MANAGEMENT OF JUSTICE: PART 3




Credibility and reliability of evidence

The witness may give evidence to protect the defence or incriminate him. Further he may be mistaken due to circumstances which hinder accurate observation. The object of cross examination is to dispute evidence whenever there is a suspicion of it’s genuineness

 In destructive cross examination credibility and lying can be exposed. There are three categories of lying. The first involves affirmative lying where the witness steadfastly adhere to his version of facts due to high motivation. Here lying can be exposed by self contradictory statements or statements given by similar defence/ prosecution witness about same event.Next is the reluctant witness who is afraid to reveal the truth and is evasive. Such witnesses can be examined in detail about an event and gets caught if details are attempted to be hidden. The third types are those who are afraid to commit perjury and omit details or twist the facts to colour it favourably. They can be presented an alternate reality and asked about its plausibility.The credibility of a witness is bolstered if he is not a relative or friend.Morever the uncomfortable demeanour while lying can diminish the trustworthiness of a witness.  The most successfull destructive examination is to show inconsistency ,impossibility or improbability of a witness statement. 

     Reliability of evidence may be challenged based on errors of observation or errors of memory. Observation of a event or identity of a person may be faulty due to distance , speed of movement of a vehicle in car accidents, poor light,presence of multiple persons at same time, anxiety or drunkenness of observer. These can be highlighted as possibilities leading to errors. Moreover errors of memory are common due to length of passage of time. To highlight this the details of clothes colour and other details may be asked to test the memory of the event. These can countered by defence by emphasising presence of adequate lights on the occasion or having written down details  to aid memory for recollection.

   In constructive cross examination attempt is made to incriminate the witness while giving evidence. A particular point such as presence of darkness by the witness may be seized upon and repeated and emphasised elsewhere to bolster own arguments.Meanings arise from facts and are opinions of the witness about these facts.New meanings can lead the witness into admitting the inconsistency or improbality of the fact.New facts about a case may arise inadvertently when the witness is allowed to ramble on and volunteers facts harmful for the prosecution.

Types of Defence

   While the defence may admit that a crime has occurred it may still try to prove that the defendant is innocent. The commonest defense used is self defence. This is present in cases of burglary when the burglar threatens with a weapon. The burglar can even be killed in defence as the crime is justified as not causing social harm. However if the burglar attempts to run away and is shot dead it is involuntary man slaughter as inappropriate force was used. The evidence needs to prove this from material and witness accounts. In cases of assaults a defence of causing harm can be used only if the assault was not started by the individual. Again only appropriate force and not intent to kill should be there from circumstantial evidence.Self defence becomes more important if a weapon is being held by the opponent.However use of foul words or vandal izzati on of property are not grounds for using force in self defence.

    Another type of defence is mental incapacity to understand consequences of ones actions. This occurs in bipolar disorder ,schizophrenia and must be present at time of occurrence of the crime. The defender must be moreover incapacitated at the time of occurrence of the crime and not in a lucid interval.

  Lastly syndromic defences like battened wife syndrome where a wife is repeatedly assaulted and kills the husband as a defence. The rape syndrome where a victim may not immediately report the incidence because of hesitation.

Ack: Cross examination in criminal trials

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