ART OF CROSS-EXAMINATION

THE TEN COMMANDMENTS OF CROSS-EXAMINATIOn

                   Much has been written about the “art” of cross-examination.  Not all of it, though, involves art.  Some of it involves natural talent, but most of it involves hard work.  In truth, three factors combine to create this “artistic” success -- personality, presence and persuasion.  These traits are often manifesting in the ability to think and react quickly.  But something else is involved as well -- something that trial lawyers often hold in short capacity. That something is humility, and the ability to know when to quit.  The art of cross-examination involves all of these traits, and more than a little luck.

                 This article is intended to provide yet another iteration of the Ten Commandments of cross-examination.  Here is the caveat, however -- one does not learn to be good at cross-examination by reading papers.  The successful artist learns by doing it, or watching others do it well; by reading trial and deposition transcripts or, better yet, by conducting the examination personally.  In this era, when there are too few trials to satisfy so many eager trial lawyers, cross-examination techniques can be practiced in depositions.  The trial lawyer must learn to get the “feel” of a good cross-examination; to develop a personal cadence and style.  The trial lawyer must learn as well to adapt to particular witnesses and different cases.  But he or she learns by doing.  In all this, of course, having some general rules in mind will not hurt. Hence, the  “Ten Commandments.”

A. The First Commandment: Thou Shalt Prepare

Of course, preparation is essential, but it would be surprising to learn how many trial lawyers fail to observe this basic principle.  A lawyer must prepare in order to know what topics to cover.  A lawyer must prepare because the jury will assess his or her depth of knowledge and commitment to the case by the demonstrated ability to handle the details of cross-examination.  If the lawyer appears vague on the details, the jurors may conclude that they, too, should be unconcerned about the finer points of the case.  Thorough preparation also will ensure that the witness appreciates the lawyer’s competence. Under such circumstances, the witness will be less willing to take advantage of the lawyer’s lack of first-hand knowledge.  It takes hard work, but dividends flow.

For a plaintiff’s cross-examination, preparation involves digging into every relevant background fact.  This includes employment history, medical history, prior statements, and every other important detail.  The cross-examination of the plaintiff can be a pivotal point at trial.  Jurors tend to pay special attention to this encounter because they recognize that it focuses the essential controversy of the case -- a battle between the plaintiff and the defendant.  A prepared and effectively accomplished cross-examination of the plaintiff, perhaps more than any other event at trial, can increase significantly the chances of a defense verdict.  Unfortunately, an unprepared and poorly accomplished cross-examination can produce the opposite result.

Because many cases are decided by expert testimony, an attorney should prepare thoroughly for the cross-examination of an opposing expert.  Generally, significant amounts of information must be gathered in advance of cross-examination.  As a starting point, it is important to master the deposition taken in the case at hand because that deposition represents the greatest opportunity for impeachment.  However, one should review depositions of the expert taken in other cases and be prepared to use them as well.  Experts sometimes forget what they say from deposition to deposition; this is particularly true for the professional witness.  In addition, expert witness databases are available from which to gather background information on a particular expert.  It is also a good idea to contact lawyers who have encountered the expert.  This creates an opportunity to build upon the good efforts of others.    Finally, it is important to obtain all of the expert’s prior writings and to subpoena the expert’s entire case file, including correspondence and other materials exchanged with opposing counsel or third parties.  In this regard, check for advertisements or expert listings and carefully review all aspects of the expert’s curriculum vitae to ensure that he or she has been accurate in every material respect.

One of the new and critical resources for information on an expert is the internet.  Many experts maintain their own web pages.  Several, for example, will list numerous areas of “expertise” to advertise their availability --  a fact that may diminish their credibility before the jury.  Several have questionnaires that can be completed by attorneys or potential plaintiffs to allow them to “evaluate” a case.  If the expert is employed by an academic institution, the institution’s web pages can be searched to learn what courses the expert may be teaching.  Many experts also are listed in internet expert databases.  Some even participate in newsgroup discussions.

In the example cited below, use of the internet proved to be dispositive.  The particular case involved a plaintiff who was suffering from a rare form of cancer (T-cell lymphoma).  She argued that her cancer was caused by the defendant’s product.  Although there was virtually no science to support a causative link, the plaintiff was able to enlist an advocate from the M.D. Anderson Cancer Hospital in Houston.  That physician was willing to state that, within a reasonable degree of medical probability, the defendant’s product caused the plaintiff’s cancer.  In reality, however, T‑cell lymphoma is a rare cancer whose cause remains unknown.  On cross-examination, the exchange between the expert witness and defense counsel took the following course:

Q.        You are on staff at M.D. Anderson Cancer Hospital?

A.         Yes.

Q.        Isn’t it true that M.D. Anderson Cancer Hospital has a web page?

A.         Yes.

Q.        Have you ever had any articles published on the M.D. Anderson web page?

A.         A few.

Q.        Do you remember one of your articles that appeared on the web page just three months ago?

A.         I think so.

Q.        In that article, you talked about T‑cell lymphoma, the very type of cancer involved in this case?

A.         I believe so.

Q.        Let’s be sure.  Is this the article that was published on the web page?

A.         Yes, that’s my article; it has my name on it.

Q.        I assume you knew that physicians and others might read this article?

A.         Yes, I assume so.

Q.        And, therefore, you wanted to be as accurate as possible?

A.         Of course.

Q.        Turn to page four of the article.

A.         Okay.

Q.        In this article, which you published on the web page just three months ago, you talk about what is known regarding the cause of T‑cell lymphoma, isn’t that right?

A.         Yes.

Q.        Isn’t it true that you said the following: “No one knows what causes T-cell lymphoma.”  Is that what you wrote just three months ago?

A.         That’s what it says.

This testimony not only discredited the witness, it  also led the trial judge to conclude that the physician lacked reliable scientific support for her opinions.  Judgment subsequently was entered for the defendant. Preparation: the first and most important commandment.

B. The Second Commandment: Thou Shalt Know Thy Objective

Irving Younger, an advocate of short cross-examination, often stated that the lawyer should “make three points and sit down.”   Sometimes, that is the way to go.  Often, however, one needs to spend time with the witness to develop several critical points to counter the impact of the direct examination.  Before initiating a cross-examination of any witness, the lawyer should clearly bear in mind those points he or she wishes to make with that witness.  And then, he or she should write them down.  These points also should be discussed with those who are assisting at trial.  Effective cross-examination cannot be accomplished without a clear understanding of which points are critical to the case, and which ones can be extracted most appropriately from each witness.  Only when understanding how to make these points and how to package them for the jury can a lawyer effectively communicate with the jury.  If the jurors are sitting in the box wondering where the cross-examination is headed, it is likely that the lawyer does not know where the cross-examination is headed.  Therefore, it is critical to make a list of what should be accomplished on cross.  Near the end of that cross-examination, it is a good idea to return to the list to ensure that all points were covered.

C. The Third Commandment: Thou Shalt Take Baby Steps

Patience is a virtue in cross-examination.  Delivery of key points is not just a destination; it is a journey on which the jurors should accompany the lawyer.  They must understand step-by-step where the cross-examination is headed.    It is called pacing;  it is called communication.

Here is an example.  Assume the case is being tried with an expert who has developed opinions, but has never submitted those opinions for peer review.  One way to handle the situation at trial is simply to ask the following question:

Q.        Have your opinions ever been submitted for peer review?

A.         No.

This exchange gets right to the point.  However, if the jury is to journey with the lawyer and understand the point, the following series of questions might be posed, to which the witness will likely answer “yes”:

Q.        You have heard about the peer review process?

Q.        And, by peers, we are talking about people in your area of science?

Q.        So, the peer review process involves a review of one’s opinions by his/her scientific peers or colleagues?

Q.        It allows one to get valuable feedback from other scientists about what they think of your opinions?

Q.        It can provide a sense of whether your opinions are generally regarded as supportable and reliable by other experts in your field?

