LAW PAPER: PROFESSIONAL ETHICS AND PROFESSIONAL

ACCOUNTING SYSTEM

TOPIC: ROLE OF LAWYER AS OPPOSITION: WITH SPECIAL

REFERENCE TO CROSS EXAMINATION OF VICTIM

NAME: JOYITA GHOSH

ROLL NO.: 1982049

STREAM: BBA LLB

SECTION: A
 Role of Lawyer as Opposition: with special reference to cross examination
of Victim

Introduction

Crimes are acts or omissions that harm individuals and are considered offenses against the
state1. The criminal justice system aims to uphold the rule of law, ensure societal order, and
provide fair and timely trials for offenders. However, it often faces criticism for its loopholes
and lengthy legal processes. The system tends to prioritize the rights and interests of the
accused over those of the victims, operating on an accusatory rather than inquisitory basis.

The criminal justice system comprises judges, prosecutors, and defense counsel, each with
distinct roles. Judges make rulings based on evidence presented by both sides, while
prosecutors bear the burden of proving the accused's guilt. Defense counsel, representing the
defendant, do not bear the burden of proof and uphold the presumption of innocence.

In recent years, there has been a significant shift in the perception of defense counsel in the
criminal justice system. Previously stigmatized, defense lawyers were often associated with
their clients, especially in high-profile cases. However, as societal understanding of crime
and criminal defendants evolves, defense lawyers advocating for the rights of marginalized
individuals are increasingly respected for their noble pursuit of justice.

Defence lawyer

A defense counsel represents both individuals and corporations in legal proceedings when
they are suspected or charged with unlawful activities 2. These lawyers possess extensive
knowledge of the law and court procedures and can be appointed by the court if the defendant
cannot afford one. They work closely with their clients to negotiate favourable outcomes and
minimize the consequences of the alleged offense, striving to prove their client's innocence.
The defense lawyer's role is to present the best possible options for their clients, aiming to
keep them out of jail or mitigate future troubles, particularly in juvenile or family court cases.

1
Crime | Definition, History, Examples, Types, Classification, & Facts | Britannica, (2024),
https://www.britannica.com/topic/crime-law (last visited Apr 6, 2024).

2
EduLaw, Role of a Defense Lawyer in a Criminal Proceeding | Edu Law,
https://portal.theedulaw.com/SingleNotes?title=role-of-a-defense-lawyer-in-a-criminal-proceeding (last
visited Apr 6, 2024).
They challenge the prosecution by putting it to the burden of proof, scrutinizing the evidence
and procedures to determine if the prosecution has a strong case. Without the assistance of a
defense lawyer, defendants are often unable to effectively challenge the prosecution, making
them vulnerable in court. Defense lawyers leverage their knowledge of legal tactics to seek
reduced sentences, secure mistrials, or have cases dismissed. They also have the ability to
negotiate settlements outside the courtroom.

Defence Lawyers work on various types of cases, from low-profile matters in local
jurisdictions to high-profile federal court cases. Some specialize in international law,
handling immigration or internet-related crimes.

Role and responsibility of Defense Lawyer3

Defense lawyers are the individuals who defend the people who have been accused of a crime
or an offence like rape, murder, theft, domestic violence and other such types. They help in
research, analyse the case and present their findings in the court before the judge against the
prosecutor and they put a lot of effort to gain the defendant's freedom and prove his
innocence and negotiate plea deals or settlements.

Their responsibility ranges from investigating the whole case, collecting evidence,
negotiating plea deals, managing bail, handling media responsiveness through a press release
or conferences. They also get the client acquitted or gets the charges dropped. It is one of the
duty, while in a trial, to create rational distrust in the minds of the jurors by introducing
exculpatory evidence or discrediting the witness or by bringing new witness testimony which
might change the whole case. They are only acceptable only if they are gathered legally and
ethically. For doing these, he needs to be quite skilled in criminal pleadings, quick to think,
effective and efficient in drafting motions, scrutinising the shreds of evidence, interviewing
clients.

