Cross examination

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 “tendered for cross-examination.” 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:

  • Section 34 YJCEA 1999-Complaints in proceedings for sexual offences;

  • Section 35 YJCEA 1999-Child complainants and other child witnesses;

  • Section 36 YJCEA 1999-Any other witnesses at the discretion of the court

Who may be cross-examined?

All witnesses can be cross-examined except:

  • A witness required by witness summons merely to produce a document;

  • A witness called and sworn by mistake because it is discovered before he/she begins examination-in-chief, or where the questioning has barely begun, that they are unable to give evidence on the matter in question;

  • A witness called by the judge (very unusual).

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 judge’s 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 witness’s evidence so as to weaken your opponent’s case, and to undermine the witness’s credibility;

  3. To put your case and challenge disputed evidence

Types of questioning in cross-examination

  • Leading questions are permitted/to be encouraged;

  • Counsel has a duty not to waste the court’s time and money on irrelevant matters;

  • The judge has the discretion to prevent cross-examination, which is unnecessary, improper or oppressive;

  • You must also be aware of the relevant provisions in Code of Conduct

Cross-examination on credibility

One of the aims of cross-examination is to cast doubt on, and undermine the witness’s 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 witness’s:

  • Knowledge of the facts to which he/she testifies;

  • Disinterest;

  • Integrity;

  • Veracity (i.e. truthfulness), and

  • Duty to speak the truth by virtue of the oath.

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:

  • Making comments rather than asking questions;

  • Not asking a proper question but rather making a statement;

  • Not giving the witness a proper opportunity to answer the question;

  • Asking questions that are irrelevant;

  • Not putting their client’s case clearly.