Q.        Can this be very valuable in the scientific process?

Q.        Does one form of peer review involve standing up at meetings and sharing your views with peers or fellow scientists?

Q.        You are letting them know your opinions?

Q.        And you are discussing with them the basis of those opinions?

Q.        This allows your peers to comment on the strengths or weaknesses of your opinions?

Q.        You have been involved in this litigation for five years?

Q.        You have, for the last five years, been expressing these opinions in courtrooms around the country?

Q.        Have you ever stood in front of a group of your fellow scientists to share with them the opinions you have just shared with this jury on direct examination?

Q.        Have you ever, at any scientific meetings, sought feedback from your fellow scientists on whether they think you are right or wrong?

Q.        Is another form of peer review the publication of articles?

Q.        When you submit an article to a good journal, the article is peer-reviewed before it is published?

Q.        By that, I mean that the editor of the journal circulates the article to various scientists for their comments?

Q.        By this process, can the editor be more comfortable that the opinions expressed in the article are valid and supported by the evidence?

Q.        This, too, can be a valuable part of the scientific process?

Q.        Can it be a way of weeding out bad science?

Q.        Have you ever submitted a manuscript stating your opinions to a journal for publication?

Q.        Have you even prepared a manuscript stating the opinions you have expressed to this jury?

Q.        Have you in any form ever sought feedback from the publication peer-review process concerning your opinions in this case?

Q.        So, sitting here today, after five years of involvement in litigation, you have never taken the time to prepare a manuscript and submit it to a journal so that your fellow scientists can determine whether it is even worthy of publication?

This journey takes time.  That is not to suggest, however, that an enormous amount of time should be spent on every point.  That will become ponderous and the jurors will become bored.  The lawyer must gauge the importance of a particular point and assess what it will take to deliver that point effectively to the jury. Above all, don’t hurry.  Make the jury understand the point since a misunderstood point is no point at all.

D. The Fourth Commandment: Thou Shalt Lead the Witness (Usually)

Asking only leading questions is perhaps the oldest rule of cross-examination. It is an old rule because it is a good one.  Leading questions are most effective because they essentially allow the cross-examiner to testify and the witness to ratify.  The technique advances one of the important dynamics of the courtroom -- control.  Asking leading questions allows the cross-examiner to be forceful, fearless, knowledgeable and informative.  Good things come from leading questions.  So, when permitted, lead, lead, and lead.  Usually.

Be aware that leading questions also can grow tiresome.  No one likes to hear a hundred questions in a row that end with, “is that correct?”  The staccato questioning of a witness can sometimes make the cross-examiner appear overbearing and cold.  Thus, when implementing this ironclad rule of leading a witness on cross-examination, keep a few qualifying rules in mind as well.

First, learn how to lead the witness.  Firing questions that begin with, “isn’t it correct,” may remind the jurors of an FBI interrogation from an old movie.  A trial lawyer must search for ways to vary the routine.  For example, in an intersection collision case, a fact witness might be called by the plaintiff to testify on several key points that favor the plaintiff.  Yet, the one point that favors the defendant is the witness’s recollection that the stoplight was red.  On cross-examination, therefore, defense counsel might do the following:

Q.        Isn’t it correct that you were in a position to see whether the light was red or green?

A.         Yes.

Q.        And the light was red, isn’t that correct?

A.         Yes.

In isolation, these questions could effectively make the point.  To make the point more casually, however, and to bring the jury along for the ride, the cross-examiner might do the following:

Q.        As you were driving down the road, I guess you were paying attention to the lights ahead?

A.         Yes.

Q.        I mean, as a careful driver, I assume one of the most important things you do is look to see whether the light ahead is red or green?

A.         Yes.

Q.        And, as you were heading down Grand Street that Friday afternoon, and I’m talking especially about that afternoon, weren’t you paying attention as to whether the lights ahead were red or green?

A.         Yes.

Q.        And as you were driving down the road that day, was the light red or was it green?

A.         It was red.

Q.        Is there any doubt in your mind that the light was red on that day?

A.         No.

Q.        Pardon me?

A.         No, there is no doubt in my mind.

These are all leading questions, but not a single one contained the phrase, “is that correct,” or the lawyer-like introduction, “isn’t it a fact . . .”  Often, when questioning  witnesses who are not experienced testifiers, a kinder and gentler style of asking leading questions is the most effective.

A second caution or qualifying rule requires judgment in knowing when not to ask leading questions.  Sometimes a lawyer becomes so obsessed with controlling the witness that every question becomes a leading question.  This may not be required.  For example, when questioning a professional expert on the stand, leading questions in certain areas are absolutely unnecessary.  Examples:

Q.        Why don’t you just tell the jury how many times you have testified in a court of law?

Q.        How much money did you make last year testifying for plaintiffs’ attorneys around the country?

Q.        Of the thousands of medical journals published around the world, tell the jury how many you have asked to publish the opinions you have expressed in this courtroom?

Q.        How long has it been since you last treated a patient?

And so on.  Often, it is best to have the answer come from the mouth of the witness.  A lawyer asks these non-leading questions because he or she knows the answer and, if the witness waffles, the witness can be impeached.  The point is not that every question must be leading, but that the expert is never afforded an opportunity to expound on a question of critical importance.  When reaching this goal, look for the opportunity to use non-leading questions to break the monotony of repetitive leading questions.

E. The Fifth Commandment: Thou Shalt Know Thy Style and Adapt It to the Occasion

Good trial lawyers develop their own comfortable styles.  In this regard, it is important to observe other trial lawyers; good trial lawyers are impressive.  It is a mistake, however, to mimic them.  Excellent trial lawyers come in many different packages.  Some are funny; some are very serious.  Some have booming voices; some speak softly.  Some move around the courtroom; some never become detached from the podium.  Each trial lawyer must do what is comfortable for him or her, following the old adage:   Be true to thyself.

Just as there are effective points of style, however, there are also the negative.  It is effective to be aggressive on cross-examination; just don’t be a jerk.  Getting angry or losing one’s temper sometimes will imply that the witness got the best of the cross-examination.  Know the difference between tough and mean, between confidence and arrogance, and between control and dominance.  The jury will know the difference if the lawyer does not.

F. The Sixth Commandment: Thou Shalt Know When to Quit

All lawyers have experienced situations where they realize, half way through a cross-examination outline, that the battle is over -- either everything has been done with a particular witness, or there is little more that can be done.  It is either recognition of victory or acknowledgement of defeat.  One of the most difficult things for lawyers to do is to quit – to step away from the limelight. Yet, effective counsel will stay attuned to how the cross-examination is going as it is progressing.  Adaptability is the key.  Things may go better than hoped, or things may grow hopelessly worse.  As the cross-examination proceeds, it is critical to stay attuned to the courtroom atmosphere.  How is the jury responding to the performance?  How is the judge responding?  The best-laid plans of even the best cross-examination should be modified as circumstances dictate – even to the point of quitting.

Generally, there are two times to quit.  The first occurs when the witness has been discredited or has made a monumental concession.  There is no need for overkill, and the jury may resent counsel if he or she maintains the charge against the witness.  Even worse, the witness may negotiate a remarkable comeback.  The second time to quit is when the witness is killing the case or counsel.  Trial lawyers generally are not steeped in humility, and defeat ill becomes them.    The tendency is to keep fighting against all odds.  Nevertheless, trial counsel should have the judgment to admit defeat at the hands of a witness.  Occasionally, this result can be calculated before trial, if the reputation or deposition performance of the witness suggests that few points can be scored on cross-examination.  Sometimes, unfortunately, one learns this lesson under the bright lights of the courtroom.