3
EduLaw, supra note 2.
Cross-examination

Cross-examination is integral to trials, serving to challenge the prosecution's case and

question the credibility and reliability of their witnesses 4. Examination is the process of
asking relevant questions to a witness about the facts in question. There are three types of
witness examination: Examination in Chief, Cross-examination, and Re-examination. These
procedures are governed by the Indian Evidence Act, 1872, which outlines how witnesses are
examined in both civil and criminal cases.

In civil cases, the plaintiff initiates the examination, while in criminal cases, it is the
prosecutor or complainant who begins. When the party who called the witness questions
them, it's called Examination in Chief. When the opposing party questions the witness, it's
called Cross-examination.

Examination in Chief allows the party who called the witness to present their testimony and
establish their version of events. Cross-examination, conducted by the opposing party, aims
to challenge or clarify the witness's testimony. Re-examination occurs if necessary, allowing
the party who called the witness to address any issues raised during cross-examination.

Purpose :

1. Identifying Testimony Discrepancies: Defense attorneys scrutinize prosecution

witnesses' testimony for inconsistencies, gaps, or biases to undermine credibility. This helps
to weaken the prosecution's case by showing that the testimony may not be entirely reliable
or accurate.

2. Challenging Witness Credibility: Attorneys question motives and biases to challenge the
trustworthiness of prosecution witnesses. By casting doubt on the trustworthiness of the
witnesses, attorneys aim to weaken the prosecution's case overall.

3. Establishing Alternative Narratives: Defense lawyers introduce contradictory evidence

or perspectives to create reasonable doubt and weaken the prosecution's case. By introducing
different perspectives or evidence that contradicts witness testimonies, lawyers aim to create

4
Mastering The Art Of Cross-Examination: A Practical Guide For Lawyers,
https://www.legalserviceindia.com/legal/article-12629-mastering-the-art-of-cross-examination-a-practical-
guide-for-lawyers.html (last visited Apr 6, 2024).
reasonable doubt in the minds of jurors. This helps to weaken the prosecution's case by
offering alternative explanations or raising uncertainties about the events in question.

Aim of Cross Examination

Cross-examination serves to challenge the accuracy, credibility, and significance of a

witness's testimony given during their direct examination. It allows the cross-examiner to
delve into the details provided by the witness, uncover any inconsistencies, or reveal any
undisclosed information that could bolster their case.

The objectives of cross-examination vary depending on the type of witness:

For a fact witness (non-expert):

 Extracting favourable information.

 Questioning the reliability and accuracy of the testimony.

 Challenging the credibility of the witness.

 Using the witness to support your own case or discredit the opposing party's case.

For an expert witness, in addition to the above aims:

 Limiting the scope of the expert's testimony.

 Identifying areas where the expert's knowledge may be lacking.

 Reviewing relevant documents.

 Questioning the credibility of the expert's opinion based on inadequate data,

unscientific methods, or arbitrary assumptions.

 Attempting to alter the expert's opinion to minimize its impact.

 Establishing the credibility of your own expert witness.

Principles of cross examination5

5
Id.
1) The opposing party must have a fair chance to cross-examine.

2) Cross-examination is typically reserved for the opposing party, but if a witness becomes
hostile, the party calling them can also cross-examine, as per Section 154. A co-defendant
may be subject to cross-examination if their interests conflict with those of the defendant.

3) Conducting cross-examination without first conducting an examination-in-chief is not

allowed, as per Section 138.

4) If evidence obtained by the police during interrogation is prejudicial to the accused, cross-
examination without prior examination-in-chief may be permitted.

5) The absence of counsel on the scheduled date doesn't prevent a party from recalling a
witness for cross-examination.

6) Failing to present a witness for cross-examination after their examination-in-chief may

damage the credibility of their testimony.

7) The court can intervene and ask questions if a witness appears confused during cross-
examination.

