PRINT PAGECross-examination Preparation

Written by Roy Black

No matter the system of justice, an advocate is only as good as his preparation — especially when it comes to cross-examination. I follow a good cross-examination no matter where it occurs. I enjoyed dissecting the over-the-top Gerry Nel cross-examination of Oscar Pistorius in his notorious South African murder trial. Now comes another international trial, this time in India. Salman Kahn, one of Bollywood’s brightest stars, was charged with hit and run culpable homicide.

The Indian film industry, besides being a national obsession, sells 2.6 billion tickets a year, nearly twice as many as Hollywood, and has a large following across the Indian diaspora in Asia, Africa and North America. Kahn, who specializes in action films, earned $40 million last year.

Khan was charged with culpable homicide, a lesser charge than murder, in a 2002 hit-and-run case in which his Toyota Land Cruiser ran over five homeless people sleeping on the pavement in Mumbai’s upmarket Bandra suburb. One was killed and the others severely injured. The prosecution claimed he was drunk at the time. They also charged that he bolted from his vehicle and fled the scene before the police arrived.

Khan was defended by Shrikant Shivade who has a reputation for fearsome cross-examinations. Unfortunately we have no video or transcripts of the trial, so I have to go on newspaper reports. Shivade is famous for obsessive preparation for cross-examination. I don’t think it can ever be too obsessive.

When a reporter asked Shivade about the amount of research that has gone into the Khan case, the lawyer reached into his black suitcase and produced thick books of the Maharashtra Medical Code, gas chromatography, fermentation, hydraulic steering and pamphlets of other chemistry studies. The judge, in his observation, termed Shivade’s cross-examination of the expert witnesses as “gruelling,” three days each for two witnesses — a chemical analyst who analyzed Khan’s blood samples and an Regional Transport Office (RTO) inspector who checked the car after the accident took place.

In preparing to cross examine one expert, Shivade mastered the physics of a 3,000kg car falling from a height of 2-3 feet. “We had calculated the force with which the car could fall from different heights. We had asked the Toyota company to make us a 3D model of the same Land Cruiser my client was driving, for demonstrations in court. At times 48 hours straight I had to sit down for just reading. I have to know more than an expert. I need to know the purpose of the first question I ask to my witness and the last one I ask the last witness.”

According to a reporter following the trial, Shivade had prepared for over two months, participating in blood alcohol tests in a lab, to conduct the cross-examination of the chemical analyst. Manahar Saini, a lawyer assisting Shivade in the case: “The most important respect was his attention to detail. He worked on the Toyota car himself before he could cross-examine the RTO inspector. The manner in which he completely broke the chemical analyst witness is something I would take back from the trial as a lawyer.”

Because of Khan’s celebrity, the trial captured the attention of the entire country. Like Pistorius, OJ or Michael Jackson, the case underscored the power of money and celebrity. In India, as here, the popular opinion is that the rich and famous get a better deal than the masses.

Yet in cases of celebrity trials, Shivade says, there is no room for a lawyer to make mistakes. “They are soft targets. The smallest of things get magnified.” According to him, there is a misconception that the rich get away, and the sensationalism could lead to miscarriage of justice. “The most important aspect is to walk a fine line between protecting the image of the celebrity and conducting a case. There is natural prejudice in such cases. Seeking exemptions and bails becomes a headache as it is looked upon with suspicion.”

Because of inadequate funding of the courts, justice is slow in India. The crash occurred on September 28, 2002, yet the verdict was not pronounced until 12 years later. As Shivade predicted, and as I have experienced, celebrities do well with juries, but not with judges and prosecutors. The latter want to appear tough on the well known.

On May 6, 2015, Judge D W Deshpande of the 52nd courtroom at the Bombay City Civil and Sessions Court found Khan guilty and sentenced him to 5 years in prison. But two days later an appellate court released Khan on less than $500 bail. The Times of India newspaper dubbed it “Salman Khan’s biggest Friday release.”

In a bizarre footnote to the verdict, the Bar Council of India suspended the Shivade’s Bar licence for three years. A three-member committee held that Shivade had sought an adjournment in a minor criminal case in 1992 before a Pune magistrate on “flimsy grounds” and thus was guilty of “professional misconduct.” The case had come to trial in July 1993 and there were six adjournments, the last of which seemed to have sealed Shivade’s fate. On December 4, 1993, after a bout of laryngitis, anticipating a long cross-examination of an electrical expert who was the witness for the day, Shivade sought an adjournment as the doctor had advised him not to strain his vocal chords. This seems more than a little unfair and perhaps a consequence of his aggressive advocacy.

I am not surprised Indian criminal lawyers can conduct vigorous cross examinations. The Indian legal system was originally designed by the British. Unfortunately they have done away with jury trials, yet their advocacy is still at a high level. I have a number of Indian texts on trial advocacy in my library. My favorite is Soonavala, RK, ‘Advocacy – Its Principles and Practice, dealing with the art of advocacy, examination-in-chief, cross-examination, re-examination/methods of preparing briefs, the art of persuasion, trial strategy and trial tactics, the art of winning cases, with extensive quotations from well known trials and notable cross-examinations’, (N M Tripathi Law Publishers, Bombay, 1953). I recently pulled it off my shelf and leafed through it and it was like visiting an old friend.

