Report No. 69

Chapter 77

Examination and Cross-Examination

Sections 137-138

I. Introductory

77.1. Introductory.-

In the adversary system of trial, which has been adopted in India, a judicial proceeding is a contest between parties. The court does not take the initiative in collecting evidence. Nor does a person who claims to be acquainted with the facts in dispute come to the court and communicate his knowledge to the court unaided. The parties take the initiative. The medium through which oral evidence is presented is the witness. But the use of that medium is only at the instance of the parties. And since, in the adversary systems, the procedural rights of both parties have to be dealt with, it becomes necessary to demarcate the boundaries of the use of the witness-the medium-by each party, and to regulate the nature of "examination" by the parties. That, in brief, is the reason why detailed previsions on the subject appear in the Act.

II. Definition and Scope

77.2. Order and scope of each examination.-

The subject of examination of witnesses is spread over a number of sections, it will be convenient to consider the first two sections relevant to the subject-sections 137 and 138-together. Section 137 provides that the examination of a witness by the party who calls him shall be called his examination-in-chief. The examination of a witness by the adverse party shall be called his cross-examination. The examination of a witness by the party who called him, subsequent to the cross-examination, shall be called his re-examination. These are the principal types of examination. They are not exhaustive. After re-examination, there could be re-cross-examination, if new matter is introduced in re-examination, and so on.

77.3. The chronological order of the various types of examination is as follows:

Section 138 provides that "witnesses" shall be first examined-in-chief, then (if the adverse party so desires) cross-examined, and then (if the party calling so desires) re-examined. The plural "witnesses", though legally in order,1 is not expressive of the practice. What happens in practice is that each witness is first examined, then cross-examined and then re-examined, it is not the practice first to hold the examination-in-chief of all witnesses and then to cross-examine them. Sometimes, in criminal cases, the cross-examination of prosecution witness may be postponed; but the general position is as stated above.

In the same section, the scope of each type of examination is dealt with. The examination and cross-examination must relate to relevant facts, but the cross-examination need not be confined to the facts to which the witness testified in his examination-in-chief. The re-examination shall, however, be directed to the explanation of matters referred to in cross-examination; and, if new matter, by permission of the Court, is introduced in re-examination, the adverse party may further cross-examine upon that matter.

1. See the General Clauses Act.

77.4. Cross-examination-Object of.-

Of these three types of examination, cross-examination plays a major role Usually, the object of cross-examination is stated to be two-fold; (a) to destroy the credit and credibility of the witness, and (b) to secure on matters not touched in the examination-in-chief answers favourable to the party cross-examining. But (b) is itself an object of a complex character. A party cross-examining would like-(c) to secure contradiction of what has been stated by other witnesses, and (d) to get support for, and confirmation of, statements made by other witnesses which are favourable to the party cross-examining.

77.5. Impeaching credit of one's own witness.-

As to impeaching the credit of a witness, it is to be noted that a party calling a witness cannot impeach the credit of that witness, unless permitted by the court to do so.1 It is generally stated that the reason why the party calling a witness to testify under examination-in-chief, is not permitted to impeach the witness is that that party generally vouches for the credibility of that witness. It should be noted, however, that this assumption has not gone unchallenged. And, in some countries, a different practice prevails. For, example, in the U.S. Federal Rules, rule 607 provides as follows2-

"607. The credibility of a witness may be attacked. by any party, including the party calling him."

The Advisory Committee's Note on this Rule explains the departure from the traditional rule in these words:

"The traditional rule against impeaching one's own witness is abandoned as based on false promises. A party does not hold out his witnesses as worthy of belief, since he rarely has a free choice in selecting them. Denial of the right leaves the party at the mercy of the witness and the adversary. If the impeachment is by a prior statement, it is free from hearsay dangers and is excluded from the category of hearsay under rule 801(d)(1).

"The substantial inroads into the old rule, made over the years by decisions, rules and statutes are evidence of doubts as to its basic soundness and workability."

The Note then proceeds to refer to certain case law as also to Revised Rules 32(a)(i) of the Federal Rules of Civil Procedure (allowing any party to impeach a witness by means of his deposition), and Rule 43(b) (allowing the calling and impeachment of an adverse party or person identified with him). Illustrative statutes allowing a party to impeach his own witness under varying circumstances are also referred to as also Uniform Rule 20; California Evidence Code, Section 785; Kansas Code of Civil Procedure, Section 60-420 and New Jersey, Evidence Rule 20.

1. Section 154.

2. Rule 607, Rules of Evidence for U.S. Courts (1974) 34 Lawyers' Edn. 2nd 133.

III. History

77.5A. Cross-examination is that phase of the trial which has the potentiality of being the most spectacular. It affords the opportunity for the most successful employment of an aptitude for quick thinking, sharp repartee and dramatics.1

Unless the judge is alert and vigilant, cross-examination may sometimes turn into an engine of torture. We shall make certain observations as to the role of the judge in this regard at the appropriate place.2

1. Keeton Trial Techniques and Methods, (1954), p. 87.

2. See concluding chapter.

77.6. History.-

The use of cross-examination as a weapon for the discovery of truth is not of recent origin. In the Bible,1 the story of Sussanna and the Elders furnishes an example of its use for the purpose of discovering the truth. Sussanna was charged with adultery in the garden and the charge was made by two Elders, the allegation being that adultery had been committed with a young man. In order to test the veracity of the charge which cast an imputation on a lady of great virtue and beauty. Daniel considered it necessary to examine separately the two witnesses and asked each of them under which tree the adultery had been committed.

The answer of one was the Mastic tree, while the answer of the other was holm tree. This discrepancy was sufficient to discredit their story and the result was that instead of Sussanna being punished for the alleged adultery which was a capital offence, the two witnesses were sentenced to death for perjury. Among the Greeks, cross-examination of witnesses was permissible at least a hundred years before Christ.2 Even in earlier Greek law, something in the nature of cross-examination was known, though it was restricted to the parties.3

During the Roman period, we come across a celebrated passage in a book on rhetoric by the famous Quintillion, who was a rhetorician and occasionally also appeared as a preacher.4

Coming nearer to our own times, we may note that in two noted passages of fiction, cross-examination has been mentioned and the inveterate abuse of cross-examination has also been satirilized.5

1. Book of Daniel.

2. Wigmore Panorama of the World's Legal Systems, 317, quoted in Nokes Introduction to Evidence, (1967), p. 17.

3. Jones The Law and Legal Theory of the Greeks, (1956), p. 140, cited in Nokes Introduction to Evidence, (1967), p. 7.

4. Quintilian Institution Oratoria (the teaching of oratory), Lib. V., Chapter 7, quoted in Best on Evidence and also in Meer Sujad Ali v. Kashee Nath, 6 WRC 181 (182, 183).

5. (a) Dickens The Pickwick Papers, Chapter 24; (b) Anthony Trollope The Three Clerks, Chapter 40.

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