell and show" as you use the exhibits to add to the issue concerned.

9.      Make your witness' personal knowledge clear. The non-expert witness must speak from personal knowledge. The lay witness can give lay opinion rationally based on the witness' personal perceptions. But a lay witness is not allowed to draw conclusions that call for technical, scientific, or other specialized knowledge.

10.  Deflate the potential cross-examination. The examination in Chief must indirectly counter all the rebutting or all probably questions which may crop out of the cross examination. Hence one has to be cautious with the questions put forward.

11.  Utilize open-ended questions for the important parts of the story. Questions starting with what, when, how, where etc are open ended questions. They help in giving a vivid descripttion of the issue. And it also benefits the witness to answer at ease.

12.  Avoid questions that suggest the answer to your witness. Leading questions should not be allowed to ask in the court, except for certain circumstances.

There are Golden Rules given by David Paul Brown for the Examination of witnesses: These golden rules alert the lawyer to ask questions according to the type of their witnesses. He has given several guidelines which a lawyer can follow for a worthwhile examination in Chief.

Dealing with the direct examination of a hostile witness, adverse party, or a person identified with an adverse party.

A hostile witness can be as unpredictable as a wild mustang stallion. If you don't rein him in, he can do more damage than good. The hostile witness can be asked leading questions with the permission of the court.

Critical Appraisal Of The System

The examination in Chief is one of the methods of finding truth from the facts. But this system has been corrupted to an extent that the witnesses have merely become puppets whose threads are with the lawyer.

Moreover since already discussed earlier examination in chief requires a lot of skill, hard work and art. A lawyer who may possess it shall be successful in his endeavor of reaching his aim. But in the entire scenario, what seems to be missing is the sense of justice involved. The technicalities involved and high pressure preparations quite often defeat the entire purpose of the activity, which was to reach the ends of justice.

Moreover the complicated justice system and even more complicated lawyers leave the witnesses baffled, confused, perplexed and lost. The advocate’s object is to elicit all the facts relevant to the case s/he is presenting. How far does the adversarial type of litigation helps the purpose is still something to be ascertained.

Conclusion
An examination in chief must appear fresh, interesting, flowing, and conversational. This sounds easy, but requires a lot of work, research and preparation. The importance of Examination in Chief must never be underestimated. .A strong direct examination is an important building block that can lead to the success at the trial. Direct examination does not exist in a vacuum. It must be part of a coherent story told inside and outside the courtroom.

Effective examination in chief builds on a solid case foundation, and establishes client credibility and judge empathy. Like any performance, it requires good preparation; with the lawyer listening to the client first and then teaching the client how best to present himself.

Last but not least the cross examination is a vital tool in developing the art of court craft and take each occasion as a learning experience and always go for the same keeping the bigger picture in mind.

All the very best and regards

Daksh

A good hard work done by Mr. Dakh in replying the query.

mr daksh , did good job

Art of Cross-Examination

(Late Shri Nageshwar Prasad, Sr. Advocate of Patna High Court)

[ART of Cross-Examination by late Nageshwar Prasad, Sr Advocate and former Judge of Patna High Court edited by Shiva Kant Jha. This is the text of his speech he delivered on 6 June 1969 in a small gathering of officers at the Central Revenue Building, Patna. It was taken in shorthand by Shri Muneshwar Singh, Sr. Stenographer. I could find this text hibernating in the heap of my old papers. I am putting this on this website, treating it as this great lawyer’s blessing for me, and also for the benefit of the young lawyers.]

Before I speak anything on the subject I shall make one request to you on account of may age and recent illness, and that is to permit me to speak sitting. I hope I have your consent to that.

2. You have invited me to give a talk. I won’t call it a lecture, and I would not even call it an address because I must confess I have not come prepared to speak on the subject. I have merely come to you to say something on the art of cross- examination from my experience in life and also from what one gathers from one’s contacts in the profession. I do not claim that I shall be able to give a very thorough or exhaustive talk on the subject. It is bound to be faulty and scrappy, it is bound to be imperfect because it is not the result of a deep preparation but it is the gathering of loose memories and, you know, in the old age memory goes weak, and that in the first causality of old age.

3. Cross- examination, to my mind, is a very fascinating and interesting subject. It is not a science. You may call it an art. A science is that in which human knowledge has been reduced to a state of law, rules, principles, theories and maxims. I am afraid, in cross-examination one will not be able to stick to theories or set rules or even laws guiding the pursuits of cross-examination. It is more or less some sort of a skill, some sort of an art. There are variations in approach by cross-examiners. Some artists excel in rural painting, and some in village scenes, human faces and others in counteracting beautiful buildings. In cross-examination also variation is bound to occur and it depends upon the man who cross-examines. No set of rules or formula is possible to be laid down for the purpose of cross-examination just as you cannot be a swimmer by reading a book. By reading books you cannot be a very good cross-examiner. You have to practise. Those latent qualities are in art which you display. By experience, by your knowledge of human psychology and by you contacts in the world you can be a good cross-examiner. You have to be a good psychologist. You must be able to understand human nature. The mode of cross-examining a timid person will not be the same as to a veteran person. You should be able to understand human nature. You should be able to understand who will react in what way and what you want him to speak out. You may call it that cross-examination is both suggestive and objective way of finding out truth. For the purpose of doing justice it became absolutely necessary to cross-examination persons to find out the truth. For doing justice judiciary is considered to be a very important branch of human civilization. In order to bring people from jungle to society judiciary had to be established. To an individual or even a leader or a king, therefore, justice has been one of the very important functions of our civilized life from the very beginning; and as things have not developed to perfection and they have to come through stages the pursuit of justice naturally has been rudimentary. In finding out truth in some stage of human society people believed that god helped those who spoke the truth. That imagination was of a very crude type which was originally adopted in some country.

