Lawyers adopt several postures to get what they want from witness. It is good to known at least three classic types of lawyers, each dangerous in his own way. First is the ‘friendly’ lawyer.
He smiles at you and wins your confidence. He puts apparently harmless questions but the most dangerous one is sandwiched between them. The moment he gets his answer he wants from the unsuspecting witness, he knows that he has won the battle.
The second type is ‘shouting’ lawyer who is just the opposite of the first type. This one has a booming voice which is uses to shout at witness, opponents and judges. He will ridicule, heckle and try to bend or break the spirit of everyone in his way.
The third type is the ‘theatrical’ lawyer, who uses the courtroom as a stage. He will put a smart question to witness and look at the people present to indicate how stupid the witness is.
He will make sarcastic comments to cow down the witness. He will throw a huge book on the table for effect.
All these bags of tricks are used mainly to confuse and trip witness. If a lawyer succeeds in confusing witness, he has won half his battle, unless the judge interferes in favour of the witness. So the first advice to a witness is: Do not be confused.
Another strategy of the lawyers is to suppress an answer if it goes against him. A clever lawyer never asks question which will bring forth replies unsuitable to him.
Still another technique is to insist on a ‘yes’ or ‘no’ answer without allowing you to do any other information.
For example, he will ask: “Did you post the letter on December 29?” He will demand a ‘yes’ or ‘no’ answer without letting you add that it was a postal holiday or that you were sick that day.
The yes or no answer could lead to absurdities as the following illustration snows. Witness, who was put to embarrassment by counsel during cross examination, was saved by a judge who intervened at the right time to ask the right question.
Counsel: Is it a fact that you are sharing your apartment with women?
Witness: Yes, it is a fact.
Counsel: I put it to you that women are not your wife.
Witness: No, she is not my wife.
Counsel: I put to you that woman is not your mother.
Witness: She is not my mother.
Counsel: She is not Your daughter either?
Witness: She is not my daughter.
Counsel: Nor your sister?
Witness: No, she is not my sister.
At this point, counsel stated that he had no further question to ask. While the embarrassed witness was leaving the witness box, the judge asked him: “Who is that woman?”
Witness: She is my grandmother.
This might help you to be forewarned if you are called as a witness. It is wise to know the lawyer’s strategy and the general principles of evidence. The law regarding evidence is found in the Evidence Act, 1872. The main points are discussed here.
A person who wants to prove facts favourable to him must to bring suitable witness to the court.
All persons are competent to testify unless the court considers that they are prevented from understanding the questions put to them or from giving rational answers due to tender age, extreme old age, disease or any other cause.
The order in which witness are to be produced and examined is regulated by the Civil and Criminal Procedure codes. The judge will decide what facts are relevant to the case and he will admit evidence according to his discretion.
There are three stages in the examination of a witness. First is the examination-in-chief. The examination of a witness by the party who calls him is called the examination-in-chief.
The second stage is cross-examination or the examination of a witness by the opposite party. The party which called the witness, by the opposite party. The party which called the witness, if it wants, can re-examine him after the cross-examination. This is the third stage.
The court will not permit counsel to put ‘leading questions’ during the examination-in-chief and re-examination. A leading question is one which suggests an answer. It usually requires a yes or no answer.
For instance, “Did you here the sound of gunshot at 10 p.m.?” is a leading question. Counsel must put the question like this; “When did you here the gunshot?” leading questions are allowed in cross-examination.
Counsel is given a lot of liberty in the cross-examination. He may ask questions to test a witness’s truthfulness, to discover who he is and what is his position a life, and to shake his credit, by injuring his character, although the answer might tend to criminate him or might expose him to penalty or forfeiture.
The judge will decide whether or not a witness shall be compelled to answer a question and if he thinks so, he may warm the witness that he is not obliged to answer it.
However, a witness shall not excuse from answering a relevant question on the ground that the answer will incriminate him directly or indirectly. But no such answer, which a witness compelled to give; shall subject him to arrest or prosecution.
The court can forbid any question which it regards as indecent or scandalous though such questions may have some bearing on the issues before the Court.
But if the question relate to facts of the cases, they may be asked, For instance, if a man is alleged to be important, he may be asked intimate details of his sexual behaviour.
But the court will forbid any question which appears to be intended to insult or annoy or which is needlessly offensive. The court itself can ask any question it pleases. In any form, at any time, of witness, or of the parties, about any fact relevant or irrelevant.
A lawyer can impeach a witness in four ways:
1. Other persons can be called to testify that they, from their knowledge of the witness, believe him to be unworthy of credit,
2. By proof that the witness has been bribed, or has accepted the offer of bribe, or has accepted the offer of bride, or has received other corrupt inducements to give evidence,
3. By proof of former statements inconsistent with any part of his evidence, and
4. When a man is prosecuted for Rape or an Attempt to Rape, it may be shown that the woman is generally of an immoral character.
