Cross-examination in criminal cases

When does cross-examination take place?

When a witness or defendant has been called to testify in court they will give their evidence ‘in chief’. The opposing side then has the right to cross-examine them on their evidence.

Cross-examination takes place after examination-in-chief, or when a witness is ‘tendered’ for cross-examination. This happens when the party calling the witness does not wish to ask that witness any question themselves, but calls the witness so that he/she can be sworn in and cross-examined by the other party if it wishes. This will be an issue for discussion between counsel before the trial starts.

Who can cross-examine?

A witness can be cross-examined by the ‘other side’, ie. the opponent of the party calling the witness, and any other party to the proceedings, eg. any co-defendants. You cannot cross-examine your own witness unless he/she has been declared hostile by the judge. Cross-examination can be conducted by counsel, or the opposing party if they are not legally represented.

There are three exceptions to the right to cross examine under the Youth Justice and Criminal Evidence Act 1999:

  • Complainants in proceedings for sexual offences (section 34);
  • Child complainants and other child witnesses (section 35);
  • Any other witnesses at the discretion of the court (section 36).

Who may be cross-examined?

All witnesses can be cross-examined except:

  • A witness called by a 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.

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 given 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.

What’s the purpose of cross-examination?

The purpose of cross-examination is three-fold:

  • To elicit evidence in support of your case;
  • To cast doubt on, or undermine the witness’s evidence and credibility to weaken your opponent’s case;
  • To challenge disputed evidence.

Types of questioning in cross-examination

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For more information on:

  • Cross-examination on credibility
  • The limits on cross-examination of complainants in sex cases
  • Limits on cross-examination in the case of children
  • Common pitfalls in cross-examination technique and style