While Irving Younger has ten commandments, Soonavala has 93 rules, described and illustrated in 946 pages packed full of transcripts. Love it. I read it when I was a public defender and found it useful training. I am now reading my underlining and marginalia from over forty years ago. It is hard to imagine how much I didn’t know then and how much I had yet to learn. It is the type of practice text I like, full of examples and stories about trials. Most of them famous English criminal cases, but some examples from the US and India, used to illustrate his points of advocacy. A fun read.

Re-reading this classic after all these years reminds me of the melancholy end from Gatsby: “So we beat on, boats against the current, borne back ceaselessly into the past.”

The Khan case illustrates the optimal preparation strategy for a successful cross-examination. I do it like Shivade; immerse myself into the situations. Copy what the witnesses and cops did. Follow their trail and see where it leads. Nothing beats doing it yourself. Vistas open up to you.

Once I have experienced it all and read all I can get my hands on, I have a bunch of information without form or direction. They are fragments, ideas and thoughts without focus. They have to be tied together to make sense. Order over chaos. Organization, clarity and direction. Clear out the clutter.

Then the planning stage. How will the attack unfold? Which battles will I fight? I don’t need to take on everything, only the ones I have a chance of winning. Why enter a battle to lose? How will it be argued to the jury? Can I create an answer to support my argument?

Then the folders. I use the folder method of cross-examination. The simple inelegant manilla folder. Not even the colored ones. They are too distracting. Simple, workman-like and effective for the job. One essential is the tab at the top. On the tab I write one fact and only one fact. Not a sentence or a phrase, just one word. This simplifies things. Everything about the fact goes into the folder so I have the confidence it is all there, or at least everything I know about that fact is in there. I don’t have to hunt for it. I have it ready to pull out.

The folders work wonders in court. I can control the sequence of my cross. If I write the questions on a legal pad I lose flexibility. The order is pre-determined. Fine if building a bridge but not so fine if questioning a slippery human being in an attempt to discredit him. Especially since he knows it. He will be actively thwarting anything I throw at him.

Another advantage of the folder method is the ability to continually refine and upgrade sections of the proposed cross examination. Whether a new idea forms it can be inserted into the folder whether in the form of questions, or documents. I highlight the significant words in documents so they are immediately available to me when questioning the witness. I never want to fumble through a document in the presence of the jury. I also write questions right on the document to guide my line of attack. The benefit of flexibility and accessibility.

I never start where the direct ended. He expects that and is ready for it. I want to catch him by surprise. Get him off balance. Perhaps become a little unsure of himself. I want to be in control, not him. I want to start with my best stuff. Let him see my major league curve ball.

While direct drones on I am shuffling my folders like a deck of cards. I never have to fumble around worrying if I have the material. I can hit him with my best shot. Maybe not a killing one, but it’s the best I’ve got. Then the barrage, one after another, no chance for him to take a breath, until I run out of folders. Then I am finished.

Addendum:

On December 10, 2015 the Bombay High Court acquitted Salman Khan of all charges. The Court in a 304-page judgment ruled the prosecution failed to prove any charges against Khan beyond a reasonable doubt. The Court ruled the collection of blood samples was not done pursuant to any established protocol. The Court also found several infirmities in the testimony of witnesses. Most importantly the court decided the recorded testimony of deceased constable Ravindra Patil, the star prosecution witness, had been taken before the magistrate court when the charge against Khan was under section 304 (A) (causing death due to rash and negligent act). However, when the more serious charge of culpable homicide not amounting to murder was added and the case was transferred to the sessions court, Patil was not available for cross-examination by the defense and his recorded evidence could not be admitted.

According to news articles quoting members of the defense team the cross examinations by Shivade played a major role in the team’s approach to the appeal. This demonstrates the part aggressive cross-examination and preparation for it plays not only in the trial court but on appeal as well. Shivade’s intense preparation into the bloodwork by the police paid off in his client’s vindication on appeal. Forensic evidence developed in police labs is not always done according to the scientific method and must be aggressively challenged. I couldn’t find the opinion online so I can’t verify how much influence this had in the ruling had but it must have been major. Unfortunately I also couldn’t find what happened with Shivade’s suspension.

Addendum 3/6/16: Perhaps this explains the tactics that got Shrikant Shivade in trouble for his adjournment tactics. The Delhi High Court sent out a circular that any pretextual trial adjournment sought by any party, whether a litigant or the investigating agency, will result in a fine. The Court noted these abusive adjournments occurred between the deposition of witnesses and their cross-examination. There are long gaps based on one pretext or another, which gives a party ample opportunity to strategize and prepare for cross examination. The court also noted the adjournments were used to settle or get cases dismissed. The new rule requires trial courts to hold trial proceedings on a day-to-day basis once the witnesses start deposing and until their cross-examination is over.

“Courts exist for providing business to advocates, and if advocates are busy in high courts or other courts and choose not to appear for false and lame excuses, witnesses are to suffer and the system has to suffer,” the circular stated. Lawyers will have to pay a fine of up to `5,000 through their litigants if they seek adjournments on unnecessary pretexts. Order XVII of the Civil Procedure Code provides that only three adjournments will be granted to a party during the course of a trial.

Getting time to prepare for cross is a beautiful luxury. One we have never had since our jury trials are conducted every day and usually there is no time between direct and cross. Preparation has to be done in advance of trial when the advocate suffers under the disability of not being fully aware of the full scope of a witness’s testimony. This is especially difficult in federal trials where we obtain little discovery and no witness list. The federal government dearly holds on to this enormous advantage which results in a high percentages of guilty verdicts. Fairness is another matter.

Unfortunately I have been unable to find out what if anything happened to Shivade’s suspension.

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