No one can be made to give evidence from unpublished official records relating top affairs of state, except with the permission of the officers in charge.
No magistrate or police officers can be compelled to say from where he got any information regarding a crime. A revenue officer can also be not compelled to disclose the source of his information regarding an economic crime.
No lawyer shall be permitted to disclose information made to him in the course of his professional duties, unless his client permits it. For instance, Chadha tells his lawyer, “I have committed forgery and I wish you top defend me.”
As the defence of a man known to be guilty is not a crime, this communication is protected from disclosure. But if Chadha says instead: “I wish to obtain profession of property by the use of a forged deed on which I request you to sue.”
This communication, being made in furtherance of a criminal purpose, is not immune.
Moreover, no one shall be compelled to disclose to the court any confidential communication which has taken place between him and his legal professional adviser unless he offers himself as a witness.
Though the police make much of the confessions they obtain from the accused, the credibility of confessions is very low in the court. No confession made to a police officer shall be proved as against the accused.
No confession made by any person while he in police custody can be proved against him, unless it was made in the immediate presence of a magistrate.
A confession is irrelevant in a criminal proceeding if the confession appears to the court to have been made by inducement, threat or promise.
However, when a fact is discovered though a hint given in the confession, so much of the confession can be accepted.
For instance, an accused says in his confession before a policeman that he threw a murder weapon in a tank. If the weapon is found in the tank, so much of the confession can be accepted as evidence.
Evidence is of two types direct and circumstantial. Direct evidence is that of a person who can give information first-hand, for instance, of a person who actually saw a crime being committed.
Indirect or circumstantial evidence is that of a person who can give second-hand information, for instance, of a person who saw a criminal leaving the place of murder with a weapon.
All facts, except the contents of documents, may be proved by oral evidence. Oral evidence must be direct, and not hearsay or second-hand. If the evidence refers to a fact which could be seen, it must be the evidence of a witness who says he saw it.
The contents of documents may be proved either by primary or by secondary evidence. Primary evidence means the production of the document itself before the court. Secondary evidence means certified copies of the documents in question.
The person who wants the court to give judgement relying on certain facts must prove that those facts exist. When a person is bound to prove the existence of any fact, it is said that the ‘burden of proof’ lies on that person.
For example, if kuppuswamy wants the court to give a judgement that he is entitled to certain land in possession of Ramaswamy by reason of facts which he asserts and which Ramaswamy denies, Kuppuswamy must prove the existence of those facts.
The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were giving on either side. For instance, Ghose sues Bose for money due on a bond.
The execution of the bond is admitted, but Bose says that it was obtained by fraud, which Ghose denies. If no evidence was given on either side, Ghose would succeed, as the bond is not disputed and the fraud is not proved.
When the question is whether any person is owner or anything of which is shown to be in possession, the burden of proving that he is not the owner is on the person who affirms that he is not the owner.
In certain cases, the court may presume certain facts which it thinks could be true, considering the common course of natural events, human conduct, public and private business.
For is in possession of stolen goods soon after the theft, is either the thief or has received the goods knowing them to be stolen. It can presume that an accomplice is unworthy of credit.
It can presume that evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it.
The court may presume that if a man refuse to answer a question which he is compelled by law to answer, if given, would be unfavourable to him. But these illustrations have their exceptions, of course.
In the first case of stolen property, if a shopkeeper gets a marked rupee soon after it was stolen, but cannot account for it specially because the continually receives rupee notes in the course business, nothing shall be presumed against him.
Connected with this presumption is the principal of estoppels. Suppose Kishan intentionally and falsely leads Chander to believe that certain land belongs to Kishan and thereby induces Chander to buy and pay for it.
Afterwards the land becomes the property of Kishan. Now he seeks to set aside the sale on the ground that at the time of the sale. He had no title. He must not be allowed to prove his want of title.
The law says: When a person has by his declaration, act or omission, intentionally caused or permitted another person to believe a thing to be true and to act upon such belief, he shall not be to deny the truth of that thing in any suit or proceedings.
Sometimes an accused seeks pardon from the court and agrees to give evidence against his co-accused in crime.
In this case, he helps the prosecution. He is called ‘approver’ in the case. Similarly, if a witness gives evidence against the party which called him to the court, he is called a ‘hostile witness’.
The law as it stands today puts witnesses in difficult position in certain cases. Normally, trails take place months or years after the offence, by which time witness would have forgotten the details of the incident.
The police might have recorded a statement from witness at the time of the incident. But witness cannot refer to this statement to refresh his memory.
While the lawyer’s prosecution and defence can refer to the statement, the person who made it cannot read it.
The statement can be used, however, to contradict witness. The problems these create can well be imagined. If you were a witness to an accident or crime a few years ago, only your memory can save you in the court.