Bullying or Badgering Cross or Sharp Examination

Side profile of a lawyer and a witness on the witness stand

It is the duty of Judge to control the cross examination, so as to prevent any gross abuse and to protect a witness from being unfairly dealt with. The authority and to protect a witness from  being unfairly dealt with. The authority given by section 152, Evidence Act, ought to be exercised whenever the occasion arises; nor ought a counsel or a pleader to be allowd to terrify or brow-beat a witness by vociferations or gratuitous sugesstions of falsehood, calculated rather to crush a weak man or to enrage an irascribe one than to elicit the truth.

A witness giving evidence is, prima facie, depends on a circumstances, but it is subject to the general principle that the purpose in view to get out the truth, not to force on the witness admissions that confuse or distort it”.

[Queen v. Sarfuddin, Rat Unrep Cr. 334]

2. Wigmore’s view- Professor Wigmoore remarks:

“An intimidating manner in putting questions so may coerce or disconcert the witness that his answers do not represent his actual knowledge on the subject. So also questions which in form or subject cause embarrassment, shame or anger in the witness may unfairly lead him to demeanour and utterance that the impression produced by his statements does not do justice on his real testimonial value.

There are two of notorious abuses of cross-examination, and always have been, both in the early period when it was still chiefly used by judges only, and also the time of its mature elaboration, more than a century ago, inveterate abuse has been satirized.

3. Unmerited abuse of witness.- Mr. W.D. Evans, in his notes on the french jurist Pothiers, says:

“The abuses to which this procedure is liable are the subject of very frequent complaint, but it would be absolutely impossible, by any but general rules, to apply a preventive to these abuses without destroying the liberty upon which, the benefits above adverted to essentially depend; and all that can be effected by the interposition of the court is a discourgement of any virulence towards the witnesses which is not justified by the nature of the cause and a sedulous attention to remove from the minds of jury the impressions of which are rather to be imputed to the vehemence of the advocate than to the prevarication of the witness. whatever can elicit the actual disposition of the witness with respect to the event, whatever can detect the operation of a concerted plan of testimony, or bring into light the incidental facts and circumstances that the witness may be supposed to have suppressed.

In short, whatever expected may be  supposed to fairly promote the real manifestation of the merits of the cause, is not only justifiable but meritorious. but I conceive that a client has no right to expect from hhis counsel an endeavour to assist his cause, or what is more frequent object, to gratify his passions by unmerited abuse, by embarrassing or intimidating witnesses of whose veracity he has no real suspicion or by conveying an impression of discredit which he does not actually feel; and that where such expectations are intimated there is an imperious duty upon the advocate who, while the protector of private right, is also the minister of public justice, which requires them to be repelled.

It is marvellous how much may be accomplished with the most difficult witness simply by good humour and smile;  a tone of friendliness will often succeed in obtaining a reply which has been obstinately denied to a surely aspect, and a threatening or reproachful voice. As a general rule you should begin your cross examination with an encouraging look, nd manner, and phrase .

Remember that the witness knows you to be on other side; he is prepared to deal with you s an enemy: anticipats badgering; he thinks you are going to trap him up, if you can; he has, more or less, girded himself for the strife.

It is  amusing to mark the instant change in the demeanor of the most witnesses when their own counsel has resumed his seat, and the advocate on the other side rises to cross examination. The position, the countenance, plainly show what is passing in the mind. Either there is fear, or, more often, defiance.

If you look fierce and look sternly, it is just what had been expected, and you are met by corrosponding acts of self-defence. But if, instead of this, you wear a pleasent smile, speak in a kindly tone, use the language of a friendly questioner, appear to give him credit for a desire to tell the whole truth, you surprise, you disarm him; it is not what he had anticipated, and he answers frankly your questionings,”

Where sharp tone needed.___ There are occasions where a sharp tone and an appropriate expression of force are called for in order to produce the desired effect. it can only be successfully employed by advocates of outstanding merit.

The following extract from ‘O’ Brien’s life of Lord Russel, will clearly illustrate the point; ” Once, when cross-examining a witness by the name of witness a question which he did not answer. ‘ Did you hear my question? said Russel  in a law voice. ‘ I did’, said Sampson. Did you understand my question? said Russell in a low voice. ‘I did’, said Sampson ‘Then’ , said Russell raising his voice to its highest pitch, and looking as if he would spring from his place and seize the witness by the throat, “Why have you not answered it? Tell the jury why you have not answered it’ A thrill excitement ran through the court room. Sampson was overwhelmed, and he never pulled himself together again.

The sound  rule is that the counsel should be rough to the ruffian and thunderbold to the liar and merciful to the mind.

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