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SKY AS THE LIMIT OF CROSS-EXAMINATION: MYTH OR REALITY

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Abstract

Being able to render an effective cross-examination is a critical skill for nay trial lawyer as skillfully asked questions to an opponent’s witness into resources for strengthening one’s own case and undermine the opponent’s claims. While each lawyer develops his or her own method of cross examination, the goal remains to weaken an opponent’s case in favor of his own. Indeed, nothing secures a lawyer in court proceedings than his time in the witness-box under the brimstone of a trial lawyer’s cross-examination. However, the popular assertion seems to make a good number of people believe that the Nobel art is an instrument of legal intimidation and character assassination of witnesses who come to court to give testimonies. In this light, this research work is aimed at examining whether or not, the sky as the limit of cross-examination is a myth or reality. The reason for embarking on this research is to ascertain through legal proposition, the limits of cross-examination and subsequent

 INTRODUCTION

• Background to the Study

It is trite law that a witness may give sworn evidence before the court in three main forms, examination in chief, cross examination, and re-examination. A requisition of re-examination from the re-examination from the bench usually comes with a “nil” from the bar; this is because most of the evidence is gotten from examination in chief and cross examination. Frontloading procedure (especially in the superior courts of record) has made examination in chief a mere formality particularly in civil matters where adoption of witness statement on oath is now the current practice[1].

This leaves us with cross examination, an art which reveals the worth and wit of a good trial lawyer and with which nature reflects and sustains the advocacy`s beauty of the law profession. The art of cross examination is made in the open court where lawyers produce brilliant questions from the blue without the aid of law texts or law reports. In an adversarial trial procedure like ours, cross examination is ultimately employed in locating a witness weak point and exploiting it to favor the cross examiner in the proceedings, showing that the evidence is unworthy of belief by reason of trials, interest or lack of honesty or knowledge of the events to which he testified. It is used in damaging material facts of the examination in chief so as to weaken the opponent’s case.

Indeed, nothing scares a layman (especially where he is not a party to the case) in court proceedings than this time or minutes in the witness-box under the faustrton of a trial lawyer’s cross examination[2]. It is not strange to see experts quiver as they make efforts to answer a question drawn by lawyers from the deep analysis of their areas of expertise. Former director of public prosecution (DPP) and solicitor-general of Lagos state, Mr. fola arthur-womey has said that cross examination is the most effective tool in the office of trial lawyer to challenge the opposing party`s case, particularly where the entire case turns substantially on the credibility of the witnesses[3].

The aim of cross-examination is to enable the cross examining party demolish or weaken the case of the other party. As stated by the learned authors of PHIBSON on evidence[4], “all cross-examination must be relevant to the issues and the witness credit. The object of cross examination is to weaken or destroy the case of the opponents and to establish the parties own case by means of the opponent’s weakness.

From the popular assertion that the sky is the limit for a cross examining lawyer, it seems as though cross examination is a sole party section, but it is not. It should be noted that the wide intensions of giving a trial lawyer such great liberty in the conduct of cross examination is to find truth through his questions and to attain justices through his act of cross examination. Thus, the witness under cross examination deserves some protection from the court. This protection is recognized by the Evidence Act[5] in the instances where questions asked do not relate to a matter relevant to the proceedings. If the question is asked merely to injure his character(suspect)| the court shall decide whether or not he is obliged to answer the question. In addition, indecent or scandalous question cannot be asked. It is on this note that the issue of whether the sky as a limit of cross examination is a myth or reality arose. This issue will be determined in this research work

• Statement of the Problem

Many lawyers, even experienced trial counsels, have not mastered the basics of cross examination. This is why the art is often abused both civil and criminal cases. The popular assertion that “the sky is the limit of cross examination has contributed substantially to the abuse of the art of cross examination by trial lawyers. The rule is that cross examination should not go beyond the subject affecting the witness credibility. The court may allow inquiries into additional matters as if it’s on direct examination. Leading questions should not be used on direct examination except as necessary to develop the witness testimony. There should also be avoidances of needless consumption of time which is a matter of daily concern that arises from countless questions posed by the trial lawyer which are not relevant to the fact in issue or relevant to some other facts which are relevant to the fact in issue.

However, these rules of cross examination are flouted time and again by trial lawyers who are inexperienced in the art of cross examination. Also troubling is the possibility that a truthful witness might be targeted and mined by a clever cross examiner[6]. Also, cross examination that involves lying to the witness in order to set him up for a fall is yet another trick employed[7]. This is referred to as impalement as a subterfuge.

