Interrogation is the main procedural means of proof during the judicial investigation. From its skillful implementation depends on 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 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 is not given by any normative legal act. However, authors of legal literature, such as Arotsker L. E., Grishin, S. P., Alexandrov A. S., devoted their research to this phenomenon and its application in domestic legal proceedings.
In research papers there are different definitions of the concept. So, some authors believe that cross-examination is such an interrogation in which the participants in the process simultaneously ask questions to one person on the samecircumstance. Others, following the example of Western law, understand cross-examination, which follows a direct one and is conducted by the opposite side.
For the purposes of this article, the definition of Alexandrov A. S., Grishina S. P. is adopted, according to which, cross-examination is the interrogation by a lawyer of a person whose testimony is used by the opposing party as evidence.
Signs of cross-examination
Unlike direct interrogation, this type of interrogation is exclusively judicial, not used in the preliminary investigation. It reveals the essence of the modern judicial process - competitiveness and equality of the parties. At the same time, cross-examination is carried out only by the parties, and the court asks only clarifying questions.
Such an interrogation has a greater persuasive power for the court and the jury compared to a direct one, because the opposite side asks questions.
Cross-examination always follows direct examination, 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.
From the secondary essence of cross-examination, its specific subject follows - it is usually based on the addition, clarification or refutation of information already received during direct interrogation
Such an interrogation is often unpredictable, so the lawyer must clearly control the entire process and the answers of the interrogated.
Views
It is a mistake to believe thatcross-examination in court only applies to witnesses. Any interrogated person may be subjected to it. 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 state of the person being 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 Code of Criminal Procedure of the Russian Federation), expert (Art. 282 Code of Criminal Procedure of the Russian Federation). At the same time, the interrogation of the accused, witnesses and experts of the defense will be considered as cross-examination on the part of the prosecution. For the defense side, the interrogation of the victim, witnesses and experts of the prosecution is cross-examination.
Targets of cross-examination
A lawyer must be clear about the goal he wants to achieve by resorting to this procedure. The ultimate goal of any interrogation is to establish an indisputable truth. However, through cross-examination, you can:
- get necessary readings;
- 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 testimony to support or weaken the positions of other witnesses.
If, when planning the trial, the lawyer understands that there is nothing to gain from cross-examination, it is better to refuse it.
Question 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 (whenon the contrary, they are directly prohibited). They allow the lawyer to focus the attention of the court and the jury on information that is beneficial to the defense. In Russia, Part 1 of Art. 275 of the Criminal Procedure Code of the Russian Federation directly indicates the inadmissibility of leading questions during the interrogation of the defendant. At the same time, it is not forbidden to ask them to witnesses, experts and victims who are interrogated in the manner prescribed by Art. 278, 278.1 and 282 of the Criminal Procedure Code of the Russian Federation.
It is noteworthy that the definition of a leading question 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 the conclusions of an expert or repeat answers to previously asked questions are unacceptable. At the same time, one should distinguish leading questions from clarifying ones.
In general, the general requirements for the wording of questions are as follows:
- they should be short and clear, without ambiguity;
- questions should be asked directly, not indirectly;
- they should suggest a detailed answer;
- the wording of the question should correspond to the level of development of the person being interrogated;
- answers should not be based on assumptions.
General principles of interrogation by a lawyer
All questions asked by the lawyer must be worked out at the preparation stage in order to ensure the required impact on the court.
No need to use special terms during the trial. invited witnesses andexperts should also avoid technical language so that their testimony is understandable to the court and jury.
The most important statements must be made at the beginning or end of a proceeding.
If, during cross-examination, a lawyer needs to ask a witness a question that has already been asked during direct examination, he should first apply for permission to 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 of the Russian Federation.
Sequence of conducting direct interrogation by a lawyer
Distinguish between the features of conducting direct and cross-examination by a lawyer. With the correct 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 witness or expert is identified or accredited, that is, his personal data (place of residence, place of work, professional qualification) is established.
The lawyer then asks questions to determine the location, time, and course of the event being testified about. In the answers, the interrogated person shows his awareness and competence. The task of a lawyer is to convince the court and the jury of the reliability of the witness.
Next comes the testimony about the sequence of events. They are not always given in chronological order. For morethe court's convictions put the most important facts at the beginning or end of the testimony.
Finally, direct examination is completed with three or four questions, summing up all the testimony of a witness or expert.
Need for cross-examination
When it comes to cross-examination in court, the first thing a lawyer needs to consider is whether it is needed at all.
If the testimony of the witness was unimportant and did not harm the interests of the client, cross-examination should be abandoned. In this case, new readings can only worsen the situation.
Cross-examination is justified only when the witness can provide additional important information. If there is a possibility that the testimony will do more good than harm.
Methods to achieve the goals of cross-examination
To undermine the court's confidence in a witness or expert, a lawyer can use the following methods:
- to find exaggerations or distortions in the testimony, contradictions to other evidence available in the case;
- force the court to 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 able to give objective evidence on the 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 methods of cross-examination. Here are some of them:
- To discredit the witness, the lawyer emphasizes that the interrogated person could not hear and see what he points out in the testimony. For example, he was too far from the scene of the events described, the lighting was not sufficient, there were obstacles in the way, etc.
- Another technique 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 lead the court to conclude that the witness did not have the opportunity to remember key details in the limited amount of time. For example, during a robbery in a store, the victim did not have time to see the face of the attacker, since at that time his gaze was directed at weapons, clothes or valuables.
- If the described situation happened a long time ago, the lawyer may doubt the testimony, because after the lapse of time people usually cannot remember exactly where, when and with whom they were, unless it concerns an extraordinary event (wedding, birthday).
- Sometimes a lawyer can play on the fact that the witness is biased or interested in the outcome of the process.
- If a witness gives testimony at trial that differs from what he gave at the preliminary investigation, the lawyer may question their veracity.
Advice for lawyers
Classic F. L. Wellman in his bookgives the following advice to attorneys on cross-examination:
- observe closely the course of direct interrogation and look for "weak points" in the testimony of the interrogated person;
- put yourself in the shoes of the jury every time a question is asked to see the situation through their eyes;
- asking questions only with a specific purpose, avoiding empty questions, as poorly asked questions are worse than missed ones;
- never misrepresent the words of a witness - this reduces the credibility of the lawyer in the eyes of the court and jury;
- do not focus on minor inconsistencies in the testimony of the witness, which may indicate the excitement of the interrogated or his bad memory;
- never ask important questions without preliminary prepared ground, so that the person being interrogated before the fact could not refute it;
- only ask a question if the lawyer himself knows the answer.
Thus, if used skillfully, cross-examination can be a decisive tool for a lawyer in legal proceedings.
