Privileges Of Witness and Role of The Court During Cross-Examination

PRIVILEGES OF WITNESS AND ROLE OF PRIVILEGES OF WITNESS AND ROLE OF THE COURT DURING CROSS-EXAMINATION By Asadullah Memon, Advocate Supreme Court of Pakistan (Surah Al- Baqarah, Ayat 2: 42) Do not mix truth with falsehood or hide the truth knowingly. Cross-examination is the most important phase of any judicial procedure. I've been involved in the legal process for the past 25 years, and throughout that time, I've faced several problems that have had a beneficial impact on me since they've taught me and helped me achieve great things. Before I go any further, I'd want to give the next generation of legal professionals a rudimentary introduction to the notion of cross-examination. Cross-examination is the process of questioning a witness who has already testified or freshly testified, frequently followed by a re-direct examination, in order to confirm or discredit their testimony, knowledge, or credibility. Cross-examination originated in ancient Rome and has since become the most prominent feature of the contemporary common law system. Let's take a look at five reasons why cross-examination is so vital in every trial. Right to a Fair Trial: Cross-examination is a basic right that allows the accused and in civil cases the plaintiff and defendant to examine and refute opposing witnesses' testimony. Seeking the Truth: Cross-examination is a legal instrument for distinguishing falsehoods from the truth. Accuracy Determination: Cross-examination aids in determining the accuracy of a witness's testimony by demanding attentive hearing and meticulous refutation of any inconsistencies with the facts. Cross-examination can ascertain a witness's credibility by addressing areas that call their sincerity and truthfulness into doubt. Tests Reliability: Cross-examination can question the veracity of a witness' testimony, ensuring that the evidence is true, trustworthy, and fair. Now let's shed some light on the types of cross-examinations. There are 10 types of cross-examinations. 1. Impeachment cross-examination: Impeachment Cross-examination is a technique used to undermine a witness' evidence by exposing discrepancies, contradictions, or lies. Its goal is to make the judge question the witness's credibility. Common approaches include presenting the witness with contradictory statements, revealing bias or a reason to lie, challenging their perception or recall, and evaluating their character for veracity. This strategy is useful in a variety of situations, but it must be used responsibly to weaken the witness's evidence only to the point where it is untrustworthy. 2. Clarifying cross-examination: Clarifying cross-examination is a legal strategy employed by lawyers to guarantee that a trier of fact comprehends a witness' testimony. It entails addressing inquiries to explain discrepancies or gaps, such as words or particular occurrences. Open-ended inquiries, clarification requests, summaries, leading questions, and visual aids are all common strategies. 3. Suggestive cross-examination: Suggestive cross-examination involves the cross-examiner suggesting answers or influencing a witness's memory, but is generally prohibited due to potential bias and misleadingness. Common techniques include leading questions and hypothetical questions. Improper use can lead to challenges and court inadmissibility. 4. Hostile cross-examination: Hostile cross-examination is a court-approved tactic for questioning a witness' credibility and exposing biases. It is typically permissible, but it should be used with caution, and only if there is a compelling reason to believe the witness is lying or suppressing facts. Common strategies include asking leading questions, employing confrontational language, and questioning motivations. 5. Limited cross-examination: Limited cross-examination is a court-approved approach in which cross-examiners restrict inquiry to specific aspects of a witness's evidence in order to avoid extraneous or repetitive inquiries. It protects witnesses from intimidation, eliminates extraneous evidence, and guarantees a fair trial. Techniques include preparing questions, obtaining clarification, asking leading questions, sticking to facts, and reacting to replies. 6. Narrative cross-examination: Narrative cross-examination allows a witness to describe their tale in their own words, which is commonly used to obtain favorable testimony. Open-ended inquiries, attentive listening, narrative fragmentation, and redirection are all common strategies. 7. Rehabilitation cross-examination: Rehabilitation cross-examination is a legal approach used by lawyers to restore a discredited witness's credibility, with the goal of mitigating the harm caused by opposing counsel's cross-examination using strategies such as explanation and corroboration. 8. Substantive cross-examination: Substantive cross-examination is an important technique for lawyers in civil and criminal cases, as it aims to offer a full and convincing picture of events, perhaps influencing the trier of fact to favor the client's position. 9. Expert testimony: Cross-examining expert testimony is used by lawyers to assess credibility and trustworthiness, as well as to challenge viewpoints, expertise, contradictions, and prejudice. Establishing qualifications, questioning ideas, and clarifying technical concepts are all techniques that might be used to persuade judges. 