This does not mean, however, that the lawyer staggers to counsel table and sinks into the chair.  Recall the scene in the movie, “My Cousin Vinnie,” when one of the defense counsel inartfully attempted to cross-examine a witness about his eyesight. Failing in the effort, counsel retired to counsel table only to proclaim: “Whew, he is a tough one.”  Trial lawyers often engage  illusion.  Make it appear that this witness actually can support the case in some respect.  Find some common ground with the witness so that the witness can conclude the examination by agreeing with counsel. 

In this regard, imagine a case where a prescription drug is alleged to have caused injury to the plaintiff. An extraordinarily qualified medical expert has provided an opinion that the plaintiff’s injury was caused by the medicine, and the expert cannot be moved from that causation opinion.  Within the limits of whatever latitude a judge might allow on cross-examination, try to commit the expert to the following general points:

§            You will agree that prescription drugs are important to the health of Americans

§            All medicines have side effects

§            Just because a medicine has side effects does not mean it should not be marketed

§            The FDA balances the risks and benefits of every prescription medicine in determining whether it should be marketed

§            Once the prescription medicine is marketed, the physician also balances the risks and benefits in determining whether to prescribe the medicine for a patient

§            The [prescription medicine at issue in the case] continues to be available on the market

§            The FDA has never ordered it to be removed from the market

§            The FDA has never determined that this medicine should be unavailable to patients in America

§            Indeed, physicians all over the country prescribe this medicine for patients who need it

In this fashion, the lawyer is driving home themes that support a defense of the pharmaceutical manufacturer and getting an effective witness to make these points.  The cross-examination will conclude on a high note. Be careful, however, so as not to allow a good witness to further damage the case on re-direct by opening new avenues of inquiry on cross-examination.

G. The Seventh Commandment: Thou Shalt Know What to Take to the Podium

Preparation is a good thing, and developing a good cross-examination outline is very useful.  Yet, in the heat of the battle, being organized, effective and quick to the point is critical.  Some attorneys take volumes of materials to the podium for cross-examination.  Some come armed with fifty-page cross-examination outlines.  All of this is acceptable, if the volume of materials is manageable.  No matter how hard the lawyer works on preparing cross-examination, however, surprise is inevitable.  The lawyer may want or need to pursue a line of questioning that is out of order in the outline. An article, document or transcript may be needed unexpectedly for impeachment.  All of these items must be accessible immediately.  Fumbling around, shuffling papers or searching for one’s place in an outline while the courtroom remains eerily silent does not convey a positive image. 

There are many solutions to this problem, but the most important one is economy.  Streamline the cross-examination outline in order to move around easily, making those points that are the most effective for the moment. Not every question need be written out.  This is cross-examination, not an oratory contest.  The jury will be able to tell the difference.  Have the confidence to work from a shorter outline, knowing that additional points can be made to fill the gaps.  If a lengthy cross-examination is anticipated, divide the outline into discrete parts, using a three-ring binder and a tabbing system.  This will allow for a focus on the details within single topics, minimizing the risk of getting lost.

Handling the impeachment material also requires preparation and organization.  Again, economy is the key.  Know the materials and have them readily available.  Combining these key materials into a collection of “maybe” documents will interfere with the ability to find what is needed when it is needed.  Key materials should be cross-referenced within the outline and organized in a series of folders to retrieve them quickly.  Having an assistant who thinks two steps ahead and follows the outline may be the most efficient way to handle these materials.

Impeaching with prior testimony also can be tricky since this requires some knowledge that an impeachment opportunity exists.  One must locate the impeaching material and lay the foundation for use of that material. Finally, the impeaching material must be used effectively.  The paramount rule on impeachment is this:  use impeachment sparingly and only for telling points.  If an expert testifies at trial that he has been deposed sixty-one times, but in his deposition he acknowledged sixty-two times, the inconsistency usually is not worth the impeachment effort.  With that rule in mind, preparation for cross-examination should focus on those concessions made by the witness in prior transcripts that are essential to the case.  Include these points in the outline and be sure the outline tracks the precise question asked in the prior transcript.  Then, have the transcripts marked in order to access the impeaching portion easily.  Not every witness transcript needs to be at the podium, however -- only those that will be used.  The same rules apply for any other impeaching material – whether published articles, statements on a web site, letters or reports.

Now, a word about paperless trials.  Most trial lawyers are heeding the trend to place materials in electronic form and eliminate paper in the courtroom.  That trend is likely to continue. With judges forcing parties to use electronic media in the courtroom, defendants should be concerned no longer about presenting a “high tech” case in most venues.  All parties will be required to do so.  However, the use of electronic media can be a blessing and a curse.  It is a blessing because it allows ready access to materials that are needed to cross-examine a witness.  Pushing the right button or waving a wand over the right bar code produces what is needed.  Yet the curse involves learning how to handle this technology.  All the necessary software must be learned and loaded for every witness; the right materials must be available instantly for the witness and the  jury.  This requires practice. Once mastered, the presentation can be powerful and even intimidating to an opposing witness.  Find the software that is “friendliest” and learn it.  Use outside consultants if necessary.  Once the process is familiar and its utility realized, lawyers will be inclined to use technology even if not required by the trial judge.

H. The Eighth Commandment: Thou Shalt Know  Thy Audience

Consider a situation where the examiner is masterful,  the witness is bested on technical points,  and impeachment is accomplished with scientific journals.  The entire direct examination is facing destruction with laser-like precision as the examiner bombards the witness with technical questions.  The problem?  The jury has no idea what is going on.  This situation sometimes makes for a good appellate record, but it makes for a bad trial result.

A gifted trial attorney is able to reduce the technical to the simple without appearing to patronize the jury.  This is important in all phases of the trial, but it is most important in cross-examination when counsel is attempting to undermine the case of an opponent through the testimony of the opponent’s witnesses.  If the jury does not understand that an opponent has been bested, time has been wasted.  If counsel is moving laboriously through technical points and boring the jury in the process, both time and substance are lost.  The jury will grow angry.  There are few truisms in the business of trying cases, but there is one: if the jury is mad at counsel, the case is lost.

Effective trial lawyers remember that the important audience is seated in the jury box.  The jury must understand the case.  In particular, jurors must understand the points being made on cross-examination.  Yet again, this starts with preparation.  Decide beforehand what points are important to the cause and whether they can be made effectively during cross-examination.  Sometimes it is simply not worth investing the time and energy or invoking the jury’s tolerance to make technical points with an adverse witness.  Some of these points can be deferred until  a party’s own witness is on the stand.

If a point is worth making on cross-examination, decide how best to make it.  The jury must understand the context of a given point.  Use simple words in simple sentences and  reinforce points that are conceded by a witness:  “You said that it is standard practice to perform x-rays under those circumstances.  Is this something you learned in your medical training?” 

Be sure that when the witness concedes a point, the jury understands the advantage.  Perhaps that involves some dramatic flair, if that is counsel’s style -- a change in tone of voice, or movement from the podium. Perhaps counsel did not hear the answer, or fears that the jury did not, and asks the witness to repeat it.  All of this involves style and judgment.  Most of all, however, it involves telling the simple story to the jury.

Another effective way to make points is to highlight them for the jury.  Some judges will allow counsel to enumerate key concessions on a flip chart or an Elmo. (Though keep in mind that some judges do not).  This can be an important way for jurors to remember the points made.  They hear the points, then they see the points.  Any time a point can be visually made or recorded, do so.  It allows counsel to relate back to this visual point during closing argument, and it creates a more enduring cross-examination memory for the jury.  Demonstrative exhibits or other visual aids generally make cross-examination more interesting, and the more interesting the cross-examination, the more attention the jury will give it. 

I. The Ninth Commandment: Thou Shalt Know the Rules of Evidence

Much of cross-examination is style and technique, but that is only veneer.  It is the substantive content that holds the case together.  Counsel must introduce EVIDENCE during cross-examination.  The admission of evidence requires a keen understanding of the rules of evidence and how to argue them.  The best-planned cross-examination will be ineffective if counsel cannot navigate the rules of evidence.

