Thinkfest, where he was a speaker.Legally India bumped into senior counsel and BJP parliamentarian Ram Jethmalani on 5 November, relaxing on a grassy lawn of Goa’s Grand Hyatt hotel on the fringes of Tehelka’s
We asked the undisputed champion of cross-examination for a master class in the subject, covering Oscar Wilde, the Bible and being a hermit in preparation. We also wondered whether politicians cared about legal sector liberalisation at all.
Legally India: What is the current state of cross-examination in India?
Ram Jethmalani: The art of cross-examination is the most effective weapon for the discovery of truth, provided the objective is not to confound a truthful witness but to extract truth from an unwilling witness. For example, the successful cross-examination of false witnesses are legion – thousands.
If somebody wants to really read what interesting cross-examination can be, you should read the cross-examination of Mr Oscar Wilde in his defamation casewhich was filed against [Lord Alfred] Douglas’ father.
In cross-examination they brought out so much of mud against him that the government of Britain had no option but to prosecute him for sodomy. And you know how ultimately poor Oscar Wilde ended up in his life.
Therefore if today perjury is rampant, particularly in our Indian courts (I don’t speak about English courts - my own view is that there’s much less perjury in England and America than there is in India), therefore the art of cross-examination is a greater necessity as a part of the lawyer’s equipment.
It is unfortunate that trials in this country don’t take place in the manner that they are required to be conducted.
First of all adjournments, without a very pressing cause, are prohibited by both the civil procedure code as well as the criminal procedure.
There one witness, half a witness is examined today, then the same witness comes after three months when examination in chief is over and forgotten, then the lawyer is supposed to cross-examine. It serves no purpose at all.
If you put so much interval between examination and cross-examination, the fellow goes and gets his best advice and gets ready for cross-examination.
It happens almost invariably now, that’s the state.
LI: How do you become a good cross-examiner?
RJ: Cross-examination is learned by a long experience, by long introspection.
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According to me as I teach the cross-examination to my students sometimes, you have almost to become like a hermit, sit in absolute loneliness, find out your first question which you will ask, write down then the possible answer. You should be prepared because you’ll be taken by surprise what are the possible answers he gives you.
Then what will you do next? You should be ready immediately to carry out your cross-examination along the lines that you had thought of that possible answer.
LI: How long does it take?
It takes a long, long time. It takes a long time. I am talking of really complex cases; simple cases nothing happens.
And then cross-examination is also of another kind. One is to demolish your false witness. The other is to get facts in your favour from an honest witness whom the police never asked to disclose those facts. But there may be some undisclosed facts known to the fellow but the police was not interested so they didn’t being them on record.
You must know from where to get those facts but that is also called cross-examination.
All cross-examination by the opposing counsel is called cross-examination, although some cross-examination has nothing to do with demolishing credibility but establishing your own case.
Another illustration of cross-examination: I don’t know if you read the biblical story of Daniel and Susanna? It’s an apocryphal story.
Susanna was a very pretty girl in ancient Babylon. And Babylon was ruled by a council of four old men, like our Panchayat system of today but each of these four old men was a lecherous guy, and they tried to seduce this woman.
But they say, what you heard of the woman was stronger than her solicitations of the old men. In due course, she was prosecuted on a false charge – the false charge of adultery with a man unknown. And the prosecutor, the witnesses, the judge the executioner, were all these four men only.
So she was sentenced to death and a huge crowd had collected to witness the execution of this woman and for her blood to flow.
From the crowd rose a young man, who was not a lawyer, who didn’t know much of cross-examination, but nevertheless he had the bravado to say, I want to ask a few questions of these old men. But the crowd, not impressed by him but by his bravado, they all said: ‘Young man, we allow you to ask questions.’
So he conducted a very rudimentary cross-examination; just asked them whether you saw this adultery being committed, please tell me where. One old man said it was in the palace grounds, the second old man said it was on a public highway, the third that it was on a playground, and the fourth in a stadium.
And then they say that the crowd which was howling for the blood of this woman was now howling for the blood of the old men. And the woman was acquitted.
And I’ve always told my students that Daniel was the spiritual ancestor of our profession and he practised the art of rudimentary cross-examination and I want you to be expert.
LI: How can you become an expert?
RJ: By watching great masters. And by picking up the principles of cross-examination. the high watermark of the technique, perhaps from your professor who himself has some experience – [but] the kind of professors that there are in our law schools they hardly know anything about it.
Then your own intelligence, your own industry, your own imagination.
LI: Is there any one thing you wish you’d known about cross-examination when you first started out in your career?
Not really – but watching some seniors, there were one or two very excellent seniors, I watched them and worked with them, but I didn’t have any formal teaching.
There are excellent cases of cross-examination – did you read the cross-examination of that American lawyer Clarence Darrow in that famous monkey case?
You know that in civilised America, the teaching of Darwin’s theory of evolution was a criminal offence because it was inconsistent with the biblical story of creation. There was this young teacher who disobeyed this law and was prosecuted.
And the prosecution examined Father Bryan, the greatest scholar of the Bible and the greatest supporter of the theory that every word of the Bible is gospel truth.
So a fantastic cross-examination by Clarence Darrow was recorded in the books and I’m just giving you some small illustration.
He asked the Father, do you believe that story of the snake in the Garden of Eden? ‘Yes I do.’
Father, do you seriously believe that the snake advised Mother Eve to eat the forbidden fruit? ‘Yes I do.’
And Father, you also believe that God cursed the snake and after the curse the snake crawled on its belly? He says, yes.
And then came Clarence Darrow’s masterstroke: he says, Father Bryan, have you any idea how the snake walked before he was cursed? The snake was not revolving on his head or on his tail?
Father Bryan collapsed in the witness stand.
Crawling on the belly is the only method by which the snake can move! (Jethmalani laughs)
LI: So does cross-examination need humour?
RJ: Of course. It needs humour, imagination, confidence, your bearing.
LI: A final, unrelated question, which some of our readers are keen to know about. Does the BJP have a formal stance on the entry of foreign law firms?
RJ: I don’t think that the BJP is opposed to it, at least not that I know of.
I don’t think the BJP has any reason to be opposed. It is usually the opinion of the bar.
LI: But are they in favour of it?
RJ: I don’t believe that any political party has taken a view on it.
LI: They don’t care?
RJ: It doesn’t matter, no.
LI: They’re not pushing it, either party?
RJ: I don’t think so.
LI: Individuals might be in favour? Like yourself?
RJ: If the bar supports it, no government will oppose it. [Jethmalani told Legally India in 2010 that he supported legal market liberalisation]