Cross-examination in court: concept, types, tactics

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2018-04-30 13:01:00

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Questioning is the principal procedural means of proof during the trial. His skillful conduct depends on the legality and validity of decisions. There are direct and cross-examination. The latter is widely used in Anglo-Saxon legal system. The possibility of its application in the Russian legislation in the civil and arbitration proceedings in cases of administrative violations. However, the most important is cross-examination in criminal proceedings.

Cross

The Definition of cross-examination

In the modern Russian legislation does not stipulate the concept of cross-examination. This definition does not give any legal act. However, the authors of legal literature, such as Arotsker L. E., Grishin, S. P., Aleksandrov A. S., has devoted his research to this phenomenon and its application in domestic proceedings.

In research there are different definitions of the concept. So, some authors believe that the cross is the questioning in which the participants in the process at the same time ask questions to one person in the same circumstance. Others, following the example of Western legislation, the cross-understand the questioning that follows the direct and is of the opposite party.

For the purposes of this article adopted a definition of Alexandrov, A. S., Grishina, S. P., according to which cross-examination is questioning by the lawyer of the entity, the readings of which are used by an adverse party as evidence.

Signs of cross-examination

In contrast to direct, this kind of questioning is solely judicial, not used in the preliminary investigation. It appears the essence of the modern judicial process – competition and equality of the parties. While cross-examination is conducted only by the parties, and the court shall ask only clarifying questions.

The questioning is of great persuasive force for the court and jury than direct, because the questions are asked by the opposite party.

Cross-examination follows direct, so it is secondary in nature. It helps to clarify evidence, to find inconsistencies or weaknesses and, ultimately, aims to cast doubt on the words of the interviewee.

From the secondary essence of cross-examination should specific thing – it typically is based on the addition, clarification or refutation of already obtained during direct examination of information

The questioning is often unpredictable, so the lawyer needs to clearly control the entire process and answers questioned.

the cross-examination in court

Types

A mistake to assume that cross-examination in court is applicable only to witnesses. He may be subjected to any interrogated person. In accordance with the code, you can select the types of cross-examination depending on the procedural status of the interviewee: interrogation of the defendant (article 275 of the code of criminal procedure), the victim (article 277 of the criminal procedure code of the Russian Federation), witness (article 278 CCP), expert (article 282 of the RF criminal procedure code). While the prosecution cross-examination will be the interrogation of the accused, witnesses and experts protection. For the defense is cross-questioning of the victim, of witnesses and experts the prosecution.

Purpose of cross-examination

The Lawyer must be clear about the goal he wants to achieve by resorting to this procedure. The ultimate goal of any interrogation is to establish indisputable truths. However, cross-examination can be:

  • To obtain the necessary evidence;
  • To force the court to doubt the testimony of the interviewee;
  • To get the court to doubt the reliability of the witness, in other words, "discredit" it;
  • Use evidence to support or weaken the position of other witnesses.

If the planning lawyer understands that nothing is benefiting from cross-examination, it is better to abandon it.

direct and cross-examination

Requirements FAQ

It is Necessary to highlight a fundamental difference in the tactics of cross-examination in Russian and the Anglo-Saxon legal systems. In the United States are widely used leading questions during cross examination (by direct on the contrary, they are forbidden). They allow the lawyer to focus the attention of court and jury information favorable to the defense. In Russia part 1 of article 275 of the criminal procedure code directly points to the inadmissibility of leading questions during the interrogation of the defendant. While not forbidden to ask the witnesses, experts and victims who are questioned inthe procedure prescribed by article 278, 278.1 and 282 of the code of criminal procedure.

It is Noteworthy that the definition of a leading question in the legislation of the Russian Federation also registered. In the jurisprudence and specialized literature there are various formulations of this notion. Analysis of judicial practice shows that invalid are the questions that predetermine the conclusions of the expert or repeat answers to earlier questions. Thus it is necessary to distinguish between leading questions from the lookup.

In General, General requirements for the wording of the questions is as follows:

  • They should be brief and clear, without ambiguity;
  • Questions should be asked in a direct but not in indirect form;
  • They must include a detailed response;
  • The wording of the question should match the development level of the interviewee;
  • Answers should not be based on assumptions.

the tactics of cross-examination

General principles of interrogation lawyer

All questions the lawyer must study in preparation to provide the desired impact on the court.