            The starting point is to know the rules of evidence.  That does not involve reviewing law school notes from Evidence 101, or skimming through Wigmore’s LAW OF EVIDENCE.  It means, however, that the rules of evidence must be read again. It means that cases and articles must be reviewed.  Generally, lawyers who are not also law professors do not maintain encyclopedic recollection of the rules of evidence.  Yet these rules must be refreshed so that they can be argued usefully. 

In addition to this general re-acquaintance, be sure to identify those rules that hold particular importance to the trial.  Different rules come into play in different trials.  Know well the ones that count.  Anticipate problems with the authenticity and admissibility of documents needed for cross-examination.  Be sure to contemplate an argument supporting the admissibility of evidence important to every aspect of cross-examination.  Prepare trial briefs or motions in limine, and raise problem areas in advance of cross-examination.  Be sure the cross-examination moves as seamlessly as possible.  All of this increases the chances of winning at trial.  Failing that, it makes for a good appellate record.

J. The Tenth Commandment: Thou Shalt Know Thy Judge

Not all judges are created equal.  Some know the rules of evidence, but some do not.  Some are courteous and patient, and some are not.  Some will impose restrictions on cross-examination; some will not.  Before trying a case to an unfamiliar judge, find out about that judge.  Better yet, if there is time, observe the judge during a jury trial.  Talk to attorneys who have tried cases in front of the particular judge, and otherwise gather information from every conceivable source, seeking out detail.^[6]  Find out how the judge enforces the rules of evidence, how documents can be used during cross-examination, whether there are time restrictions, where counsel must stand during cross-examination, whether the judge requires the witness to answer specific questions with no elaboration, how documents are used with the witness, and so forth.  Knowing the peccadilloes of a particular judge will provide a measure of comfort, allowing counsel to focus on important substantive issues.  If one’s cross-examination is disrupted by a judge who is critical of perceived infractions, the pace and content of the cross-examination will be  disrupted.  For defense lawyers, this is a lesson that must be learned early in trial since cross-examination is one of the more immediate events.

III.

CONCLUSION

Reverting to lessons learned at the outset:   Practice.  Practice.  Practice.  Keep these commandments in mind until they become second nature.  Once comfortable with the technique of cross-examination, it is easier to relax.  Counsel will appear more confident, and the jury will sense this confidence.  Such confidence will make counsel more effective in every phase of the trial and increase the chances of winning the case which, after all, is the reason for this business.

ENDNOTES

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^†           Submitted by the author on behalf of the FDCC Trial Tactics Section.

^[1]           Perhaps the late Irving Younger prepared the best-known version of the Ten Commandments of Cross-examination.  See Younger, The Art of Cross-Examination, ABA Monograph Series No. 1 (ABA Section on Litigation 1976).  Younger’s Ten Commandments are: (1) be brief; (2) use plain words; (3) use only leading questions; (4) be prepared; (5) listen; (6) do not quarrel; (7) avoid repetition; (8) disallow witness explanation; (9) limit questioning; and (10) save the ultimate point for summation.  These are good general rules, but this article makes an effort to supplement Younger’s commandments and build on them.  Some overlap, though minimal, is inevitable.

^[2]           The risk of extensive preparation is the tendency to show the jury all that counsel knows.  That can lead to a lengthy, tedious cross-examination which does not capture the attention of jurors.  Preparation, therefore, includes not just learning all that one can, but distilling the key points and determining how to convey them.

^[3]           Internet search engines are becoming more sophisticated and far-reaching.  Simply typing in the expert’s name in a search engine may lead to a number of “hits” in various categories.  These would include news reports, published cases, administrative agency submissions, and more.

^[4]           The case in question was Anderson v. Bristol-Myers Squibb, Civ. No. H-95-003 (S.D. Tex. 1998).  The twenty-five-page opinion is not published, but it is available from the author or from Gene Williams, an FDCC member who was also involved in the Daubert hearing.

^[5]           An ancillary advantage to having the witness provide the answer, rather than supplying a sterile “yes” or “no” response, is to increase the odds that the witness will appear evasive.  If the question is buttressed with accurate information, and the witness simply concedes the point, the witness may appear candid and credible.  Making the witness provide a more narrative response to points that must be conceded may cause the witness to omit or de-emphasize certain facts.  The questioner then is placed in the position of identifying the incomplete nature of the witness’s response, perhaps leaving the impression with the jury that the witness is not a reliable fact-giver.  All of this must be keyed to the witness in question.  There are some witnesses who should be granted little latitude on cross-examination.

^[6]           Increasingly, trial judges are creating their own rules of courtroom behavior to supplement the general provisions of court decorum in a particular jurisdiction.  Some of these provisions can be onerous, imposing time limits on witness examination and otherwise restricting the courtroom latitude of trial attorneys who have become accustomed to a more generous approach.  Some of these rules may affect what a trial attorney is allowed to do on cross-examination.

(Author’s bio)

            Timothy A. Pratt is a trial attorney and partner in the firm of Shook, Hardy & Bacon, L.L.P., based in Kansas City, Missouri.  He received his J.D. degree from Drake University Law School, where he was editor-in-chief of the Drake Law Review.  Following graduation, Mr. Pratt clerked for the Honorable Floyd R. Gibson, chief judge of the United States Court of Appeals for the Eighth Circuit.  Specializing in the defense of products liability and toxic tort cases, Mr. Pratt has served as national and regional trial counsel for several companies.  He has tried cases to verdict in numerous states, and he has served as a faculty member for the National Institute of Trial Advocacy for nearly 20 years.  Mr. Pratt is a member of the Missouri, Texas and Iowa bar associations, and the Federation of Defense & Corporate Counsel.

CAPITAL PUNISHMENT

                                       The phrase 'capital punishment' comes from the Latin word for the head. A 'corporal' punishment, such as flogging, takes its name from the Latin word for the body. Capital punishment is the practice of executing someone as punishment for a specific crime after a proper legal trial. It can only be used by a state, so when non-state organisations speak of having 'executed' a person they have actually committed a murder. It is usually only used as a punishment for particularly serious types of murder, but in some countries treason, types of fraud, adultery and rape are capital crimes.

                   There is now steadily increasing support for abolishing capital punishment. On 18 December 2008, the United Nations adopted resolution , which is a reaffirmation of its call for a moratorium on the use of the death penalty passed in December the previous year. The resolution calls for states to freeze executions with a view to eventual abolition.

                   The World Coalition against the Death Penalty was created in Rome in 2002, and 10th October 2006 was World Day against the Death Penalty. With the time, nearly all European and several Pacific Area states (counting Australia, New Zealand and Timor Leste), and Canada have abolished death penalty. The majority of states in Latin America have absolutely abolished capital punishment, however, a few countries, like Brazil, use death penalty only in special situations, for example, treachery committed during wartime. There are still quite a few states and countries that retain the use of capital punishment, including the United States (the federal government and 36 of its states), Guatemala, majority of the Caribbean, Japan, India, and Africa (Botswana and Zambia). In almost all retentionist countries, capital punishment is granted as a penalty for planned murder, espionage, treachery, or as part of military justice. 

                      In India, capital punishment is granted for different crimes, counting murder, initiating a child’s suicide, instigating war against the government, acts of terrorism, or a second evidence for drug trafficking. Death penalty is officially permitted though it is to be used in the ‘rarest of rare’ cases as per the judgement of Supreme Court of India. Amongst the retentionist countries around the world, India has the lowest execution rate with just 55 people executed since independence in 1947.

                      Recently, the case of Mohammad Afzal, a terrorist who was found guilty of instigating the attack on the Indian Parliament House, has cropped up the controversy regarding the Indian law of capital punishment.

                      India stands poised between the global trend to end the death penalty and those nations that continue to execute. Like many of the diminishing number of nations that still apply the death penalty, over the last two decades, India has reduced the number of executions carried out.

