Cross-Examination in cyber crime matters

Cross-Examination in cyber crime matters

Cross-examination almost always ventures into dangerous territory. The reason for this is that the witness is usually adverse or hostile to your client’s position.

Therefore, the cyber lawyer must control the witness and, more particularly, the witness’ testimony. This can be accomplished by following certain guidelines during the cross-examination.

1. Do not ask a question unless you are reasonably certain that you already know the answer. (Some would say do not ask the question unless you are certain you know the answer). Cross-examination is not the time to discover new facts. It is not the time to be curious. Remember, curiosity killed the cat. It may likewise kill your case.

2. Treat the witness fairly. You should not be hostile, especially if you want to gain concessions from the witness, including that he/she may have been mistaken in his/her testimony on direct examination.

3. Use leading questions. A leading question suggests the answer, which is usually “yes” or “no.”

For eg : Is it true that the computer had Anti-virus installed in it?

Was it licensed ?

4. Never ask open-ended questions—questions that ask “how” or “why” or that require the witness to explain. These types of questions can lead to disaster. Never allow a witness to explain anything on cross-examination.

5. Listen to the answers. Do not mechanically ask one question after another without listening to the witness’ answers. The answers may contain the favorable testimony that you are seeking to obtain in the crossexamination. When this happens, you have accomplished your task and you should consider ending your cross-examination. On the other hand, if you do not listen to the answers you may not hear damaging testimony that should be addressed.

6. Do not allow the witness to repeat (and therefore reinforce in the mind of the judge) the testimony given on direct examination. There is no reason to ask a question that allows the witness to repeat his testimony. The odds are very small that the witness will testify differently on cross examination. You know the testimony given on direct examination, the witness knows the testimony, the judge knows the testimony. So just dive into your cross-examination.

7. Keep your questions “short and sweet” and in plain English. Your goal is to obtain one fact with each question. Ideally, each question should be posed as a declaratory statement of a single fact calling for affirmation by the witness. This will make the cross-examination much more manageable for you, prevent objections from your adversary (for example,that you are asking compound questions), and allow the judge to more easily follow and understand your cross-examination.

8. Ask the important questions at the beginning and end of your cross-examination. People, including jurors, remember best what they hear first and last. Conclude your cross-examination on a high note—your strongest point.

9. Your cross-examination should be brief. Remember, you are trying to “score points” to be used in your closing argument. In a lengthy crossexamination, your strongest points will be lost and the less significant points will be forgotten by the judge.

10. Control the witness’ answers. The best way to control the witness’ answers is to ask simple and clear questions. By doing so, you will not give the witness an opportunity to provide harmful testimony. If your question calls for a “yes” or “no” answer and the witness provides additional testimony that is harmful to your case, you should ask the court to strike the testimony as being nonresponsive to your question. Although you cannot “unring a bell,” the judge eventually will understand that the5 witness’ conduct is improper. If the witness answers a question other than the one you asked, ask it again, and yet again if necessary.

11. Do not ask one question too many. Remember the purpose of crossexamination—you are trying to obtain favorable testimony so it can be used in your closing argument. You need not ask the ultimate question that will drive your point home

STAGES OF CYBER CRIME TRIAL in COURT

STAGES OF CYBER CRIME TRIAL in COURT

1. Registration of FIR under The IT Act,2000 or IPC

2. Commencement of investigation and collection of evidence and Electronic/Digital evidence by investigating

agency. During this time, at any stage decided by investigating agency, accused

persons can be arrested

3. Production of accused before Magistrate (within 24 hours)

Remanded to police custody for further investigation; or

Remanded to judicial custody.

Note:- Remand does not mean that the police can misbehave or beat the

person. Remand means interrogation by the police.

4. Bail hearing before appropriate court – Arguments of the defence is denied by the

public prosecutor.

5. After investigation is completed:

If investigating agency feels a prima facie case is made out, chargesheet is

filed in Court through the public prosecutor.

If police feels that no prima facie case is made out, a final report filed in

Court. Which could be C-Final which effectively closes the case without trial.

6. Decision is taken by the Court after hearing the public prosecutor and the counsel for defence:

On question of Chargesheet:-

Court can reject chargesheet, in which case the accused is discharged.

Court can accept that a prima facie case is made out, frame the charges, and

post the case for trial. Case goes to next stage 

(7).On Final Report

Court can accept the final report- case is closed and accused is discharged

Court can reject the final report, and

Direct the police to further investigate the case. Case goes back to Stage (2)

Direct the case to be posted for trial. Case goes to next stage (7).

7. Framing of Charge by Court

Accused pleads guilty to the Charge. Depending on the seriousness of the crime,

the Court may either convict on the basis of plea or post the case for trial.

