Cross-examination in court: the concept, types, tactics of reference

Interrogation is the main procedural means of proof in the course of a judicial investigation. From its skilful conduct depends the legality and validity of the decision. Distinguish between direct and cross-examination. The latter is widely used in the Anglo-Saxon legal system. The possibility of its application in the Russian legislation is provided for in civil and arbitration proceedings, cases of administrative violations. However, cross-examination in the criminal process is of the greatest importance.

Determination of cross-examination

In modern Russian legislation, the notion of cross-examination is not fixed. Such a definition does not give any normative legal act. However, the authors of legal literature, such as Arotsker LE, Grishin, SP, Aleksandrov AS, devoted their research to this phenomenon and its application in domestic legal proceedings.

In scientific research there are different definitions of the concept. Thus, some authors believe that cross-examination is an interrogation in which participants in the process simultaneously ask questions to one person for the same circumstance. Others, following the example of Western law, under the cross understand the interrogation, which follows the direct and is conducted by the opposite side.

For the purposes of this article, the definition of Alexandrov AS and Grishin SP is adopted, according to which cross-examination is the questioning by a lawyer of a person whose testimony is used by the opposing party as evidence.

Signs of cross-examination

Unlike direct, this type of interrogation is exclusively judicial, not applicable in the preliminary investigation. It shows the essence of the modern judicial process - competitiveness and equality of the parties. In this case, cross-examination is conducted only by the parties, and the court asks only clarifying questions.

Such interrogation has a great convincing power for the court and the jury in comparison with the direct, because the questions are asked by the opposite side.

Cross-examination always follows the direct, therefore it is secondary in nature. It helps to clarify the testimony, find inconsistencies or weaknesses and, ultimately, aims to question the words of the interrogated.

From the secondary essence of cross-examination follows its specific subject - it, as a rule, is based on the addition, clarification or refutation of information already received during direct interrogation

Such an interrogation is often unpredictable, so a lawyer must clearly control the whole process and the answers of the interrogated.

Kinds

It is a mistake to believe that cross-examination in court is applicable only to witnesses. Any person being interrogated may be subjected to it. In accordance with the Code of Criminal Procedure, it is possible to identify types of cross-examination depending on the procedural status of the interrogated: interrogation of the defendant (Article 275 of the Code of Criminal Procedure), the victim (Article 277 of the Code of Criminal Procedure), the witness (Article 278 of the Code of Criminal Procedure), an expert (art. 282 of the Code of Criminal Procedure). At the same time, on the part of the prosecution, cross-examination will include the questioning of the accused, witnesses and defense experts. For the party of defense cross-examination is the questioning of the victim, witnesses and prosecution experts.

Cross-examination objectives

A lawyer must clearly understand the goal he wants to achieve by resorting to this procedure. The ultimate goal of any interrogation is to establish an immutable truth. However, cross-examination can:

• To receive necessary indications;
• Force the court to doubt the testimony of the interrogated;
• Force the court to doubt the reliability of the witness himself, in other words, "discredit" him;
• Use evidence to support or weaken the positions of other witnesses.

If, in planning the process, the lawyer understands that nothing benefits from cross-examination, it is better to refuse it.

Requirements for the questions asked

It is necessary to distinguish the fundamental difference in the tactics of cross-examination in the Russian and Anglo-Saxon legal systems. In the USA, leading questions are widely used in cross-examination (they are, on the contrary, banned from direct interrogation). They allow the lawyer to focus the attention of the court and the jury on information beneficial to the defense side. In Russia, Part 1 of Art. 275 of the Code of Criminal Procedure directly points out the inadmissibility of leading questions when questioning the defendant. It is not forbidden to ask witnesses, experts and victims, who are interrogated in the manner established by Art. 278, 278.1 and 282 of the Code of Criminal Procedure.

It is noteworthy that the definition of suggestive issue in the legislation of the Russian Federation is also not specified. In the jurisprudence and specialized literature there are various formulations of this concept. An analysis of judicial practice shows that questions that predetermine the expert's conclusions or repeat answers to previously asked questions are inadmissible. At the same time, it is necessary to distinguish suggestive questions from clarifying questions.

In general, the general requirements for formulating questions are as follows:

• They must be concise and understandable, without ambiguous interpretation;
• Questions should be asked in a direct, rather than in an indirect form;
• They must assume a detailed response;
• The wording of the question must correspond to the level of development of the interrogated;
• The answers should not be based on assumptions.