                      The Indian judiciary has ruled that the death penalty for murder must be restricted to the "rarest of rare" cases, but this instruction has been contradicted by the legislature increasing the number of offences punishable by death.Since the condition of the ‘rarest of rare’ is not exactly defined, sometimes even less horrific murders have been awarded capital punishment owing to poor justification by lawyers. Since 1992, there are about 40 mercy petitions pending before the president. The death penalty is mandatory under two of the relevant laws, including for drug-related offences. Death sentences have been imposed on people who may have been children at the time of the crime, and on people suffering from mental illness. There are grave concerns about arbitrariness and discrimination in the processes that lead to people being sentenced to death. Such factors would render India's use of the death penalty to be in violation of international laws and standards.

              As an emerging global and regional power and a party to the International Covenant on Civil and Political Rights and other international human rights treaties, India has an opportunity to exercise regional leadership and to strong signal of its determination to fully uphold human rights by abolishing the death penalty.

                In the past three decades, great steps have been made towards a world free from executions. In 1980 only 25 countries had abolished the death penalty for all crimes. That figure now stands at 91, with a further 11 countries having abolished the death penalty for 'ordinary' crimes but retained it for offences such as War against nation or under military law. Thirty-three countries are  to be 'abolitionist in practice' in that they retain the death penalty for ordinary crimes such as murder but have not executed anyone during the past 10 years and are believed to have a policy or established practice of not carrying out executions, meaning that a total of 135 of the world's nations have turned their back on capital punishment in law or practice.

             The worldwide trend towards abolition is strong and clear. Outside China, an execution is becoming an increasingly rare event.  In Africa only five countries executed in 2007; Belarus is the only European country that continues to use the death penalty; and the USA is the sole country in the Americas to have carried out any executions since 2003.

                  This trend was most recently illustrated by the world community voting at the United Nations General Assembly for a moratorium on executions. The resolution was passed on 18 December 2007 by 104 votes to 54 (with 29 abstentions). Regrettably, India voted with the minority. The resolution is clear in its aim and instructs countries to impose an immediate moratorium on executions as a first step towards abolition.

               At the end of 2007, some 14 countries in Asia Pacific still retained the death penalty, including China, where executions outnumber those in the rest of the world combined. However, there is movement towards abolition in the region. In 2006 and 2007 respectively, the Philippines and the Cook Islands abolished the death penalty joining those 17 other Asia Pacific countries that have abolished the death penalty for all crimes.27 countries have now abolished the death penalty in law or in practice in the Asia Pacific region. In South Korea and Mongolia there have been legislative initiatives to abolish the death penalty. There have also been increased levels of regional activism against the death penalty by individuals and civil society groups.

             Supreme judgments in death penalty cases , 1950-2006 highlights the essential unfairness of the death penalty in India by analysing evidence found in Supreme Court judgements of abuse of law and procedure and of arbitrariness and inconsistency in the investigation, trial, sentencing and appeal stages in capital cases.

             It bring objectivity to the debate on the death penalty in India and, by so doing, to persuade the public and decision-makers that society will be better off by outlawing the punishment. The government of India will not disclose how many people have been executed and how many are awaiting execution today.

                          Under the ordinary criminal law, all trials involving a possible death sentence are initially held before a District and Sessions Court at state level. Death sentences imposed in such trials must be reviewed by the High Court of the same state, which has the power to direct further inquiry to be made or additional evidence to be taken upon any point bearing on the guilt or innocence of the accused. In the High Court, a bench comprising a minimum of two judges must, on appreciation of the facts, come to its own conclusion on guilt and award sentence as deemed fit in the circumstances of the case. Based on its assessment of the evidence on record, the High Court may confirm the death sentence or impose another sentence in its place; annul the conviction and convict for any other offence of which the Sessions Court might have convicted the defendant, or order a new trial on the basis of the amended charge; or acquit the defendant.

                          The High Court serves as the first court of appeal for a person sentenced to death, except under some anti-terrorist legislation where the Supreme Court of India is the first appellate court. Where a death sentence has not been imposed by a trial court, the State can appeal to the High Court to enhance the sentence to one of death.

                     There is no automatic right of appeal to the Supreme Court, except in cases where a High Court has imposed a death sentence while quashing a trial court acquittal. Even where a High Court enhances a trial court's sentence to that of death, there is no automatic right of appeal to the Supreme Court. 'Special leave' to file an appeal with the Supreme Court has to be granted by the High Court or by the Supreme Court itself.

                   The judicial process in capital cases comes to an end once the higher courts have confirmed the death sentence. At this stage, the defendant/accused, can file a mercy petition with the state or national executive. Under Articles 72 and 161 of the Constitution of India, the state governor and the President of India have the power to grant pardon or commutation of sentence. These constitutional provisions implicitly allow for a two-tier process of seeking commutation, first from the state governor and then from the President. The executive also has the power under the Indian Penal Code to commute a death sentence without the consent of the offender.

                Indian Supreme Court judgment in Bachan Singh v. State of Punjab "A real and abiding concern for the dignity of human life postulates resistance to taking a life through law's instrumentality. That ought not to be done save in the rarest of rare cases when the alternative option is unquestionably foreclosed.' 

                    During the drafting of the Indian Constitution between 1947 and 1949, several members of the Constituent Assembly expressed the ideal of abolishing the death penalty, but no such provision was incorporated in the Constitution. Private members' bills to abolish the death penalty were introduced in both houses of parliament over the next two decades, but none of them was adopted.

                    In 1973, the Supreme Court of India upheld the constitutionality of the death penalty for the first time in the case of Jagmohan Singh v. State of U.P. In the same year, a new Code of Criminal Procedure was adopted. The new Code required judges to note 'special reasons' when imposing death sentences and required a mandatory pre-sentencing hearing to be held in the trial court. The requirement of such a hearing was obvious, as it would assist the judge in concluding whether the facts indicated any 'special reasons' to impose the death penalty.

                  In 1980, the Supreme Court again upheld the constitutionality of the death penalty in the key case of Bachan Singh v. State of Punjab (with 7 other cases), although the bench was not unanimous. The judgment called for aggravating and mitigating circumstances with reference to both the crime and the convicted prisoner to be considered in passing sentence and emphasised that the death penalty should be used only in the 'rarest of rare' cases.

                    In 1991, a Supreme Court bench again upheld the constitutionality of the death penalty in Smt. Shashi Nayar v. Union of India and others . The Court did not go into the merits of the argument against constitutionality, arguing that the law and order situation in the country had worsened and now was therefore not an opportune time to abolish the death penalty. An argument which assumes executions address such situations.

                In recent years, the Supreme Court has reversed two practices that had been observed for several decades in capital cases. The first practice was not to impose a death sentence where the judges hearing the case had not reached unanimity on the question of sentence or of guilt. The second was not to impose a death sentence on a person who had previously been acquitted by a lower court. Since 1999 and 2003 respectively, the Supreme Court has imposed or upheld death sentences in such cases.

                        It was bound by certain limitations. For example, the socio-economic background of accused /defendants does not normally emerge from the rulings, as it is judicial practice in India to avoid references to caste, community, religion and other socio-economic factors relevant to the victim or the accused, unless seen to be of direct relevance to the adjudication of the case. It is therefore almost impossible to analyse the impact of the application of the death penalty on members of particular religious or caste groups through a study of the judgments. There is an urgent need for more detailed studies, including detailed analyses of individual cases. Other countries have been shown to be using the death penalty in a highly prejudicial manner against individuals based on their ethnic origins or similar factors. For example, in the United States of America the death penalty has been shown to be disproportionately used against African Americans.

                It is correct that it is impossible for a judicial system to completely insolate itself from prejudices present in the society it serves. Therefore the only way to ensure that individuals are not subjected to the death penalty because of prejudice against their ethnic or social background is to abolish the death penalty.