Accused pleads not guilty. Case is posted for trial.

8. Trial commences – examination of witnesses and other evidence

Examination of prosecution witnesses by public prosecutor, marking of exhibits,

and cross-examination by defence counsel.

9. Statement of Accused under section 313, CrPC.

10. Defence Evidence: if defence wants to, it examines defence witnesses, who are

cross examined by the public prosecutor, and exhibits defence evidence.

11. Final Arguments – Public Prosecutor (Government Lawyer) and the defence counsel present their

arguments.

12. Judgment and sentence by the Court:

Acquittal of accused, or

Conviction, in which case

• Arguments of public prosecutor and defence counsel on sentence.

• Judgment of Court passing sentence.

13. Appeal (within specified period of limitation) - Can be filed by party aggrieved by judgment on acquittal/ conviction/ reduction of sentence.

14. On notice being issued to the opposite parties, arguments are placed before Appeal

court of defence counsel and the public prosecutor.

15. Judgment of Appeal in higher Court.

How Cyber Parents should Behave with there Real Children?

How Cyber Parents should Behave with there Real Children?

Why children today are so bored , cannot concentrate on studies, cannot wait, get easily frustrated and have no REAL friends

Children are getting worse in  many aspects.  

We  have seen and continue to see a decline in children’s social, emotional, academic functioning, as well as a sharp increase in learning disabilities, depression and aggression.

Today’s children come to school emotionally unavailable for learning and many factors in our modern lifestyle contribute to this.

1. *Technology*

“Free babysitting service" 

Compared to virtual reality, everyday life is boring. When kids come to the classroom, they are exposed to human voices and inadequate visual stimulation as opposed to being bombarded with graphic explosions and special effects that they are used to seeing on the screens. After hours of virtual reality, they are  unable to process lower levels of stimulation. Technology also hinders parents' emotional availability.

Limit the use of technology. 

Have fun times together. Go for a picnic, trekking, a walk in the garden....

2.  *Instant Gratification*.

Kids get everything they want the moment they want.

“I am Hungry!!” 

Here is the ready snack (packets of junk)

“I am Thirsty!” 

Here is the drink (bottle of soft drink). “I am bored!” 

Use my phone. Watch TV.

The ability to delay gratification is one of the key factors for future success. We have all the best  intentions in mind to make our children happy, but unfortunately, we make them happy at that moment but miserable in the long term.  

To be able to delay gratification means to be able to function under stress. 

Our children are gradually becoming less equipped to deal with even minor stressors and "frustrations " which eventually become huge obstacles to their success in life.

Teach the kids to delay gratification. Do not give in to demands INSTANTLY unless it is urgent

3. *Kids' rule*

“My son doesn’t like vegetables” 

" He doesn’t like going to bed early” “He doesn’t like to eat breakfast” 

“He doesn’t like toys, but she is very good at his IPAD” .....

Children dictate parents.

If we leave it to them, all they are going to do is eat pasta, noodles, pizza and chips,  watch TV, play on their tablets/smartphones and never go to bed. 

We are giving them what they WANT even when we know that it is not GOOD for them.

Without proper nutrition and a good night’s sleep, our kids go to school irritable, anxious, and inattentive.  

In order to achieve our goals,  we have to do what NEEDS to be done.

If a child wants to be an 'A' student, he *needs* to study hard. 

If he wants to be a successful soccer player, he needs to practice every day. Our children know very well what they WANT  but not what is NEEDED to achieve that goal. This results in unattainable goals that leaves the kids disappointed.

Teach the difference between WANT & NEED

4. *ONLY Fun*

We have  created a fun world for our children. 

Endless Activites!! There are no dull moments. The moment it becomes quiet, we run to entertain them again because otherwise we feel that we are not doing our parenting duty.  

Why aren’t children helping us in the kitchen or with laundry? Why don’t they tidy up their cupboards? This is basic monotonous work that trains the brain to work and function under “boredom”.

Teach them to do "boring" chores like folding the laundry, setting the table, tidying up after meals, packing and unpacking their own bags....

Let them have unstructured time. 

Set limits. 

Make schedules for meals, sleep, study,  outdoor play, technology usage.....

5. *Limited social interaction*

Kids used to play outside, where in the  unstructured, natural environment, they learned and practiced their social skills.  

Competition (tuition/coaching), Structured Activites (painting, music, karate, zumba, etc) and  Technology replaced the outdoor time.  

Successful people have great social skills. 

Social skills have to be learned and practiced just like other skills.

Teach them social skills, (manners, cooperation, team work, ...)

We are *responsible* for creating the next generation of healthy, happy and successful people.