10. Explanatory cross-examination: Explanatory cross-examination is a critical approach used by lawyers to clarify confusing testimony, preventing misconceptions and misinterpretation, and is frequently combined with other tactics to offer a thorough case. As I previously stated, cross-examination is a critical ability for lawyers to obtain truth or cast doubt in cases. It began in the sixteenth century and has developed throughout time. Mastering the art of cross-examination is critical for success in court, but not all lawyers are proficient. Cross-examination is a crucial phase in a trial, but many lawyers overlook its importance. It should be brief, challenging inaccurate responses and focusing on specific topics. Inexperienced lawyers may over explain hostile testimony, leading to unnecessary cross-examination. Cross-examination should be controlled, with specific questions and challenges to undermine credibility. The courtroom should be like a play, with cross-examination providing dramatic effect without being overly dramatic. To discredit a witness, evaluate their dependability, ability to recognize and pronounce, veracity, admissible evidence, and behavior during cross-examination. Focus on the witness's dependability, ability to comprehend and articulate, and sincerity, rather than harping on every tiny error. Consider acceptable direct and corroborative evidence and how to utilize them to depose a witness. Avoid emphasizing on tiny errors that make your case appear weak. Cross-examination in credit matters is permissible, but should be handled with discretion. Questions that expose wrongdoing and humiliation should not be used to bring shame. Investigations into private life or family infelicities should be prohibited since they may result in misery and torture. Honesty is the greatest policy for both advocates and people. The appropriateness of cross-examination can become a major issue, as indignation may be disliked by the judge, and counsel should avoid asking questions that dishonor not just the witness but also innocent people and against the fundamental rights of witness. Let us now take a brief look at the witnesses in order to evaluate the credibility of the people we observed testifying in court and prepare them for cross-examination. In law, anybody can testify in a criminal or civil action, with competency decided by their capacity to deliver information. However, there are exceptions for minors under the age of 14, those with mental disorders, and those being tried concurrently. In a criminal trial, the accused cannot be forced to testify, but they can be cross-examined by the prosecution. If co-accused are being tried together, they may be made to testify. Former spouses can testify about offenses done after their separation, but they cannot testify against the accused concerning offenses committed while they were still married. The legal procedure sometimes includes extensive cross-examination, which is an important part of adversarial hearings. However, norms exist to assure relevance, emphasis, and fairness. Courts may step in to avoid excessive repetition or inquiry irrelevant to the case. Judges may limit cross-examination if it becomes cumbersome or dangerous. The court determines the appropriate balance between cross-examination and fair procedures. The superior courts ruled out that excessive cross-examination is not permissible since it is a bullying strategy. The higher courts also hold that cross-examination in judicial proceedings should be conducted respectfully, without bullying or intimidation. Rules exist to prevent abuse, such as badgering or asking irrelevant questions. Cross-examination should be professional and thorough, with judges having the authority to intervene as necessary. The goal is to uncover the truth, uphold justice, and safeguard the rights of all parties involved but it does not at the costs of humiliating the witness. During legal proceedings, witnesses should be handled with care and respect, and aggressive questioning methods should be avoided since they may frighten or disturb them. This method promotes a cooperative environment and permits witnesses to provide accurate testimony. Judges play an important role in guaranteeing this, and legal professionals must act responsibly. Treating witnesses gently is an issue of legal principle, human decency, and compassion, all of which contribute to the judicial system's integrity. In civil proceedings, the term 'document' refers to textual material such as documentary exhibits, video recordings, electronic records, films, photographs, and images. It excludes judicial notes and court administration materials. In a criminal case, it includes writing, information recorded or stored, labels, books, maps, blueprints, graphs, drawings, and visual pictures on various media. The term 'document' does not refer solely to court files or electronic forms.There are usually three main purposes in cross-examining on documents:(1) Proving a document that you want to tender; (2) Proving a fact in a document, without necessarily tendering it; and (3) Using a document to discredit a witness. The rules of cross-examination on documents are complex and technical and Cross-examination is a crucial process that uses documents to support or refute claims made by witnesses or opposing parties. Key aspects include factual accuracy, credibility, materiality, admissibility, corroboration, contradiction, foundation, impeachment, expert