Cross examination.

Cross-Examination

How the evidence of a witness is tested at trial

What is cross-examination?

During their evidence-in-chief, a witness is given the opportunity to give their version of events on behalf of the party who called them.

Cross-examination is the opportunity for the other side to put its version of events to the witness (known as ‘putting the case’) and to raise any other relevant matters which are capable of undermining their evidence.

The purpose of cross-examination is to test the evidence of a witness, to expose weaknesses where they exist and, if so, to undermine the account the witness has given.

This includes testing the reliability of their evidence and/or their credibility as a witness.

Putting your case

After a witness has given their account during their evidence-in-chief, they will then be cross-examined by the opposite party, so a prosecution witness will be examined-in-chief by the prosecutor, then cross-examined by the defence.

The first aim of cross-examination of a witness is to test that witness's evidence by putting your case (your version of events) to him/her.

For example, if a prosecution witness has given evidence-in-chief that the defendant punched him in the face, but the defence case is that someone else was responsible, the defence advocate will put the defendant’s version to the witness in cross-examination.

This gives the prosecution witness the opportunity to respond to the defence case and either agree or disagree with it. It also means that, by the end of the cross-examination, it should be clear from these questions what the defence case is.

Failure by an advocate to put the case on a point in dispute will mean that the advocate tacitly accepts what that witness said on that point during their evidence-in-chief.

It will also prevent the advocate from being able to deal with this point in their closing speech, i.e. you can’t suggest in a speech that a witness is mistaken or lying about something, or is responsible for something, that you haven’t even asked them about, exploring why they might be mistaken, putting to them clearly that they are not telling the truth, or being clear about what it is suggested they have done. Failing to put your case on such a point will prevent the witness from being able to respond, prevent the prosecution from being able to respond and prevent the magistrates or the jury from being able to assess the response.

For these reasons, putting the case clearly to a witness is crucial.

“Now that is a considerable accusation to make, and one which if it was to be made, should have been put to Detective Chief Inspector Richardson, the senior investigating officer when he was in the witness box, so that he could deal with it. He has had no opportunity of dealing with what is a very grave allegation… Counsel simply cannot wait until his closing speech to make such an allegation because the Crown have no way of answering it or dealing with it.”

— Extract from the judge's summing-up referred to by the Court of Appeal in R v Farooqi [2013] EWCA Crim 1649

Testing the reliability and credibility of a witness

A witness’s account of what took place may be flawed for a number of reasons. The witness may have made an honest mistake, their account may be confused (such as with a fast-moving event), they may have been influenced by speaking to someone else, they may have subconsciously filled in the gaps of what they actually witnessed, or they may have a motive for lying or otherwise deliberately misleading the court. On the other hand, they may be an honest witness giving a genuine and accurate account of what took place.

If there are weaknesses in the account given by a witness, the cross-examination will seek to expose them. Testing the reliability of the evidence given, or the credibility of the witness can include, for example:

If a witness has given a different version of events previously to the version given at trial, their previous inconsistent statement can be put to them.
If an eyewitness has given evidence that they saw a defendant commit the offence, and the defendant denies being present at the scene, they can be asked about distance, lighting conditions, obstacles, length of observation etc. which may demonstrate a real possibility of mistake, or that the witness is not telling the truth.
If the defendant’s case is that the witness is lying for a particular reason, such as due to a grudge, this can be put to the witness to gauge their response and allow the magistrates/jury to assess whether they believe the witness or not.
If a witness has previous convictions, these can reflect on their credibility and the quality of their evidence, e.g. previous convictions for assault may demonstrate an aggressive nature; previous convictions for dishonesty such as theft and fraud may reveal a dishonest nature; convictions for perjury or perverting the course of justice are likely to reveal a willingness to lie on oath.

NB Using previous convictions of a defendant or a witness must be relevant to the case being tried and require a ‘bad character’ application to be made to the judge or magistrates.
For more information go to Bad Character >>

When does cross-examination take place?

The cross-examination of a witness takes place at trial after their examination-in-chief.

In trials involving only one defendant, the order is as follows:

After a prosecution witness has given evidence-in-chief, the defence advocate will cross-examine the witness.
After a defendant or a defence witness has given evidence-in-chief, the prosecution will cross-examine the witness.