8) Cross-examination is conducted orally, in real-time.

9) If the opposing party fails to challenge any statement made by a witness during
examination-in-chief, that fact may be considered undisputed after cross-examination.

10) If the opposing party chooses not to cross-examine, they cannot later raise objections
about it.

Assignment of case

A defence lawyer either gets clients who directly contact them or gets contacted by the court.
Some are public defenders and some are appointed hired by private firms and some do
autonomous legal office that they run themselves. Public defenders incline to get remunerated
less income than any independent or private lawyers and also there is incline to be a greater
caseload due to the recommendation process and the pay coming from persons other than
respondents. In rare cases, the court of law might assign private lawyers to a specific case.
Interviewing the case

1. Confidentiality: Attorney-client conversations are confidential, allowing the client to

freely discuss details of their case. This helps the defense lawyer understand the case's
strengths and weaknesses, aiding in trial preparation.

2. Informing Privileges: The defense attorney informs the respondent of their privileges,
such as the right to remain silent, ensuring they understand and can benefit from them.

3. Seeking Release: The defense attorney can seek bail for the respondent, enabling better
preparation for the defense.

4. Negotiating with Prosecution: They can negotiate with the prosecuting attorney to reduce
or drop charges, potentially benefiting the respondent.

5. Guidance on Procedures: The defense attorney advises on legal procedures and

arguments, helping the respondent understand their case's strategies and potential outcomes.

6. Legal Knowledge: With their legal education and experience, defense attorneys can
analyze the prosecution's evidence and prepare arguments to counter or mitigate its impact.

7. Preparing for Challenges: Defense attorneys prepare for the worst-case scenarios to
make informed legal decisions and effectively represent their clients.

Provisions:

a. In case of criminal case

This principle confirms that cross-examination is conducted orally, with questions and
answers exchanged directly between the examining attorney and the witness. This real-time
interaction allows for immediate responses and facilitates effective scrutiny of witness
testimony. Provisions for Cross-Examination under the Indian Evidence Act, 1872, play a
pivotal role in the legal process, serving to scrutinize witness testimony, uncover
inconsistencies, and expose biases or motives that may influence the outcome of a case. Let's
explore these provisions in detail:
a. Examination Sequence (Section 137): This section outlines the order of witness
examination in a trial, starting with examination-in-chief by the party calling the witness,
followed by cross-examination by the opposing party, and potentially re-examination by the
initial party.

b. Order of Witness Production (Section 138): Section 138 specifies the procedural sequence
for presenting and examining witnesses. While focusing on examination-in-chief, it indirectly
influences the process of cross-examination by determining the order of witness presentation.

c. Cross-Examination of Document Witnesses (Section 139): Section 139 applies to witnesses

summoned to produce documents. It clarifies that producing documents doesn't automatically
make them witnesses, and they can only be cross-examined if formally called as witnesses.

d. Cross-Examination of Character Witnesses (Section 140): This section allows the cross-
examination of witnesses regarding a party's character traits and societal reputation after their
examination-in-chief.

e. Cross-Examination Based on Prior Statements (Section 145): Section 145 mandates that all
witness statements be recorded in writing. During cross-examination, these prior statements
serve as crucial reference points to identify contradictions or assess witness credibility.

f. Permissible Questions in Cross-Examination (Section 146): Section 146 defines the types
of questions allowed during cross-examination, including those testing accuracy, gaining
insight, or challenging credibility.

g. Questioning Own Witnesses (Section 154): This section permits a party to ask leading
questions during the cross-examination of their own witness, facilitating efficient elicitation
of specific information.

b. in case of Civil case

Order XVIII of the Civil Procedure Code, 1908 governs the procedures for the hearing of
suits and the examination of witnesses. It outlines the order of examination, starting with the
witness being examined-in-chief through an affidavit, followed by cross-examination. If
needed, re-examination may be permitted to clarify any ambiguous aspects. The significance
of cross-examination lies in its aims:
1. Uncovering favourable facts for one's case.