General Principles of Interrogation by a Lawyer

All questions asked by a lawyer need to be worked out at the preparatory stage in order to ensure the required impact on the court.

In the course of the court session, there is no need to use special terms. Invited witnesses and experts should also avoid narrowly specialized words, so that their testimony is clear to the court and the jury.

The most important statements must be made at the beginning or in the end of the procedural action.

If during the cross-examination the lawyer had a need to ask the witness a question that already sounded on direct interrogation, he should first seek permission from the presiding judge.

During the interrogation, the lawyer can only ask questions, but not comment or evaluate the information received. The defender can express his opinion and assessment in his speech in accordance with paragraph 292 of the Code of Criminal Procedure.

The sequence of direct questioning by a lawyer

Distinguish the peculiarities of the lawyer's direct and cross-examination. With the proper construction of direct interrogation, the court must have a clear idea of the events described.

In this case, the lawyer should divide the questions into 4 parts. Initially, the witness or expert is identified or accredited, that is, his personal data (place of residence, place of work, professional qualification) are established.

Then the lawyer asks questions to determine the place of action, the time and the course of the event, about which the testimony is given. In the answers the interrogated person shows his awareness and competence. The task of the lawyer is to convince the court and the jury of the reliability of the witness.

Then there are testimonies about the sequence of events. They are not always given in chronological order. For the greater conviction of the court, the most important facts endure at the beginning or end of the testimony.

Finally, the direct questioning is completed with three or four questions summarizing all the testimonies of the witness or expert.

Need for cross-examination

As for cross-examination in court, first of all the lawyer needs to think whether he needs anything at all.

If the testimony of the witness turned out to be unimportant and did not damage the interests of the defendant, cross-examination should be discarded. In this case, new indications can only worsen the situation.

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

Ways to achieve cross-examination objectives

To undermine the court's trust in a witness or expert, a lawyer can use the following methods:

• To find in the testimony of exaggeration or distortion, contradictions to other evidence available in the case;
• Force the court to doubt the integrity of the witness, the professional qualities of the expert;
• To demonstrate the impossibility or illogic of the facts given in the testimony;
• To force the court to doubt that, the witness is able to give objective testimony on the facts of interest;
• Show that the expert did not have enough facts and materials to make an assessment.

Methods of conducting cross-examination

Extensive western practice has produced many methods of cross-examination. Here are some of them:

• To discredit the witness, the lawyer emphasizes that the interrogated could not hear and see what the evidence indicates. For example, it was too far from the place of the described events, the lighting was not sufficient, obstacles were on the way, and so on.
• Another method is to focus the witness's attention on minor details and memories in order to show how many actions the witness performed in a short period of time at the time of the events described. The purpose of the questions is to bring the court to the conclusion that the witness did not have the opportunity to memorize the key details for a limited time. For example, during a robbery in a store, the victim did not have time to look at the attacker's face, since at that time his gaze was aimed at weapons, clothing or valuables.
• If the situation described has happened long enough, the lawyer can doubt the testimony, because after a time people usually can not remember exactly where, when and with whom they were, if this does not concern an extraordinary event (wedding, birthday).
• Sometimes a lawyer can play on the fact that the witness has a prejudiced attitude or is interested in the results of the process.
• If the witness gives testimony at the trial, which is different from what he gave during the preliminary investigation, the lawyer may question their veracity.

Advice to lawyers

The classic F. L. Wellman in his book gives the following advice to lawyers on cross-examination:

• Observe closely the course of direct interrogation and look for "weak spots" in the testimony of the interrogated person;
• Represent yourself in the jury's seat every time a question is asked to look at the situation with their eyes;
• Ask questions only for a specific purpose, avoid empty questions, since inept questions are worse than those missed;
• Never misinterpret the witness's words - this reduces the credibility of the lawyer in the eyes of the court and the jury;
• Do not focus on minor inconsistencies in the testimony of the witness, which may indicate the agitation of the interrogated or his poor memory;
• Never ask important questions without a prepared ground, so that the interrogated before the fact could not refute him;
• Ask the question only if the lawyer himself knows the answer to it.

Thus, with skillful use, cross-examination can become a decisive tool for an attorney in judicial proceedings.