The blog/article is written by Vishakha Girhe, Learning Manager, Lawctopus Law School
“Yes,” says the witness. You have the answer you wanted. But what next?
This is where a useful admission gets lost and many young advocates keep asking questions. Effective cross-examination is not about asking more questions. It is about knowing what you need from the witness, asking questions that move you towards that point, and stopping when you have got what you need.
Try to get them to say the same thing again. Or give the witness a chance to explain the answer.
Once the witness is in the box, the quality of your cross-examination depends on how well you can translate that preparation into a series of useful questions. The real skill is to prepare thoroughly and then to listen very carefully to what the witness actually says.
Before You Ask the First Question, Know What You Want
Think of a simple money-recovery action. The plaintiff also alleged that the defendant received Rs. 5 lakh in cash. The plaintiff’s witness-in-chief says, “I was there when the payment was made.”
If you ask the witness right away, “Did you see the payment being made?” the witness will likely say yes. You asked a question, but you didn’t necessarily help your case.
Instead, figure out what you want to establish first. Was the witness really there when the payment was made? Where was the witness seated? Who else was around? Was the transaction visible to the witness? Was a receipt written? Was the payment logged anywhere? When did the witness first talk about the payment? Most importantly: Does the witness have firsthand knowledge of the transaction?
If the witness was at the reception desk and the alleged payment happened inside the manager’s cabin, your questions can bring that fact up slowly.
You can say, ‘You were here in the office that afternoon?’ “You worked at the reception?” The payment was said to have been made inside the manager’s cabin? “You were at the reception?” “You didn’t go in the cabin?” “So you didn’t actually see the money change hands, then?”
The questions are short but each one has a job to do. The witness’s own answers by the end of the sequence have helped to establish that their evidence about the payment may not be from personal observation.
This is why you should start cross-examination with the objectives. Before you start forming your questions you should know what point you want to make, what evidence you have to back it up and what answer you need from the witness. This also helps you avoid preparing 50 questions simply because the witness is likely to be in the box for a long time.
Cross-examination means examination of a witness by the other party as per the Bharatiya Sakshya Adhiniyam, 2023 (BSA, 2023).1 It also allows cross-examination on matters relevant to the issues but outside the scope of the examination-in-chief. This gives the advocate the opportunity to test the witness’s account and the underlying facts, whilst keeping the questions related to matters of relevance.
It helps to think about each question in terms of what it is supposed to do. Perhaps you want an admission, a contradiction or a concession. If a question is not serving any of these purposes, then ask yourself if it deserves a place in your cross-examination.
Section 146 of the Bharatiya Sakshya Adhiniyam, 2023 defines a leading question as a question that indicates the answer expected from the witness by the person asking the question and allows such questions to be asked in cross-examination.2 Their value is control. Instead of asking a witness to explain an entire event, you can walk them through one fact at a time and build the larger point through their answers.
Use the Documents to Test the Witness’s Version
Another effective cross-examination technique is to put the witness’s oral version alongside the documents on record. A witness can confidently tell the court that something happened “immediately”, “on the same day” or “in his presence”. Your documents might say differently.
Say a commercial dispute, and the witness says “I immediately told the defendant of the breach”. You have an e-mail showing that the first communication referring to the alleged breach was sent three weeks later. The idea is to show the email and say, “It’s not true that you told him right away, is it?” Now the witness gets a chance to explain. They may say they told the defendant orally and followed it up by email and used “immediately” in a general sense.
A safer approach is to set up the surrounding facts first. You may inquire if the witness discussed the transaction with the defendant, if email was the usual form of communication, if the witness had the defendant’s email address, and if emails about the transaction were kept.
Then you could bring the witness to the date in question and ask whether any email had been sent on that date. Finally, it can be determined that the first email mentioning the alleged breach was sent three weeks later.
Now the document has a purpose. You have proved the facts by the answers of the witness before you have impeached the witness with the record.
The BSA, 2023 makes provision for cross-examination in respect of previous statements made in writing or reduced into writing. The relevant part must first be brought to the notice of the witness before the writing is proved for that purpose if the advocate intends to contradict the witness by such a statement.3
The practical lesson is simple: know exactly what the document says and know exactly which bit of it matters before you put it to the witness.
This is why it’s so important to read the case file before cross-examination. The plaint may have one version, the affidavit another, and the correspondence a third. The dates can help identify gaps that are not easily detected when the documents are read in isolation.
Suppose a witness testifies, “I know the defendant got the goods.” You check the record and see that the witness was employed at another branch at the time of the delivery. The signature on the delivery challan is of some other person. The witness’s knowledge may thus be based on what someone told him/her rather than on personal observation.