                       The hanging of a person by the neck, at the end of a legal process involving the executive and the judiciary at various stages, was found in the study to be profoundly arbitrary. Taken as a whole, the cases indicated abuses of law and procedure throughout the legal process from the initial collection of evidence (including interrogation of the accused) by police, to the consideration of evidence by the courts, to the process of sentencing and appeals. As regards sentencing, the study focused on the results of judicial discretion as well as on the process itself, which was found to be flawed. The study also looked at the executive process of consideration of mercy petitions.

        

                    Consideration of evidence in Indian situation is a shocking fact that most death sentences carried out  in India are based on circumstantial evidence alone. In the absence of forensic facilities, the testimony of witnesses is crucial, but there is widespread acknowledgement of the use by police and prosecution of stock or professional witnesses. A  study of Supreme Court judgments in capital cases  found that the most common defence put forward was that of false implication. This also concluded that the reason this defence was so common was that it was very often true.

Our convictions are based largely on oral evidence of witnesses. Often, witnesses perjure themselves as they are motivated by caste, communal and factional considerations. Sometimes they are even got up by the police to prove what the police believes to be a true case. Sometimes there is also mistaken eyewitness identification and this evidence is almost always difficult to shake in cross-examination. Then there is also the possibility of a frame up of innocent men by their enemies. There are also cases where an overzealous prosecutor may fail to disclose evidence of innocence known to him but not known to the defence. The possibility of error in judgment cannot therefore be ruled out on any theoretical considerations. It is indeed a very live possibility.

                     Justice Bhagwati's concerns in 1982 reflected concerns raised 35 years earlier by members of India's Constituent Assembly when they drew up its constitution. The concerns unfortunately remain relevant today.

                     International laws and standards pertaining to the death penalty are clear on this issue and state the death penalty can only be imposed after exacting legal standards. For example, Safeguard  of the Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted by the UN Economic and Social Council in 1984, states: "Capital punishment may only be carried out pursuant to a final judgment rendered by a competent court after legal process which gives all possible safeguards to ensure a fair trial, at least equal to those contained in article 14 of the International Covenant on Civil and Political Rights, including the right of anyone suspected of or charged with a crime for which capital punishment may be imposed to adequate legal assistance at all stages of the proceedings."

                  Any judicial system that carries out executions runs the ever present risk of executing those innocent of the crime for which they were condemned. Such risks are compounded when the judicial system lacks fairness and adequate safeguards.

                   A number of cases examined in the present study illustrate how innocent persons have been sentenced to death on the basis of false and fabricated evidence, often used in manipulated investigations and prosecutions, with investigating and prosecuting agencies acting in collusion. The object is often to protect influential offenders. The study revealed a number of capital cases in which confessions appear to have been procured forcibly. The Supreme Court's acceptance of evidence that might not have been given voluntarily in a number of cases tried under the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA) is a matter of particular concern.

                   In a 1994 Supreme Court judgement  Rampal Pithwa Rahidas v. State of Maharashtra ,the Court observed that 'the manner in which the investigating agency acted in this case causes concern to us. In every civilised country the police force is invested with the powers of investigation of the crime to secure punishment for the criminal and it is in the interest of society that the investigating agency must act honestly and fairly and not resort to fabricating false evidence or creating false clues only with a view to secure conviction because such acts shake the confidence of the common man not only in the investigating agency but in the ultimate analysis in the system of dispensation of criminal justice.'

                        I the above case case, the trial court had sentenced eight people to death. The High Court upheld the sentences of five of them, but the Supreme Court acquitted them all, noting that the main evidence against them was not trustworthy. The Court noted sarcastically that the main witness's memory constantly improved (his testimony at the trial three years after the incident was observed to be far more detailed than his confessional statement recorded a few days after the incident). The Court concluded that the witness was pressured by the police to give evidence because "the investigation had drawn a blank and admittedly the District Police of Chandrapur was under constant attack from the media and the public."

                   In a judgment in 2001 Sudama Pandey and others v. State of Bihar, relating to a case in which the trial court had sentenced five people to death for the attempted rape and murder of a 12-year-old child, the High Court had commuted the sentences, but the Supreme Court noted that it was unfortunate that the High Court did not also properly review the evidence. Acquitting the accused, the Supreme Court noted that both the trial court and the High Court had committed a serious error by appreciating circumstantial evidence, resulting in a miscarriage of justice. In an indictment of the lower judiciary, the Supreme Court remarked: "The learned Sessions Judge found the appellants guilty on fanciful reasons based purely on conjectures and surmises -- It is all the more painful to note that the learned Sessions Judge, on the basis of the scanty, discrepant and fragile evidence, found the appellants guilty and had chosen to impose capital punishment on the appellants."

                   In Krishna Mochi and others v. State of Bihar a three-judge bench disagreed over the sentence imposed on one of the appellants, while agreeing on the conviction and upholding the death sentence awarded to three other appellants. In a dissenting judgment, Justice Shah argued that the shortcomings in the investigation and the evidence that only proved the presence of the accused at the scene of the offence meant that this could not be a fit case for imposing the death penalty. On the other hand, he observed, "this case illustrates how faulty, delayed, casual, unscientific investigation and lapse of long period of trial affects the administration of justice which in turn shakes the public confidence in the system."

           Of the over 700 cases examined in the study, over 100 were found to have resulted in acquittals by the Supreme Court. In a small number of cases the accused were sentenced to life imprisonment by the trial court, the sentence was enhanced to death by the High Court, and the accused were then acquitted by the Supreme Court. These are perhaps the most blatant examples of the arbitrary and deadly potential of the criminal justice system. In a considerably larger number of cases the accused were sentenced to death by the trial court, had their sentence commuted by the High Court, and were acquitted of the capital charge by the Supreme Court. While it may be tempting to use these cases as proof of the benefits of a hierarchy of courts where errors are ultimately corrected, the reality reveals a number of gravely concerning features. First, in all such cases both of the lower courts were in error. Second, the errors were corrected only after the convicted person had spent a long time in prison, with a substantial part of it under sentence of death. Some of these people had been in prison for over 10 years before being acquitted.

                 It is pertinent to keep in mind that the cases discussed in the study are cases in which errors were uncovered by the Supreme Court. Given the large number of special leave petitions that have been dismissed summarily by the Supreme Court and the absence of a mandatory appeal to the Supreme Court, it is impossible to quantify the number of capital cases in which errors may have slipped through the system. Similarly, it is impossible to quantify those errors that the Supreme Court may have missed despite examining the material available to them. An analysis of cases since 1999 where death sentences were upheld by non-unanimous benches of the Supreme Court indicates that dissenting voices were raised largely because of concerns that the evidence on record was insufficient to prove guilt, or that there were other errors fatal to the prosecution case. The study also shows that the Supreme Court has ignored evidence that lawful procedures have been bypassed and upheld death sentences that may have been founded on wrongful convictions. Given the absence of a higher judicial forum and the rarity of review proceedings, the vagaries of such cases hardly ever come to light.

               The study identified a number of concerns about legal representation in capital cases. The concerns included lawyers ignoring key facts of mental incompetence, omitting to provide any arguments on sentencing, or failing to dispute claims that the accused was under 18 years of age at the time of the crime despite evidence to the contrary. These facts came to light only because they were observed by the Supreme Court in their judgments. On other occasions the Supreme Court may have disregarded evidence of the absence or ineffectiveness of counsel, leading the authors of the study to conclude that the number of accused in capital trials who were been served by inadequate counsel is probably high but remains unknown.

              It should not be necessary to underline the importance of adequate legal representation for those facing trial in capital cases, particularly at the earliest stages. For them it can literally be a matter of life or death. Crucially, the higher judicial fora hearing appeals in India are constrained by being able to consider only the evidence brought before the trial court. Although a High Court has the powers to issue directions for fresh evidence to be introduced, these powers are rarely used. Hence the quality of defence evidence at the trial stage is of utmost importance. It is not just evidence relating to the innocence or culpability of the accused which can be vital, but also evidence relevant to the court's consideration of mitigating factors when deliberating on sentence -- social, personal, psychological or cultural information that shows the context of the crime and the character of the accused. The absence of such evidence in the sentencing process can seriously prejudice the way in which the case is treated through the remaining judicial process.