2. Challenging the testimony of adverse witnesses.

3. Questioning the credibility of witnesses presented by the opposing party.

4. Drawing the court's attention to one's perspective or version of events.

5. Strengthening one's claims.

Under Order 18 of the CPC, witnesses are examined in chief through affidavits. It is crucial
for this evidence to align with the pleadings and not contain arguments or submissions.
Cross-examination, often considered the most challenging aspect for advocates, aims to
ascertain the probability of the truth of testimony based on competent and satisfactory
evidence.

Order 18, Rule 17 of the CPC empowers the court to recall witnesses at any stage of a suit to
address doubts in the evidence presented. This power is discretionary and should be used
sparingly to avoid filling gaps in witness testimony.

In cases where a defendant supports the plaintiff's case, they must present their evidence first,
followed by defendants who do not fully support the plaintiff's case. This ensures an orderly
trial process and prevents unnecessary delays. If new matters are introduced, opposing
defendants may subsequently cross-examine the witness, but this should not overly prolong
proceedings. Instead, the rule emphasizes that both parties supporting the plaintiff's case
should present their evidence first, followed by the opposing party.

Procedure to Conduct Cross-Examination

Cross-examination, an integral aspect of court proceedings, follows a prescribed procedure

outlined in both the Criminal Procedure Code (CrPC), 1973, and the Indian Evidence Act,
1872. The CrPC empowers courts of session to conduct cross-examinations under Sections
231(2), 243(2), and 246(6), while Section 162(1) links criminal procedure to the Evidence
Act for verifying statements made during cross-examinations. The CrPC allows for witness
examination through processes like examination-in-chief, cross-questioning, and re-
examinations, following the framing of charges. However, the Evidence Act provides a
detailed procedure for examination under Chapter X (Sections 135-166), defining terms like
examination-in-chief, cross-examination, and re-examination. Section 138 of the Act
delineates the order of examination, emphasizing the sequence of examination-in-chief,
cross-examination, and re-examination. Furthermore, Section 146 lists lawful questions
during cross-examinations, ensuring they pertain to relevant facts.

Judicial Precedents to Cross-Examination

While the Indian Evidence Act and CrPC offer comprehensive guidelines, judicial precedents
have refined procedures, especially concerning human and child rights. In B.S. Balaji v. T.
Govindaraju, the court affirmed the right of an adverse party to conduct cross-examinations.
The case of Govind Narain vs Smt. Chhoti Devi highlighted the recall of expert witnesses for
credibility verification. S. Amruta v. C. Manivanna Bhupathy discussed cross-examination of
children, emphasizing corroboration and preliminary enquiry. The Unnikrishnan R v. Sub
Inspector of Police case directed sessions courts to provide pre-submitted questionnaires for
child witnesses under the POCSO Act, ensuring comfort and adherence to child rights. State
of Rajasthan v. Kartar Singh addressed witness statements under duress, while Dahyabhai
Chhaganbhai Thakkar v. State of Gujarat upheld the right to cross-examine witnesses for
subtle contradictions.

Conclusion

The preceding discussion highlights the pivotal role of cross-examination in courtroom

proceedings, whether in civil or criminal cases. While witnesses turning hostile presents a
challenge, strategies discussed earlier can address this issue effectively. Essential qualities for
effective cross-examination include meticulous preparation, hard work, common sense, and
the ability to elicit desired information from witnesses.

A structured approach to questioning, thorough knowledge of the witness's prior testimony,

and keen observation of their behavior are critical tools to demonstrate the witness's
unreliability before the court. It's worth noting that a confused witness may inadvertently
provide more useful answers, while a knowledgeable witness with a strong recollection of
facts could pose a greater risk to the case. Importantly, there's no one-size-fits-all formula for
a perfect cross-examination. Success hinges on the advocate's ability, experience, and
skillfulness, adapted to the unique circumstances of each case.