It should never be forgotten that the art of cross examination is hinged upon the rule of natural justices (Audi alterem partem) and as such.

Such a denial of it without justifiable reasons amounts to denial of for hearing as enshrined in section 36 (1) 1999 constitution of Nigeria[8]. Consequently, the topic of this research work has been chosen to tackle the problems of cross examination in relation to the assertion that the sky is its limit. At the end of this work, we will be able to know if that assertion is a myth or a reality.

 

• Purpose of the Study

The need for a better understanding of the art of cross examination and its limit, have led to a careful and deliberate choice of this topic. The study has both general and specific purposes. The general purpose of this study is to table a detailed explanation of the art of cross examination as it relates to admissibility of evidence in Nigeria and the principle of natural justices audi alterem patem (hear from the other side).

The specific purposes of this study are as follows:

• To know the rationale behind the art of cross examination.
• To know whether the assertion, the sky is the limit of cross examination is a myth or reality.
• To examine the statutory provisions relating to cross examination.
• To ascertain the legal options that could be put in place to reduce problems associated with the art of cross examination.

1.4 Significance of the Study

This study has both theoretical and practical significance. Theoretically, this study will add to the already existing literature on the issue of cross examination relating to admissibility of evidence in Nigeria and other jurisdictions. This may contribute to addressing the problem hoped to be tackled by this research work.

Practically, this study will help law makers and judicial officers to understand the effect of the abuse of cross examination exercise by trial lawyers on the right to fair hearing as provided in the constitution and in the interest of justice.

1.5 Scope of the Study

The study is limited in scope to cross examination, leaving out examination in chief and re-examination, all of which are the three ways that a witness may give sworn evidence in court. The study c0ncisely raises the question of whether the sky is the limit of cross examination as a myth or a reality.

1.6 Methodology

The research methodology employed in this work is doctrinal. A doctrinal research means a research that has been carried out on a legal proposition by way of analyzing the existing statutory provisions and cases. It involves the analysis of case laws, arranging and systematizing legal propositions and the study of legal institutions through legal reasoning.

The information used in this work is sourced from primary and secondary sources. The provisions of the repealed evidence Act Cao “E14” LEN, 2004, the evidence Act of 2011 and other Acts and case laws mentioned in the work to form the primary source. The secondary source includes materials on the internet and articles.

 

 

1.7 Definition of Terms

The following terms defined here is for a better understanding of this work.

1. Admissibility: refers to evidence which is legally relevant whether it is logically probative or not. In general, admissible evidence is that which is relevant and which is not excluded by law or practice. It is the concept of law of evidence that determines whether or not evidence can be received by the court. Such evidence must first be relevant before tested for admissibility.
2. Evidence: that which tends to prove the existence or the non-existence of some fact. It may consist of testimony, documents, tangible object. The law of evidence comprises all the rules governing the presentation of facts and proof in proceedings before a court, including in particular rules governing the admissibility of evidence and the rules. It may be obtained legally or illegally i.e. in a manner contrary to the provisions of the law.
3. Examination: this is the questioning of witnesses on oath or affirmation. In civil and criminal proceedings, a witness called to give evidence at trial may be subject to examination-in-chief, cross-examination and re-examination.
4. Facts: this is an event or state of affairs known to have happened or existed. It may be distinguished from law and from opinion.
5. Facts-in-issue: interpreted to include any fact from which either by itself or in connection with other facts the existence, non-existence nature or extent of any right, ability or disability asserted or denied in any proceeding necessarily follows. Put differently, some facts in issue are all such facts that a plaintiff in a civil case must prove in order to establish his claim and all such facts tha the prosecution must prove in order to secure a conviction. It also involves what a defendant must do in order to establish his defense.
6. Frontloading: this is defined as a legal concept that requires both the plaintiff and defendant in a civil litigation to reveal their entire case before trial. This done by filling a statement of claim or defence, written statement on oath of witnesses, list of witness amongst others.
7. Justice: a state of affairs in which conduct or action is both fair and right given the circumstances. it refers also to the paramount obligation to ensure that all persons are treated fairly.
8. Leading question: a question asked of a witness in a manner that suggest the answer sought by the questioner or that assumes the existence of disputed facts against which the witness is to testify. It is often asked in cross-examination to test the credibility and accuracy of a witness’s testimony.
9. Litigation: this is a legal action instituted in court by a party called the plaintiff or complainant against another party called the defendant.
10. Relevancy: in the laws of evidence, it is the relationship between two facts that renders one probable from the existence of the other, either taken by itself or in connection with other facts.