testimony, and legal standards. Strategic use of documents involves thorough preparation, timing, clarity, and focus. Steps in cross-examining include reviewing documents, introducing them, laying foundation, questioning, impeachment procedure, maintaining control, and using exhibits. Adhering to these guidelines can strengthen the case and challenge opposing witnesses' credibility. During cross-examination, some lawyers only rely on the relevant parts of the documents they cross-examine. There is a fundamental principle of interpretation of the documents that was established by the superior court. The notion that "documents should be read as a whole" is essential in legal interpretation and contract law. It facilitates document interpretation in relation to one another, which helps to reduce misinterpretation, promote consistency, and eliminate inconsistencies. Interpreters should study the full document, detect relationships, pay attention to contextual cues, and think about the overall intent. Before I continue, I would like to share my personal observation that most lawyers, when questioning a witness under cross-examination about the documents, tend to focus only on a single paragraph of the documents and overlook the fundamental principle of how the documents should be interpreted, constructed and read in its entirety. It was held by the larger bench in 1995 SCMR 1505 that "in construing the document one has to read the same as whole and not by picking and choosing a particular paragraph or portion thereof." A document has to be read as a whole, as it was held by the superior courts in his Judgment (PLD 2003 SC 215) that the documents should be read as whole, as the fundamental principle of the interpretation of the documents is that no provision of the document be read in isolation or in bits and pieces, but the entire document is to be read as a whole to gather the intention of the parties, that the Court, for this purpose, can resort to the correspondence exchanged between the parties, and that the Court shall lean to an interpretation that will effectuate rather than one that will invalidate an instrument. Now, a quick summary of the witness. A witness is an individual who testifies in a legal proceeding, such as a trial or hearing, providing firsthand accounts of events, presenting documents or evidence, or offering expert opinions. There are different types of witnesses: Lay Witnesses, Expert Witnesses, Character Witnesses, and Hearsay Witnesses. Lay witnesses have firsthand knowledge but are not experts in a specific field, Expert Witnesses provide specialized opinions, Character Witnesses testify about a party's character, and Hearsay Witnesses testify about statements made outside court. Witnesses play an important role in both criminal and civil proceedings, giving evidence, corroboration, establishing credibility, testing defenses, and delivering expert views. They offer personal recollections of events, identify the criminal, and supply important facts, which help the prosecution's case. In civil proceedings, witnesses establish facts by testifying about events, transactions, or other important topics, assisting judges or juries in understanding and deciding the case's merits. They can support claims or defenses, substantiate legal claims, and fulfill the burden of proof. Expert witnesses can give specialized expertise or perspectives on complicated issues, assisting in informed decision-making. Witnesses are the most significant aspect of any trial, whether civil or criminal. Witnesses in Pakistan have essential rights to fair treatment and protection within the judicial system, as guaranteed by the Constitution and the Code of Criminal Procedure. These rights include protection against intimidation, fair treatment, privacy, legal help, compensation, and cross-examination. Witnesses have the right to be heard, their evidence reviewed, and their credibility evaluated without bias or discrimination. Legal assistance services may be offered to persons who cannot afford representation. In order to maintain equity and justice throughout the judicial process, the court must shield witnesses from drawn-out and pointless cross-examinations. Time management, relevance assurance, shielding witnesses from intimidation, guarding against badgering, and keeping control over lawyer behavior are all included in this. The obligation of the court to maintain impartiality and respect for witnesses must be balanced with the need for a comprehensive examination. In order to preserve justice and the welfare of the witness, the court may step in and restrict the scope of inquiry if cross-examination becomes too drawn out or abusive. The article discusses the impact of extensive cross-examination on wisdom and the court's role in handling it. It criticizes Pakistan's outdated laws for issues like intimidation, insufficient protection, delays, poor representation, and bias. To address these issues, Pakistan should develop comprehensive programs, streamline procedures, offer training, use technology, empower judges, and specially train them for taking and dealing with the proceedings at the time of evidence. Likewise, the advocates are also equally trained; they are not parties; they are only skilled people to extract and unearth the truth and assist the court, and they should not humiliate the witness by putting un-necessary and un-relevant questions through lengthy cross-examination.