Difference between revisions of "India Criminal Defense Manual - Questioning the Witness"

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1. What is the overall theory of the case?
 
1. What is the overall theory of the case?
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2. How does this witness fit into the overall theory of the case?
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3. How can you fit this witness's story into the story that has already been told and the story that will be told after this witness testifies?
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4. How will the witness's testimony help you to develop your client's story? To counter the prosecutor's story?
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5. What evidence do you need to introduce or rely on during examination in chief? During cross-examination?
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6. What evidence will the prosecutor rely on during examination in chief? During cross-examination? What questions can you ask or what evidence can you use to counter the prosecutor's evidence?
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'''Purpose of Examination in Chief and Cross-Examination'''
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Section 137 of The Indian Evidence Act, 1872 defines that the examination - in -chief is the Examination of the witness by the party who calls him to give his testimony before the Court. The Cross Examination of the witness is the examination of the witness by the adverse party. In case it is desired by the party calling his witness subsequent to cross examination, that witness may be called for Re- Examination. Although the legal aid lawyer should ask the six questions listed above when preparing for either examination in chief or cross-examination, he should be aware that examinations in chief and cross-examination have very different purposes and techniques.
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== EXAMINATION IN CHIEF ==
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The examination of witness by the party who calls him shall be called his Examination - in - chief<ref>Section 137 of The Indian Evidence Act, 1872</ref>. which requires the witness to tell a story. The goal of examination in chief is for the legal aid lawyer to elicit the witness's story in the witness's own words in a manner that will advance the overall theory of the case.
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== CROSS-EXAMINATION ==
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The examination of a witness by the adverse party shall be called his cross - examination<ref>Section 137 of The Indian Evidence Act, 1872</ref> which is a selective, targeted attack on the prosecutor's theory of the case. It is not simply rehashing the testimony that was developed during the direct examination of the witness. The legal aid lawyer seeks to develop points that will show that the witness's testimony is inconsistent with other testimony or evidence; that the witness is biased against the accused; that the witness has a motive to testify against the accused; that the witness (if he is a co-accused) had the opportunity to commit the crime; that the witness lacks knowledge of the facts and the evidence in the case; and that the witness was unable to see, hear, perceive, and observe the major events in the case.
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'''Types of Questions to Ask'''
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Open-ended questions: Since the purpose of examination in chief is to have the witness tell a story in narrative form, the legal aid lawyer should ask questions beginning with words that are intended to elicit information from the witness, such as who, what, where, when, why, how, describe, explain.
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Asking these types of questions requires a witness to do more than simply answer yes or no. Examples:
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* When you arrived at the bar, what did you see?
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* Can you tell us how the fight began?
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* Who did you see at the bar? What were they doing? What happened next?
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Closed-ended questions: Closed-ended questions require the witness to answer yes, no or as briefly as possible; therefore, the legal aid lawyer should avoid asking these types of questions during examination in chief and should ask closed-ended questions during cross-examination. Examples:
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* Was the bar crowded the night that the fight occurred?
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* Were you still there when the fight ended?
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== Words never to ise during cross-examination  ==
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Legal aid lawyers should NEVER ask who, what, where, when, why, how, describe and explain during cross-examination. These are words requiring explanation that you do not want to elicit during cross-examination. The goal of cross-examination is to target the prosecutor's case and to advance the accused's theory of the case without giving the witness an opportunity to explain their answers. You want the witness to agree with your version of events, not to develop their own.
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== HOW TO PREPARE YOUR CLIENT AND OTHER WITNESSES ==
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1. Communicate your theory of the case to the client or other witness. Explain how their testimony advances the theory of the case and refutes the prosecutor's version of events.
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2. Prepare your client and other witnesses for both examination in chief and cross-examination.
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3. Prepare your questions for both examination in chief and cross- examination. Remember to begin with broader, more general questions at first and more specific, detailed questions as the examination proceeds. Be sure to save your strongest/best points for the end of your examination. Do not ask a question for which you do not know the answer.
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4. Role-play with your client or other witness. Prepare them for the prosecutor's tone, questions the prosecutor will ask, and evidence the prosecutor will use.
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5. Advise your client or other witness to listen carefully to the question that is being asked, regardless of whether you or the prosecutor is doing the questioning. Make sure the client or other witness understands that they need to concentrate on answering the question that is actually asked and that they should not provide information that they have not been asked to give.
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6. If the client or other witness truthfully does not know the answer to a question, he should say, "I don't know" instead of guessing or speculating.
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7. Reassure the client or other witness that they will have the opportunity to clarify any matters that need clarification during re-examination in chief.
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== Conclusion ==
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Developing effective examination in chief and cross-examination skills takes persistence, patience and most of all, practice, practice, practice! By developing a comprehensive theory of the case and structuring your examination in chief and cross-examination questions in a manner that advances your theory, you will be able to persuasively argue your client's case to the court.

Revision as of 13:50, 10 June 2010

  1. Section 137 of The Indian Evidence Act, 1872
  2. Section 137 of The Indian Evidence Act, 1872