4. Trial by ordeal : Justice will go in his favour end punishment will be given by God by burning his finger. Later it was found that innocent persons were also punished. Therefore that practice disappeared and some other things had to be devolved. One method was to contact the two contestants one facing each other end the judge had to ask them to quarrel. One man will say you certainly did so ; you take oath before the Ganges. The judge will go on marking and come to a conclusion. In those day there were no Vakils to do cross-examination. The accused person was allowed to enage some clever relation or some other person to defend. That person used to do cross-examination in a shrewd say and the judge used to form his opinion and decided cases thereby. Cross-examination is necessary to help a judge in discovering the truth. Every body cannot do cross-examination. A party, howsoever truthful and innocent may be, for want of legal knowledge or his mental deficiency is incapable of doing cross-examination. The practice, therefore, arose of employing skilled persons. In England this work was first taken up by missionaries. This was considered to be an act of benevolence. For some centuries it was the missionary who helped in exposing truth before the Judge.

5. You have to apply the art of cross-examination for extracting truth from the adversary. The plaintiff and defendant both have cases and the judge knows what the case of each party is. In civil cases there is not much scope for cross-examination as judgment is mostly based on records. In criminal cases there is scope. Onus is on the prosecution to cross-examine. Therefore in criminal cases cross-examination, I should say, is the most important part of a professional skill which a lawyer has to display if he wishes to give the maximum advantages to his client. As you must have followed my submission on this point, you must have found that the object of cross-examination is both destructive and constructive. You have to judge which will go the benefit of your client and convince the judge that the prosecution’s version is not correct. Therefore cross-examination his two sides-destructive and constructive. You have to demolish the picture which has been presented before the Court. With some witnesses your cross examination may be of constructive type. You have to plead of a private defense in a murder case and you have injury on you side. A good cross-examiner has to train himself both for the purpose of construction or demolition. Now naturally one will ask how to demolish the case of a hardened lawyer. There lies your skill and their lies your art. It will come to you by experience; it will come to you by studies of human nature. Just as tow wrestlers meet in a wrestling arena so you have to meet. Before actual wrestling they try to measure the strength of each other. Similar is the case in cross-examination ; you have to meet like a wrestler. The object of cross-examination is to convince the Judge or the Jury. If you find a weak spot in his mental condition, well, you are able to discover that. A witness speaking falsehood is bound to support one falsehood by other falsehood. The witness has to be very carefully handled. In the case of a very crafty witness find out the weak spot in his evidence, and make that the central focus. In the case of a simple witness the method should be different. As a matter of fact, I am more afraid a simpleton than in the case of a crafty witness. You have to be very careful in the case of a simpleton witness. You have to find out if the witness is of hardened type, novice in the court or a tutored one. In the interest of your own case the lawyer is also enjoined by common sense and reasons to watch your witness. Careful watching brings you unexpected materials in your favour.

The third requisite is an art of camouflage -- art of secreting your real intention. Art of camouflages is very material – and strategic to employ in cross-examination. Your real intention may not be known to the party while cross-examining. Art of hiding your intention is a very successful method in cross-examination. The demeanor of the cross-examiner is also very important just as the demeanor of the witness. The art of concealment of one’s emotions is very important for a cross-examiner. Your have to keep in mind the following to weaken the case of the adversary while cross-examining:-

(1) Are the witnesses, whom the opposite party is brining, independent or impartial, or have they got any bias against the accused. You should gather this information from your client. Partiality has to be challenged. Relationship, if any, has to be connected. You have to question his independence. To an independent witness the cross examination will be of a different type. Powers of memory, imagination, entertaining beliefs of others, etc., have to be kept in mind while cross-examining .

(2) Whether your story is inconsistent with what you stated before. Inconsistency is another test of finding out or sifting truth from falsehood. You have first to study and discover if in a previous statement he is inconsistent.

(3) Test of probability : try to make the case improbable. This is the best test. Build up your case on the line of improbability.

Don’t think that the above three lines are the exhaustive lines of cross-examination. No general thing can be said about that. Different types of cross-examination have to be done. A lawyer has to so train himself from the very beginning that to a Court he should be jack of all trades, though he is master of none. You should pretend to know everything. In order to be able to handle the case for cross-examination you must have studied the case in all ways. You must apply yourself heart and soul to the subject, and then only you can be of help to your client.

You have to be very cautious in cross-examining a child and woman. A child witness can be hammered in a very shrewd way. You must be varied in your modes of cross-examination. A cross-examination must not ask too much. You must know what not be ask. You must know where to stop asking because putting too many questions spoils the case at times.

LINK:www.shivakantjha.org/openfile.php

Shri. Shree Advocate has Submitted practical hints,which could instil energy inJunior Advocates, I suggest that all the junior Advocates should go through the same.  A very good hints been displayed,