Cross-examination in criminal cases

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.

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).

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.

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.

Whilst conducting cross-examination:

• Leading questions are permitted and 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 the various codes of conduct.

One of the aims of cross-examination is to cast doubt on, and undermine the evidence given by the witness. 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 they testify;
• Disinterest;
• Integrity;
• Veracity (i.e. truthfulness), and;
• Duty to speak the truth by virtue of the oath.

There are limits on the extent to which counsel are entitled to cross-examine a witness, and the manner in which they can cross-examine.

A complainant in sex offences cases must not be cross-examined by the accused in person. In addition, counsel are restricted as to the types of questions that are permitted.

There is also 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 questions relates to specified instances of sexual behaviour that is relevant to an issue in the case, and where refusal of leave may lead to a miscarriage of justice.

Counsel are not permitted to cross-examine in person child witnesses in certain sexual offence cases, and cases of kidnapping, false imprisonment and abduction. A child is a minor when aged 17 years and under for the purposes of sexual offences cases, and 14 years and under in other cases.

Judges have criticised counsel on various aspects of cross examination, including:

• 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.

If cross-examination results in matters that did not arise in the course the examination-in-chief, the party that originally called the witness can question the witness again. This is re-examination.