                With a large number of the accused in capital trials poor and illiterate (reflecting the general picture for the criminal justice system as a whole), even where individuals may be able to afford legal representation, the quality, ability and experience of counsel in capital cases are unknown variables. This is particularly problematic as regards legal aid counsel.

                  The study noted the lack of legal aid and legal representations immediately after arrest and during remand and bail proceedings. Legal representations at these stages can play a vital role in preventing torture and ill-treatment, which can result in forced confessions. This is particularly problematic in cases where detainees are detained under anti-terrorism legislation, where the law has allowed for long periods in police detention and for confessions made to a police officer to be used as evidence. Furthermore, the study noted that the need for legal aid and legal representation during preparation of mercy petitions and in filing writ petitions in the Supreme Court or the High Courts after completion of the appeals stage has not been adequately addressed, either by the state -- which has responsibility for ensuring provision of such services -- or by the Supreme Court in its adjudication of individual cases.

               The study highlighted cases of people sentenced to death under successive special anti-terrorist laws. Major concerns include the broad definition of 'terrorist acts' for which the death penalty can be imposed; insufficient safeguards on arrest; provisions allowing for confessions made to police to be admissible as evidence, unlike the provisions under ordinary criminal procedure; obstacles to confidential communication with counsel; insufficient independence of special courts from executive power; insufficient safeguards for the principles of presumption of innocence; provisions for discretionaryin camera (closed) trial; provisions for secrecy of witnesses' identity; and limits to appeal.

                The cases examined in the study that have been tried under special anti-terror laws not only reveal capital trials in which safeguards for fair trial have been inadequate; they also raise concerns that the suspension of safeguards has been resorted to far too broadly, encompassing cases that should not have been tried under special legislation at all, such as kidnapping and communal violence. The fact that the death penalty is involved only serves to heighten the concern.

                Devinder Pal Singh Bhullar was sentenced to death by a designated court in 2001 under the Terrorist and Disruptive Activities (Prevention) Act 1987 (TADA) after being found guilty of involvement in the 1993 bombing of the Youth Congress Office in Delhi, which led to the deaths of many persons (Devender Pal Singh v. State, N.C.T. of Delhi and anr. ((2002) 5 SCC 234)). The prosecution's case was that he had voluntarily confessed to his role in the bombing to the police. The prosecution relied almost solely on this alleged confession by the accused, which he subsequently retracted. The Supreme Court, sitting as a court of first appeal under the TADA, confirmed the death sentence in 2002.

                  In a dissenting judgment, Justice Shah of the Supreme Court recommended acquittal of the accused, doubting the veracity and voluntary character of a confessional statement made to a police officer. Justice Shah concluded that there was no evidence to convict Bhullar and that a dubious confession could not be the basis for awarding the death sentence. But the majority bench, upholding the sentence, merely suggested that such concerns could be taken into account by the executive during their decision on clemency.

                 Devinder Pal Singh Bhullar's mercy petition remains pending before the President. He is currently on death row in Tihar Jail, Delhi.

                 While successive Supreme Court constitutional benches have favoured judicial discretion rather than the setting out of detailed guidelines on sentencing, the study demonstrated that judicial discretion has proved inadequate as a safeguard against arbitrariness. The judgments in numerous cases demonstrate that the courts, including the Supreme Court, have not always followed the existing law and jurisprudence on death penalty cases consistently. In the same month, different benches of the Supreme Court have treated similar cases differently, often apparently reflecting their own positions for or against the death penalty. While in one case the defendant's youth could be a mitigating factor sufficient to commute the death sentence, in another it could be dismissed as a mitigating factor. In one case the gruesome nature of the crime could be sufficient for the Court to ignore mitigating factors and in another case a similar crime was clearly not gruesome enough.

                  In August 2004, Dhananjoy Chatterjee was executed for the 1990 rape and murder of a girl in the apartment building where he worked as a guard.

Dhananjoy Chatterjee

Natta Mallick, who executed

                He was the first person to be hanged in India for over six years, ending a de facto moratorium on executions

                Three days after the execution, a similar case of rape and murder of a child was heard on appeal by the Supreme Court (Rahul alias Raosaheb v. State of Maharashtra . The victim in the former case was 13 years old; in the latter she was four-and-a-half. Neither of the accused had a previous criminal record, and in neither case was any report of misconduct while in prison. Yet the Supreme Court deemed Dhanajoy Chatterjee a menace to society and not only was his sentence upheld by the Court (Dhananjoy Chatterjee alias Dhana v. State of West Bengal , but he was subsequently hanged. In Rahul's case, he was not deemed a menace, and his sentence was commuted to life imprisonment.

                  It is ironic that even while upholding Dhananjoy Chatterjee's death sentence in 1994, Justice Anand of the Supreme Court accepted that there were huge disparities in sentencing. He noted: 'Some criminals get very harsh sentences while many receive grossly different sentence for an essentially equivalent crime and a shockingly large number even go unpunished thereby weakening the system's credibility.' Two contradictory events over three days show that a decade later, the inconsistencies remain. 

              The other point putting for discussion that  delay in  carrying out of sentence. The  prisoners sentenced to death may wait many years while their cases are under consideration. The length of time a person spends on death row presents conflicting problems. Too short a time will not allow for an adequate appeals process or for further evidence of the possible innocence of the person to emerge. However prolonged periods on death row -- as occurs in such countries as Japan, the USA and Pakistan -- leave the individual facing the constant strain of living with the fear of execution, almost always in harsh prison conditions. It believes that there is no 'appropriate' length of time a prisoner should be held before execution. The dilemma described above provides another important reason why the death penalty should be abolished.

                   The study showed great disparities in whether and for how long a delay in the process would be considered by the Supreme Court to justify commutation of a death sentence. Other courts have laid out clear standards for the time prisoners can spend under sentence of death before their sentences are commuted. 

                    Following a long period of legal ambiguity, during which time a number of death sentences were commuted on grounds of delay, while others were not, in 1988 a constitutional bench of the Supreme Court ruled that an unduly long delay in execution of the sentence of death would entitle an approach to the Court, but that only delay after the conclusion of the judicial process would be relevant, and that the period could not be fixed (Smt. Triveniben v. State of Gujarat ). This ruling effectively moved the focus of the question of delay away from the judicial process to that of the process of executive clemency.

                    In the above said  Dhananjoy Chatterjee's case, he  had completed over 14 years in prison, most of them under sentence of death and in solitary confinement, before he was executed in August 2004. No action had been taken on his case for nine years because the West Bengal state officials had failed to inform the High Court of the rejection of his mercy petition by the state governor. These facts were not considered a ground for commutation by the Supreme Court, which refused to be drawn on the issue of delay in dismissing appeals on his behalf in 2004.

                 In the case of Gurmeet Singh v. State of Uttar Pradesh the Supreme Court similarly refused to take into account a delay of a number of years, caused in this case by the negligence of staff of the High Court of Allahabad. In March 1996 Gurmeet Singh had sought special leave from the High Court to appeal to the Supreme Court after the High Court had confirmed his death sentence. Despite several reminders sent by the jail authorities, there was no response from the High Court. Finally, after a petition had been filed in the Supreme Court, an inquiry was ordered which found that officials of the High Court had been negligent in failing to respond, and action was initiated against the officers responsible. Nonetheless, the Supreme Court refused to commute the sentence on the ground of delay, relying on the position that only delays in mercy petitions would be material for consideration. Gurmeet Singh is currently on death row in Uttar Pradesh.

