Losing The Art Of Cross-Examination In Civil Law: Issues Compounded By Local Commissions And Video Conferences

Lawyers were once known by their ability to cross-examine and deftly deal with witnesses, to prove their case. With time, dwindling patience levels in the legal fraternity and on account of the ambition to start off in the profession at the highest possible appellate courts and specialized tribunals, the quality of cross examination has effectively reached a new rock bottom. A potent tool such as cross-examination, as it once was, has effectively turned into a superfluous exercise and a lost art. To make matters worse, evidence and more particularly cross-examination is viewed by some, especially in arbitrations, as a stage which could be bypassed rather than a stage that helps in arriving at an effective and proper adjudication. In essence, one of the most important stages in a proceeding is just reduced into an empty formality.

Stages Prior to evidence/deposition:

A suit (court proceeding) is instituted with a plaint^[1] being filed by a particular party alongwith documents in support of the plaint. The plaint is supposed to contain material facts only, which leads to filing of the plaint. The plaint is, therefore, the very foundation of the entire proceeding. Typically, at the time of filing the plaint itself, a lawyer ought to be looking at how he will seek to prove a particular fact, if the suit is to reach the stage of trial. This fundamental fact is not seen at the time of institution of a suit. Unfortunately, at this stage, plaints are subject to exaggeration and wild and sweeping allegations without realizing that an effective and experienced cross-examiner may demolish the witness in cross-examination. A similar course is followed in the case the written statements^[2] (defence statement), counter claims^[3] and replications^[4] (a reply to the written statement).

Problems at the stage of examination in chief:

When issues of only fact or mixed issues of fact and law are struck by Courts and the matter is ripe for evidence, a certain party is directed to file its evidence by way of affidavit on the basis of who is to begin in evidence^[5]. It is seen that this stage of evidence is taken rather lightly and the facts in the plaint are virtually reproduced in the form of an affidavit rather than making the effort of detailing the transaction in question. This mechanically prepared argumentative affidavit in evidence is tendered in evidence (formally providing it to the court in the form of a statement). The manner of drafting the evidence by way of affidavit is itself wrong. However, the bigger issue is that at the stage of tendering the evidence, an effective cross-examiner could take various objections, which go to the root of the matter or can strategically keep out documents from being proved. Mostly, the unpreparedness, non-challance or lack of experience of a lawyer/counsel ensures that these crucial objections are not taken, at this stage of tendering at all. Thus, most objections are deemed to be waived by the party cross-examining the witness and a right of a litigant is compromised at that stage, if it is not already compromised earlier.

Lack of understanding of basic rules of evidence:

During cross-examination, what is often forgotten is that cross-examination is meant to elicit facts, to shake the credibility of a witness and/or to test the veracity of a witness^[6]. Instead, cross examiners ask questions on facts already detailed in the affidavit of evidence or facts which are irrelevant and do not fall within the parameters of the relevant questions under the Indian Evidence Act^[7]. What is the point of such a question or adopting such a line of questioning?

The other fundamental problem in cross-examination is a lawyers insistence on asking questions which are in the nature of admitted facts ^[8], facts of which judicial notice can be taken or questions on facts which are clearly written in a particular document/ Agreement, contrary to the best evidence rule^[9]. While this leads to a certain degree of exasperation, surely, such temptations can be avoided.

Additionally, cross-examination, in essence, gives the power to not only ask questions but to also call for production of documents, if a party so desires.^[10] Cross-examiners forget that if a document has been produced at their behest, such a document is treated as though it was filed by the party cross-examining a witness. Thus, assuming there are some contents in the document produced which are against a party cross examining the witness' case, the party calling for such documents cannot distance itself from such a document and is effectively saddled with the document which reads against their case.

In addition, during cross-examination, documents, which were not filed with the pleadings, can only be confronted if the witness is the author of the document and not otherwise.^[11] A random document, which has not been filed with the pleadings, cannot be shown to the witness and the witness cannot be made to answer questions relating to such a document.

Naturally when a lawyer commits these mistakes, cross-examination neither serves the purpose of eliciting the truth nor serves the purpose of discrediting the witness.

To compound issues, to the questions that are sought to be put to the witness by a lawyer, some arbitrators and judges reframe the question in their own language, with no particular change in the meaning of the question. At times, the reframing of the question completely takes away the sting from the question or allows the witness to gather why such a question was asked in the first instance. Instead of reframing questions, which are otherwise comprehensible to a witness, if the court/arbitrator wishes to ask a question, the judge/ arbitrator has adequate powers to do so under the Indian Evidence Act. Reframing a question cannot possibly be a course that is adopted especially if the witness has understood the question in the first instance. This is not an accepted practice at all, let alone an internationally accepted practice. Internationally, the only manner to stop cross examination is to record an objection by the opposing lawyer and rule on it and is not to reframe or recast a question.