That difference can be seen through your cross-examination with simple questions about where the witness was posted, where the goods were delivered, whether the witness was present, whether they signed the delivery record, and how they came to know about the delivery.4
The aim is not to make the witness confess to lying. The point is to put enough facts before the court so the court can assess the reliability and weight of that evidence.
At the same time, the witness can give you something that you did not expect. Suppose you say, “You didn’t see the accused at the place?” And the witness says, “I didn’t see him at first, but afterward I saw someone who resembled him standing by the gate.” Your prepared sequence is now modified. You have a new factual lead.
You might want to ask when the witness saw the person, for how long, how far away they were, what the lighting was like, whether their view was obstructed, whether they had known the accused before, and whether any identification was taken.
The witness’s surprising answer has opened up a new line of inquiry. Good cross-examination is when the advocate recognizes that opening is important rather than going back to the prepared list on a mechanical basis.
Know When to Push and When to Stop
Young advocates usually link effective cross-examination with aggression. In practice, control is usually more valuable than confrontation. The witness may disagree with your proposition, give a lengthy answer, say that they do not remember something or offer a new explanation. Your task is to understand what the answer has added to the record and decide what to do with it.
Suppose you ask, “You were not present when the payment was made?” The witness says, “No, I was not.” If your objective was to establish that the witness did not personally see the payment, you may already have the answer you needed.
The aim is to continue: “So you have no personal knowledge?” “You only heard this from the plaintiff?” “You cannot confirm the payment?” Each additional question creates another opportunity for the witness to qualify the admission.
The witness might respond, “I was not inside the cabin, but I saw the defendant come out holding cash.” You have now allowed the witness to add a fact that may help the other side. Sometimes the best cross-examination is the one that ends immediately after the useful answer.
The same principle applies when a witness gives a long answer to a short question. Listen to the answer before deciding your next question. The extra sentence may contain an admission, a new fact or a contradiction with another part of the witness’s evidence.
Cross-examination becomes much more effective when you respond to what is actually said rather than simply reading out the next question in your notebook.
The law also recognises the need for restraint. The Bharatiya Sakshya Adhiniyam places restrictions on questions intended to insult or annoy the witness and on questions asked without reasonable grounds. A courtroom exchange can be firm without becoming personal. The purpose is to create a clear and useful evidentiary record.
This is also why preparation should leave room for judgment. Read the pleadings and affidavits carefully. Mark important dates. Identify contradictions between the documents and the witness’s version. Understand the witness’s relationship with the parties. Separate facts that the witness personally observed from facts they learned from somebody else. Keep the important documents ready. Most importantly, decide which points actually matter to your case.
Then, When the Witness Gets In The Box, Listen
A prepared cross-examination gives you a direction. It does not require you to follow the same route regardless of what transpires in the witness box. Sometimes the witness will give you the admission right away. Sometimes a document will open a whole new line of questioning. Sometimes the witness will give an answer that makes you slow down and get into the details. And sometimes you will find that the point you had meant to set forth is already on record.
At its heart, cross-examination is about preparation, judgment and listening. The advocate who knows the case well can see which answer is important, which document can test it, and when enough has been made out. That’s what makes an effective cross-examination a list of questions.
The advocate who knows the case well can see which answer matters, which document can test it, and when enough has been made out. But that kind of courtroom judgment is built through practice, not just theory.
If you’re confused about how to become industry-ready and build practical litigation skills, upskill with Lawctopus Law School’s Civil Litigation & Drafting course, where you learn civil proceedings, pleadings, evidence affidavits, interim applications and drafting through practical assignments and feedback.
Prefer learning in Hindi? Explore the Civil Drafting in Hindi course.
Call +91 93596 84056 for a free counselling call or write to courses@lawctopus.com to find the right course for your career stage.
References
- THE BHARATIYA SAKSHYA ADHINIYAM, 2023 NO. 47 OF 2023, https://www.mha.gov.in/sites/default/files/2024-04/250882_english_01042024_0.pdf. ↩︎
- The Bharatiya Sakshya Adhiniyam 2023, No 47 of 2023, Section 146, India Code. ↩︎
- The Bharatiya Sakshya Adhiniyam 2023, No 47 of 2023, Section 142-143, India Code. ↩︎
- The Bharatiya Sakshya Adhiniyam 2023, No 47 of 2023, Section 152-155, India Code. ↩︎
About the Author
Vishakha Girhe is a Learning Manager at Lawctopus Law School. She holds an LL.M. in Business Laws and has practised as an independent litigator at the Nagpur District Court and Bombay High Court, Nagpur Bench.