                  A reading of the 1988 judgment shows that the rationale for the Court's position was to avoid a rush through the judicial process which might jeopardise procedural safeguards and lead to challenges based on the fairness of the trial. The intention was clearly not to exclude cases like those of Dhananjoy Chatterjee and Gurmeet Singh, where the judicial process was stalled for years through negligence on the part of executive or judicial officials. Yet when presented with appeals in these two cases, the Supreme Court refused to consider the issue of delay.

                      Mandatory pre-sentencing hearings and the statement of "special reasons" ;-In 1973, as noted above, a new Code of Criminal Procedure was adopted, requiring that a pre-sentencing hearing be held in the trial court in capital cases. In 1974 the Supreme Court referred to this requirement as an improvement over the "judicial hunch in imposing or avoiding capital sentence" and stated that "to personalise the punishment so that the reformatory component is as much operative as the deterrent element, it is essential that facts of a social and personal nature, sometimes altogether irrelevant if not injurious at the stage of fixing the guilt, may have to be brought to the notice of the Court when the actual sentence is determined" (Ediga Anamma v. State of Andhra Pradesh ). In 1976, the Court noted that the mandatory pre-sentencing hearing was 'in consonance with the modern trends in penology and sentencing procedures' and commented on what such hearings were meant to achieve:

                   A proper sentence is the amalgam of many factors such as the nature of the offence, the circumstances - extenuating or aggravating - of the offence, the prior criminal record, if any, of the offender, the age of the offender, the record of the offender as to employment, the background of the offender with reference to education, home, life, sobriety and social adjustment, the emotional and mental condition of the offender, the prospects for the rehabilitation of the offender, the possibility of return of the offender to a normal life in the community, the possibility of treatment or training of the offender, the possibility that the sentence may serve as a deterrent to crime by the offender or by others and the current community need, if any, for such deterrent in respect to the particular type of sentence. (Santa Singh v. State of Punjab).

                     By 1979, it was becoming clear that the system was not working as intended. Voicing its concern that the pre-sentencing hearing had become little more than a repeat of the facts of the case, the Supreme Court expressed the hope "that the Bar will assist the Bench in fully using the resources of the new provision to ensure socio-personal justice, instead of ritualising the submissions on sentencing by reference only to materials brought on record for proof or disproof of guilt" 

                   The extent to which only lip service was being paid to the importance of pre-sentencing hearings was evident in Muniappan v. State of Tamil Nadu , where the Supreme Court noted that the trial court had sentenced the accused to death stating that when the accused was asked to speak on the question of sentence, he did not say anything. The Supreme Court noted that the requirement laid down in the Code of Criminal Procedure was not discharged by merely putting a formal question to the accused.

Conclusion: 

"a confident nation has no place for state killing"

                   As the study and this summary have illustrated, the administration of the death penalty in India is manifestly flawed and fraught with error. This situation has gone on unaddressed in a meaningful manner since the country gained independence in 1947. As the world moves steadily away from the use of the death penalty, the time has come for the Indian authorities to abolish this outmoded form of punishment.

                   The the leaders of India may lack the political courage and human rights leadership necessary to abolish the death penalty. Public opinion often supports retention of the death penalty based on the erroneous view that it deters violent crime. It is therefore up to the nation's leadership to explain the futility of retaining executions on this basis and to convey the unacceptability of such a grave human rights violation committed in the name of the people via the country's judicial system.

                   The Indian State argues that the death penalty is required to instil fear as a means of deterring future criminals, and to safeguard society against rising crime and "terrorist" acts. In 1995 the Indian government told the UN Human Rights Committee that 'the death penalty has been retained in the Indian statutes, largely in view of its deterrent value.Yet evidence from around the world does not support the deterrence argument. The most recent comprehensive survey of research findings on the relation between the death penalty and homicide rates, conducted for the United Nations in 1988 and updated in 2002, concluded: "...it is not prudent to accept the hypothesis that capital punishment deters murder to a marginally greater extent than does the threat and application of the supposedly lesser punishment of life imprisonment."

                   In addition to the adoption of mandatory death sentences in the 1980s and the inclusion of the death penalty in successive anti-terrorist legislation since the 1990s, there have been discussions in the Government about including the death penalty for several other crimes in response to public outcries about rising crime and the ineffectiveness of the criminal justice system. The death penalty for dangerous driving was reported to be under consideration in 1997, as has the death penalty for rape since the 1990s and for the sale and manufacture of counterfeit medicines in 2003. It is to be welcomed that sense has so far prevailed in such debates about expanding the death penalty still further as a means of addressing these problems. Such proposals simply distract attention from measures that might properly address the serious problem of violent crime.

                    In refusing over the years to declare the death penalty unconstitutional, the Supreme Court has relied on the fact that those framing the Constitution did not see fit to abolish capital punishment, and that the legislature has subsequently not done so. In turn, the failure of the Supreme Court to strike down capital punishment has become the rationale for the Indian state to deny any need to re-examine the relevance of death penalty provisions in Indian law or to abolish the punishment. This cycle of inertia needs to be broken and the reality of the death penalty exposed as both unfair and ineffective, and speedily acted on.

                     The arguments for abolishing the death penalty remain forceful and persuasive. State killing condones violence and brutalises society. The ever present risk of the execution of the innocent is enhanced by an unsafe judicial system. Disadvantaged sections of society -- usually the poor and minorities -- are disproportionately at risk of execution. The death penalty asks public servants -- prosecutors, judges, prison guards, etc. -- to betray their humanity and be involved in the brutal act of taking the life of a prisoner rendered defenceless, and no longer a threat to society, via their incarceration. The trauma and loss suffered by the family of the victim (in murder cases) is inflicted in turn upon the family of the person being executed, thereby continuing the cycle of violence.

                         India has entered the 21st century on a note of optimism, as expressed by the country's then Deputy Prime Minister in 2004:"India has acquired a new confidence in what it could achieve and that the twenty-first century would be India's century." As the nation continues to meet its aspirations, it is vital that it examines its attachment to capital punishment. Judicial state killing has no place in the modern world and India should abolish the death penalty as soon as is practically possible.

What should be done?

                      In the immediate interim, the following steps should be taken:

                     Impose an immediate moratorium on executions pending abolition of the death penalty.

Ensure that the death penalty is not imposed or carried out on anyone suffering from a mental disability -- either permanent or temporary; remove anyone suffering from a mental disability from death row and provide them with appropriate medical treatment.

Ensure that cases of persons who may have been under 18 years old at the time of the crime and are presently on death row, are examined without further delay.

Abolish all provisions in legislation which provide for mandatory death sentences.

Initiate an urgent independent study into the extent to which national law and international standards for fair trial and other relevant international standards have been complied with in capital cases over the past two decades.

Provide compensation and redress to those found to have been victims of miscarriages of justice in capital cases.

Ensure openness, transparency and informed debate

End the secrecy surrounding application of the death penalty by making all information regarding the past use of the death penalty, and the total number of persons presently on death row with details of their cases, publicly available.

Initiate a parliamentary debate on abolition of the death penalty based on sound factual information.

Improve procedural safeguards

Provide a mandatory appeal to the Supreme Court in all cases where a death sentence has been imposed, including by any military court, as recommended by the Law Commission of India.

Implement the Law Commission's recommendation that a bench of five judges decides any capital case in the Supreme Court.

Require unanimity of judges for the imposition or upholding of a death sentence.

Disallow the imposition of or enhancement to a death sentence by an appellate court in any case where a lower court has directed an acquittal or awarded any other sentence.

End torture, ill-treatment and coerced confessions

Order a prompt and impartial investigation into the cases of prisoners on death row who were reported to have been tortured, ill-treated or denied access to legal counsel during police questioning.

Ensure that "confessions" obtained under duress are never invoked by state prosecutors in legal proceedings against criminal suspects.

Ensure that anyone who faces the death penalty has a right to competent state-appointed legal counsel of the defendant's choice during the entire legal process, including appeals and mercy petitions

Ratify the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment and its Optional Protocol.