Problems during cross examination before Local Commissioners:

There are also times where some cases do not see evidence for a long time. It is at this stage that a party or parties together elect that they could have evidence recorded through a local commissioner. The Delhi High Court (Original Side) Rules^[12] provide that the Local Commissioner has the power to merely record evidence. Any objection (as to relevance of the questions etc.) taken during cross-examination by the opposing lawyer has to be recorded and cannot be adjudicated by the Local Commissioner.^[13] The Courts would decide these objections, taken during cross-examination, at the final stage. By taking this approach, the entire point of taking an objection is lost since the witness is not pre-empted from answering. In the process, irrelevant questions are allowed to be asked, questions on content of the document are asked and the witness is made to answer, witnesses are confronted with random documents and are made to answer, just to illustrate. One seems to ask one self, what is the point of taking an objection the Local Commissioner cannot be given powers of adjudication?

Similarly, since the Local Commissioner is only recording evidence, the demeanour of the witness is never recorded. The demeanour of the witness is vital since it has an effect on the credibility of the witness. The Delhi High Court Rules also provide that only an adjournment of one week would be given for further evidence before the Local Commissioner.^[14] Even this rule of the Delhi High Court is not followed and dates are given at the earliest convenience of the Local Commissioner, which may be several days, weeks and even months in most cases.

Issues of cross examination through video conferencing:

Various Courts have also sought to implement evidence through Video Conferences^[15] and framed guidelines as well. Several courts have carried out video conferencing in case where the witness is unable to travel to India on account of ill health, or on account of lack of funds or where a lady had minor children and could not come to depose. The Delhi High Court has prescribed^[16] that a party seeking to call a witness through video conference has to clearly mention this fact in the list of witnesses and also move an appropriate application to this end. Upon the application being allowed, the witness can depose through a consulate, embassy or be accompanied by a notary, if the witness is abroad. The witness will be examined and cross-examined in a designated area and the evidence and cross-examination will be stored and ostensibly subsequently transcribed. If a witness is required to be cross examined and confronted with a document, the document would have to be provided in advance and could be seen through a visualizer and the witness can accordingly answer.

The rules of video conference seem simple to follow but are excruciating to implement. One would never know, as a cross examiner, if a particular document is to be confronted (shown to the witness) or not in advance as it depends completely on the deposition of the witness. Further, if a document is sought to be confronted and is provided in advance, the entire point of the element of surprise of confrontation is lost. Thirdly, in a case that relates to extensive video footage, it would be impossible to point out which part of the video and which angle is sought to be shown for the purposes of confrontation and cross-examination. Additionally, one would not get to know if the person accompanying the witness is a Notary, if the Notary has administered oath, if the witness is carrying notes, if the affidavit is marked or not and several such issues. If the witness has made extensive notes, the entire point of cross-examination is defeated. This process also suffers from the same issue that the process of recording of evidence by Local Commissioner suffers i.e. the issue of recording every objection and allowing the witness to answer irrespective of the objection. Yet again, there is absolutely no mechanism or provision given to record demeanour of the witness.

There are also issues concerning and revolving around infrastructure and its availability at both ends. Each court does not have the requisite infrastructure. Similarly, if a question is asked of a witness and if the screen freezes, albeit for a couple of minutes, or while giving a reply to a question, the screen freezes, information and consequently the answer to the question is completely lost. There have been times where the witness becomes a little cleverer and takes advantage of the loss of the connection and changes the answer. Therefore, assuming that an answer was given to benefit a particular party, such an answer is lost merely on account of technological problems. For the purposes of recording evidence, video conference is not an ideal choice.

Arbitrations are also following suit and recording evidence, at times, through video conferencing. At least in the case of a court monitored recording of evidence, there are some safeguards. In arbitrations, these basic safeguards are also not taken. Hence, evidence in arbitration, for whatever it is worth in arbitration, is severely compromised.

Conclusions:

The question that therefore arises is, can technology be implemented for every stage of a proceeding, irrespective of the stage and nature of the proceeding? The answer is an emphatic "no". Video conferences is best kept for summary proceedings and that too for interim hearings. Such a course cannot be adopted for cross-examination and final hearings.