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Court Proceedings

Background

Summary Trial Procedure

Turnbull Guidelines

Voluntary Bills of Indictment

Indictments

Canon Law in Criminal System

Statement of Case

Judge Only Trials

Court Case

Bail

Courts Power

Court Powers to Seize Assets

Seizure of Criminal Assets

Proceeds of Crimes

Evidence in Court

Evidence

Expert Evidence

Hearsay Evidence in Criminal Cases

DNA Use in Criminal Cases

Computer Evidence

Evidence of Bad Character as Admissible Evidence

Identification Evidence and Procedure

Corroboration

Illegally Obtained Evidence

Proving Intention to Commit a Crime

Prosecution Duty if Disclosure

Defence

Automation as a Criminal Defence

Defence Case Statements

Defence of Duress

Insanity as a Criminal Defence

Diminished Responsibility in Criminal Law

Provocation and Criminal Law

Provocation as a Criminal Defence

Infanticide and Criminal Law

Plea Bargaining

No Case to Answer

Witnesses

Appearing as a Witness

Subpoenaing a Witness

Being a Witness in a Criminal Trial

Child Witness

Expert Witnesses

Pre-trial Witness Interviews

Witness at Criminal Trials

Witness Summons

Collateral Finality Rule

Cross Examination

Right to a Fair Trial

Remand In Custody While Awaiting Trial

Right to Remain Silent in Criminal Proceedings

British Age of Criminal Responsibility

Protection for Suspects

Young Offenders

Victims of Crime Rights

Anonymity in Rape Cases

Personal Self Defence

 

When does cross-examination happen?

The board principle is that where a witness has been called by a party and taken the oath/affirmation, then whether or not examination-in-chief occurs, the other party or parties have the right to cross-examine.

This will occur immediately after examination-in-chief, it can occur when a witness is ďtendered for cross-examination.Ē This arises when the party calling a witness does not wish to ask that witness any question themselves, but nevertheless calls the witness so that he/she can be sworn and then cross-examined if the other party chooses. This is a matter that is discussed between counsel before the trial starts.

Who can cross-examine?

A witness can be cross-examined by the opponent of the party calling the witness and any other party to the proceedings, e.g. co-defendants. You cannot cross-examine your own witness unless he/she has been declared hostile by the judge. Cross-examination can be by counsel or the party in person, subject to three wide ranging exceptions in the Youth Justice and Criminal Evidence Act 1999.

The effect of these important provisions can be summarised as follows:

Who may be cross-examined?

All witnesses can be cross-examined except:

If a witness becomes ill before or during cross-examination, the trial may be allowed to continue on the basis of the evidence already given. The judge should direct the jury carefully in these circumstances. Similarly, the trial may be allowed to continue if the witness becomes too distressed to go on. If the witness dies before cross-examination, the evidence-in-chief is admissible although little weight may attach to it. However, all these situations are subject to the judgeís discretion to discharge the jury if the inability of the witness to complete their evidence would result in overall unfairness to the defendant.

Purpose of cross-examination

The purpose of cross-examination is three-fold:

  1. To elicit evidence in support of your case;

  2. To cast doubt on, or undermine the witnessís evidence so as to weaken your opponentís case, and to undermine the witnessís credibility;

  3. To put your case and challenge disputed evidence

Types of questioning in cross-examination

Cross-examination on credibility

One of the aims of cross-examination is to cast doubt on, and undermine the witnessís evidence. Questions can therefore be put in cross-examination with a view to attacking the credibility of the witness. The credibility of a witness depends upon the witnessís:

When cross-examining as to credit there are certain limits placed on the extent to which you are entitled to cross-examine and the manner in which you are entitled to cross-examine.

The general rule is that answers relating to collateral matters (i.e. matters going only to credit and which are otherwise irrelevant to the issues in the case) are final. This is known as the rule of finality of answers to questions on collateral matters.

This rule does not mean that you cannot ask the question; merely that you cannot challenge/contradict the answer the witness gives by calling further evidence. Further, this does not mean that the tribunal of fact must accept the answers.

The limits on cross-examination of complainants in sex cases

There was a wholesale review of the law in this area by virtue of s.41 Youth Justice and Criminal Evidence Act 1999. Not only may a complainant in such cases not be cross-examined by the accused in person, counsel has restrictions placed upon the type of questions that he/she is permitted to ask. There is a general prohibition on evidence adduced or questions asked on behalf of the accused about any sexual behaviour of the complainant without leave of the court. The court may give leave if it is satisfied that the evidence or question relates to specified instances of sexual behaviour, relevant to an issue in the case and where refusal of leave may lead to a miscarriage of justice.

Common pitfalls in cross-examination technique/style

Here are some of the main criticisms that judges have of counsel in relation to cross-examination:

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