INTRODUCTION
Examination of witnesses is a useful part in both
civil and criminal trial because it is where parties to the case depose facts
and evidence which support their case. Examination of witnesses is systematic,
there are procedures, rules and protocols set to enable proper examination of
witnesses. Section 156(1), 146(2) and 146(3) of The Evidence Act[1]provides
on stages of examination of witnesses which include three stages (Examination
in chief, Cross-Examination and Re-Examination).Examination in chief is done by
a party who calls a witness, cross-examination is the examination of a witness by the adverse
party and Re-examination is the examination of a witness subsequent to the
cross-examination by a party calling him.
Cross-examination is the questioning of a
witness during a trial, hearing, or deposition by the party opposing the one who
asked the person to testify in order to evaluate the truth of that person's
testimony, to develop the testimony further, or to accomplish any other
objective. The interrogation of a witness or party by the party opposed to the
one who called the witness or party, upon a subject raised during direct
examination the initial questioning of a witness or party on the merits of that
testimony[2].
The scope of cross-examination is generally
restricted to matters covered during direct examination, but not prohibited to
ask questions out of what covered during examination in chief, a cross examiner
must show that those questions asked out of what covered in the examination in
chief are relevant to the matter before court and are useful to prove or
disprove some facts. Section147(2) of TEA.
Cross examination is a statutory right, denying a
party the right to cross-examine a witness on important matters of the case is
fatal. A party who is denied a right to cross examine opponent's witness have a
good legal ground to appeal, section 146 of TEA[3]
makes it mandatory to all parties in a case to cross examine witnesses of
opposite side. In the case of Bhandari v Gautama[4]the
court held that, the denial of the right of the appellant’s counsel to
cross-examine the respondent on core issues rendered the trial unsatisfactory,
resulting in the appeal being allowed.
In Issa Jakala v Republic[5]
the accused was convicted of cattle theft. He was denied right to cross examine
prosecution witness during trial, on appeal the High Court stated two things:
· The failure to extend to the
accused the right to cross-examine was a fundamental error and the conviction
cannot stand despite the apparent strength of the prosecution case;
· If the accused does not desire to
cross-examine a particular prosecution witness after he has been given the
opportunity to do so, a note to that effect should be embodied in the record.
(For this reason the High Court quashed the conviction).
Cross-Examination under section 146 is mandatory
while that under section 176 of TEA[6]
needs an application to the court and a specific leave of the court to do so.
Cross-Examination intends to impeach the competency, credibility and
general value of the evidence given in examination in chief, to shift the facts
already stated by the witness, to detect and expose discrepancies or to elicit
suppressed facts which will support the case of the cross-examination party[7]. In
brief, cross examination aims to weaken, qualify, or destroy at all the testimonies
of opponent’s witnesses so as to construct the case of cross examination party.
AREAS
IN WHICH CROSS-EXAMINATION DIRECTED DURING TRIAL
The credibility of the witness. credibility
is the quality of being trustworthy or believable[8], for
a witness to depose quality evidence he/she supposed to earn trust of the court
that what he/she say is nothing but the truth. In this case, cross Examination tries
to shake credibility of the witness to reveal truth of statements or
testimonies made by a witness. In shaking witness credibility, a party or
advocate may ask questions which dis-prove or reveal lies by a witness, a party
is also allowed by law to use independent evidence to indicate to a court that
a witness is unworthy.
Section 164 of TEA enables parties to give
independent evidence as to the character of a witness in order to indicate that
he is unworthy of belief by the court. This section indicates that, credit of a
witness may be impeached by evidence of persons that the witness is unworthy of
credit as provided under section 164(1)(a), proof that the witness has been
bribed, has accepted the offer of a bribe or has received any other corrupt
inducement as provided under Section 164(1)(b) and former statements
inconsistent with the present evidence as per section164(1)(c) of TEA.
The facts to which he had deposed in-chief,
including the examiner’s version thereof. Cross examination
is directed to clearly reveal and cement facts, testimonies and evidence
deposed during examination in chief, here cross examiner bold statements stated
by a witness during Examination in chief which he will use against his opponent
in later questions to opponent’s witness. It is in cross examination where cross
examiner reveal irrelevant evidence to facts deposed and it is a time when cross
examiner through trap questions confuse previous statements of a witness to new
answers of a witness who previously examined in chief.
The facts to which the witness has not deposed but
which the cross-examiner thinks he is able to depose. Cross-Examination
is also directed to facts not deposed by witness during examination in chief
which cross examiner think it’s important for the sake of the case to be
deposed. In case a cross examiner think that there is other important facts or
statements not stated by witness in examination in chief, it is a chance now
during cross examination an examiner may use trick questions to trigger a
witness to depose those unstated facts that examiner thinks are helpful to his
case.
CONCLUSION
In cross examination, an examiner need to be careful
with questions he ask or statements he put to a mouth of a witness to escape to
contravene provisions of TEA. An examiner is not allowed to use abusive
language against a witness, indecent and scandalous questions as prohibited by
section 160, questions intended to insult or annoy as prohibited by section 160
and 161.
In examination in chief leading questions are not allowed, few leading questions may be asked at an introductory part. The scope of asking questions during examination in chief is limited to only relevant questions to a matter at hand not otherwise. In cross examination the scope of asking questions is wide enough, examiner is allowed to ask leading questions and to ask irrelevant questions which has something to do with case.
BOOKS
Abhinav Prakash, (2012), Law of Evidence, Universal
Law Publishing Co. PVT. LTD, New Delhi
L. B Curzon, (2002), Dictionary of Law, 6th Ed,
Pearson Education Limited, England
Vepa P. Sarathi, (2013), Law of Evidence, 6th Ed,
Eastern Book Company, New Delhi
STATUTES
The Evidence Act [CAP 6 R.E 2002]
CASES
IssaJakala v Republic (1968) HCD no. 100
Bhandari v Gautama [1964] EA 606 (C.A.)
Jonas Nkize v Republic (1992) TLR 213
John Makindi v Republic [ 1961] EA
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