In the course of the hearing do not need to use special terms. Invited witnesses and experts should also avoid highly technical words, that their testimony was clear to the court and jury.

The Most important statement you need to do in the beginning or at the end of the proceedings.

If, in the course of cross-examination from a lawyer need to ask the witness a question, already been made on direct questioning, he must first to apply for permission to the chair.

During questioning, the lawyer can only ask questions, but not comment on or evaluate the information received. Your opinion and evaluation of the defender can make his speech in accordance with item 292 of the criminal procedure code of the Russian Federation.

the cross-examination in criminal proceedings

The Sequence of conducting direct examination a lawyer

Distinguish features of a lawyer direct and cross-examination. With the right building direct examination, the court should have a clear idea of the described events.

In this case, the attorney should divide the questions into 4 parts. First is the identification or accreditation of a witness or expert, that is, installed his / her personal data (place of residence, place of work, professional qualifications).

Then the lawyer asks questions to determine the place of action, time and event, which are given to the testimony. In the answers the interviewee shows his awareness and competence. The task of the lawyer – to convince of the credibility of the witness, the court and jury.

Next come the testimony about the sequence of events. They are not always given in chronological order. For more beliefs of the court the most important facts out in the beginning or end of statement.

Finally, complete the direct examination of three-four questions, summing up all the testimony of the witness or expert.

the concept of cross-examination

The Need for cross-examination

With regard to cross-examination in court, the lawyer first must consider whether he needs it at all.

If the testimony of the witness was irrelevant and did not harm the interests of the defendant to cross-examination should be abandoned. In this case, new evidence can only worsen the situation.

Cross-examination is justified only when the witness can provide additional important information. If there is a risk that the testimony will bring more good than harm.

Methods of achieving the objectives of cross-examination

To undermine the confidence of the court to the witness or the expert, the lawyer can use the following methods:

  • Find the testimony of exaggeration or distortion, contradiction with other evidence available in the case;
  • To force the court to doubt the integrity of the witness, the professional qualities of the expert;
  • To demonstrate the impossibility or irrationality of the facts given in evidence;
  • To force the court to doubt the witness is able to give objective indications on relevant facts;
  • To show that the expert did not have sufficient facts and materials for the evaluation.

a method of cross-examination

Methods of conducting the cross-examination

The Vast Western practice has developed a variety of methods to cross-examination. Here are some of them:

  • To discredit a witness the lawyer focuses on the fact that the latter could not hear and see what points in the readings. For example, he was too far from the scene of the events described, the lighting was not sufficient in the way were obstacles, etc.
  • One – focusingattention of a witness on minor details and memories in order to show how much action was made by the witness for a short period of time at the time of the events described. The purpose of questions – to bring the court to the conclusion that the witness was not able to remember key details for a limited time. For example, during a robbery in the store, the victim did not have time to consider the attacker's face, as at this time his gaze was focused on weapons, clothing or values.
  • If the described situation occurred quite a long time, the lawyer may doubt the testimony because over time, people usually can't exactly remember where, when and with who they were, except for the case of extraordinary events (wedding, birthday).
  • Sometimes the lawyer can play on the fact that the witness is biased or interested in the outcome of the process.
  • If at trial, the witness gives evidence different from those that he gave during the preliminary investigation, the lawyer may cast doubt on their truthfulness.

Tips for lawyers

Classic F. L. Wellman, in his book gives the following advice to lawyers on conducting cross-examination:

  • Watch carefully the progress of direct questioning and search for “weaknesses” in the testimony of the interrogated person;
  • Imagine yourself in the place of the jury every time the question is asked, to look at the situation through their eyes;
  • Only ask questions with a purpose, to avoid useless questions, as clumsily questions worse missed;
  • Do not misinterpret the words of the witness – this reduces the credibility of the lawyer in the eyes of the court and jury;
  • Do not focus on insignificant inconsistencies in the testimony of witnesses who can testify to the excitement of the interviewee or his bad memory;
  • Never ask the important questions without pre-prepared soil so faced with the fact the interviewee was not able to refute it;
  • Ask question only if the lawyer knows the answer.

Thus, the skillful use of cross-examination can be a decisive tool of a lawyer in court proceedings.


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Alin Trodden - author of the article, editor
"Hi, I'm Alin Trodden. I write texts, read books, and look for impressions. And I'm not bad at telling you about it. I am always happy to participate in interesting projects."

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