Interrogation is the main procedural means of proof during the judicial investigation. The legitimacy and validity of the decision depends on its skillful conduct. There are direct and cross-examination. The latter is widely used in the Anglo-Saxon legal system. The possibility of its application in Russian legislation is provided for in civil and arbitration proceedings, cases of administrative violations. However, cross-examination in criminal proceedings is of the greatest importance .
Definition of cross-examination
The concept of cross-examination is not enshrined in modern Russian legislation. Such a definition does not give a single legal act. However, authors of legal literature, such as Arocker L.E., Grishin, S.P., Aleksandrov A.S., devoted their research to this phenomenon and its application in domestic proceedings.
In research papers there are different definitions of the concept. So, some authors believe that such an interrogation is cross-sectional, in which the participants in the process simultaneously ask questions to the same person for the same reason. Others, following the example of Western legislation, refer to cross-examination as interrogation, which follows the direct and is conducted by the opposite side.
For the purposes of this article, a determination has been made by Aleksandrov A.S., Grishin S.P., according to which, cross-examination is a 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 modern litigation - the adversarial and equal rights of the parties. Moreover, cross-examination is carried out only by the parties, and the court asks only clarifying questions.
Such interrogation has a great convincing power for the court and jury in comparison with the direct one, because the questions are asked by the opposite side.
Cross-examination always follows the direct, so it is secondary in nature. It helps clarify evidence, find inconsistencies or weaknesses and, ultimately, aims to cast doubt on the words of the interrogated.
A specific subject follows from the secondary essence of cross-examination - it is usually based on the addition, refinement or refutation of information already obtained during direct interrogation
Such an interrogation is often unpredictable, therefore, the lawyer must clearly control the entire process and the answers of the interrogated.
Kinds
It is a mistake to believe that cross-examination in court applies only to witnesses. Any interrogated person may be subjected to him. In accordance with the Code of Criminal Procedure of the Russian Federation, it is possible to distinguish types of cross-examination, depending on the procedural status of the interrogated: interrogation of the defendant (Article 275 of the Code of Criminal Procedure of the Russian Federation), victim (Article 277 of the Code of Criminal Procedure of the Russian Federation), witness (Article 278 of the Criminal Procedure Code of the Russian Federation), expert (Article 282 Code of Criminal Procedure). Moreover, the interrogation of the accused, witnesses and defense experts will be considered cross-examination from the prosecution's side. For the defense, cross-examination of the victim, witnesses and prosecution experts.
Cross-examination objectives
The lawyer must clearly understand the goal that he wants to achieve by resorting to this procedure. The ultimate goal of any interrogation is to establish the immutable truth. However, using cross-examination, you can:
- get the necessary evidence;
- make the court doubt the testimony of the interrogated;
- make the court question the reliability of the witness himself, in other words, “discredit” him;
- use evidence to support or weaken the position of other witnesses.
If, when planning the process, the lawyer understands that he does not benefit from cross-examination, it is better to refuse it.
Asked Requirements
It is necessary to highlight the fundamental difference in the tactics of cross-examination in the Russian and Anglo-Saxon legal systems. In the United States, leading questions are widely used in cross-examination (they are, on the contrary, prohibited in direct interrogation). They allow the lawyer to focus the attention of the court and jury on information that is beneficial to the defense. In Russia, part 1 of article 275 of the Code of Criminal Procedure of the Russian Federation directly indicates the inadmissibility of leading questions during the interrogation of the defendant. Moreover, it is not forbidden to ask their witnesses, experts and victims who are interrogated in the manner prescribed by Art. 278, 278.1 and 282 of the Code of Criminal Procedure.
It is noteworthy that the definition of a leading issue in the legislation of the Russian Federation is also not spelled out. In judicial practice and specialized literature there are various formulations of this concept. An analysis of judicial practice shows that questions that predetermine expert conclusions or repeat answers to previously asked questions are unacceptable. In this case, leading questions should be distinguished from clarifying ones.
In general, the general requirements for the wording of the questions are as follows:
- they should be concise and understandable, without ambiguous interpretation;
- questions should be asked in direct and not indirect form;
- they should suggest a detailed answer;
- the wording of the question should correspond to the level of development of the interrogated;
- answers should not be based on assumptions.
