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.
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.
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.
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.
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:
If the planning lawyer understands that nothing is benefiting from cross-examination, it is better to abandon it.
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:
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.
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.
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.
To undermine the confidence of the court to the witness or the expert, the lawyer can use the following methods:
The Vast Western practice has developed a variety of methods to cross-examination. Here are some of them:
Classic F. L. Wellman, in his book gives the following advice to lawyers on conducting cross-examination:
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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