General principles for conducting interrogation by a lawyer
All questions asked by a lawyer need to be worked out at the preparation stage to ensure the required impact on the court.
During the trial, you do not need to use special terms. Invited witnesses and experts should also avoid highly specialized words so that their testimonies are understood by the court and jury.
The most important statements must be made at the beginning or at the end of the procedural action.
If during a cross-examination, the lawyer has a need to ask the witness a question that has already been heard at the direct examination, 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 defense counsel may express his opinion and assessment in his speech in accordance with paragraph 292 of the Code of Criminal Procedure of the Russian Federation.
The sequence of direct interrogation by a lawyer
Distinguish features of conducting a lawyer direct and cross-examination. With proper construction of direct interrogation, the court should have a clear idea of the events described.
In this case, the lawyer should divide the questions into 4 parts. First, the identification or accreditation of the witness or expert takes place, that is, his personal data are established (place of residence, place of work, professional qualification).
The lawyer then asks questions in order to determine the scene, time and course of the event about which evidence is given. In the answers, the interrogated shows his knowledge and competence. The lawyer's task is to convince the court and the jury of the reliability of the witness.
Next are indications of the sequence of events. They are not always given in chronological order. To make the court more convincing, the most important facts are placed at the beginning or end of the evidence.
Finally, three or four questions complete the direct interrogation, summing up all the testimonies of the witness or expert.
The need for cross-examination
As for cross-examination in court, first of all, a lawyer needs to think about whether he is needed at all.
If the witness’s testimony turned out to be unimportant and did not harm the interests of the client, cross-examination should be refused. In this case, new readings can only worsen the situation.
Cross-examination is justified only when the witness can provide additional important information. If it is likely that the testimony will do more good than harm.
Ways to Achieve Cross-Examination Goals
To undermine a court’s trust in a witness or expert, a lawyer can use the following methods:
- to find in the evidence exaggeration or distortion, contradictions to other evidence available in the case;
- make the court doubt the integrity of the witness, the professional qualities of the expert;
- demonstrate the impossibility or illogicality of the facts given in the testimony;
- make the court doubt that the witness is capable of giving objective evidence on facts of interest;
- show that the expert did not have enough facts and materials to make an assessment.
Cross-examination techniques
Extensive Western practice has developed many cross-examination methods. Here are some of them:
- In order to discredit the witness, the lawyer focuses on the fact that the interrogated could not hear and see what is indicated in the testimony. For example, he was too far from the place of the events described, the lighting was not sufficient, there were obstacles in the way, etc.
- Another trick is focusing the witness’s attention on insignificant 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 was not able to remember key details for a limited time. For example, during a robbery in a store, the victim did not have time to examine the face of the attacker, since at that time his eyes were focused on weapons, clothes or valuables.
- If the described situation happened a long time ago, the lawyer may doubt the testimonies, because after some time people usually cannot remember exactly where, when and with whom they were, if this does not apply to an extraordinary event (wedding, birthday).
- Sometimes a lawyer may play on the fact that the witness is biased or interested in the outcome of the process.
- If a witness gives evidence in court that differs from what he gave during the preliminary investigation, the lawyer may question their veracity.
Lawyer Tips
Classic F. L. Wellman, in his book, gives the following advice to cross-examination lawyers:
- closely monitor the progress of the direct interrogation and look for “weaknesses” in the testimony of the interrogated person;
- imagine yourself in the jury every time a question is asked to look at the situation through their eyes;
- ask questions only for a specific purpose, avoid empty questions, as ineptly asked questions are worse than missed ones;
- never misinterpret the words of the witness - this reduces the credibility of the lawyer in the eyes of the court and jury;
- not to focus on minor inconsistencies in the testimony of the witness, which may indicate the excitement of the interrogated or his poor memory;
- never ask important questions without previously prepared soil, so that the interrogated person can not refute it;
- ask a question only if the lawyer himself knows the answer to it.
Thus, with skillful use, cross-examination can be a decisive tool for a lawyer in court proceedings.