In trials involving two or more defendants, the order is as follows:

After a prosecution witness has given evidence-in-chief, the advocate for the first defendant will cross-examine, followed by the advocate for the second defendant, then the third etc.
After a defendant or defence witness has given evidence-in-chief, the representatives for the remaining defendants can (if they choose to do so) individually cross-examine the defendant or defence witness. When finished, the prosecution representative will cross-examine.

Cross-examination of one defendant by a co-defendant’s advocate will usually only take place where there is a dispute between them, for example where there is a ‘cut-throat’ defence (i.e. defendants blaming each other for the crime).

In a limited number of Crown Court pilot areas, pre-recorded cross-examination and re-examination can be used as a ‘special measure’ for witnesses. When combined with pre-recorded evidence-in-chief this will prevent the need for a witness to attend trial.

For more information on special measures, go to Witness Protection & Support >>

Conducting a cross-examination

Unlike examination-in-chief where you cannot ask leading questions (i.e. that suggest the answer), cross-examination often consists of leading questions, which often sound more like statements than questions, e.g.

“You disliked the defendant because he started a relationship with your ex-girlfriend?”
“You told him if he didn’t stop seeing her you were going to ‘sort him out’?”
“He didn’t stop seeing her did he?”
“That’s why you approached him outside the pub isn’t it?”
“You told him that he should have done what he was told?”
“And then you attacked him didn’t you?”
“You threw a punch that struck him on the left side of his face?”
“You carried on throwing punches at him?”
“But he was moving around by this stage to avoid your punches wasn’t he?”
“He then threw a punch at you didn’t he?”
“It hit you in the jaw didn’t it?”
“And you went straight down to the ground?”

Here the defence is putting forward a defence of self-defence. The witness would, of course, be given the opportunity to answer each question. This is just a summary of questions, but it reveals how the case is being put clearly, both the motive and the actual incident. It also shows why the magistrates/jury should be able to fully understand the case being put by the end of the cross-examination.

Contrary to what appears in many films, witnesses rarely ‘confess’ the truth in cross-examination or accept the contrary version of events being put to them, even though a well crafted cross-examination may expose real issues with the account they have given or force them to accept some part of the version being put to them.

Just because a witness denies something that has been put to them does not mean the cross-examination has to stop until they accept it. This would result in a ‘yes you did/no I didn’t’ situation. Even if a witness denies what is being put, the cross-examining party is still under an obligation to continue until they have put their case.

It is no part of the cross-examination process to seek to bully or harass a witness and a judge would stop an advocate who did this. Questions should be relevant and appropriate. Shouting at a witness is not effective advocacy; it is far more likely to lose an advocate any sympathy for their client than gain it.

The most effective cross-examinations are controlled, methodical and unemotional; they are based on a careful analysis of the case and, where there are weaknesses in the evidence of a witness, these will often be exposed.

“‘The art of cross-examination’, my father told me, ‘is not the art of examining crossly. It’s the art of leading the witness through a line of propositions he agrees to until he’s forced to agree to the one fatal question.’”

— Clinging to the Wreckage, John Mortimer (Penguin Modern Classics)

Vulnerable witnesses and defendants

The usual rules on cross-examination do not apply to witnesses and defendants who are considered to be vulnerable, such as children and people with a mental disorder, learning disability, or a physical disorder or disability.

In these circumstances the case is put using techniques which are designed to maintain the integrity of the court process, recognising that vulnerable people may be less able to respond to the traditional approach of questioning witnesses, particularly in cross-examination.

“All witnesses, including the defendant and defence witnesses, should be enabled to give the best evidence they can. In relation to young and/or vulnerable people, this may mean departing radically from traditional cross-examination. ”

— Criminal Practice Direction 1: General Matters, para 3E.4

To read more about vulnerable witnesses and defendants go to Witness Protection & Support >>

Restrictions on cross-examination

A number of restrictions are placed on advocates about what they are entitled to put to a witness in cross-examination.

Some of these are legal restrictions which apply in criminal trials for certain offences; others are regulatory restrictions that apply to barristers or solicitors conducting trials.

1. Legal restrictions on cross-examination

In cases involving allegations of a sexual nature, complainants cannot be asked questions about their sexual history except with the leave (permission) of the court. This restriction is contained in s.41 Youth Justice and Criminal Evidence Act 1999 and has been the subject of many cases defining the limited exceptions to this rule.
There is also a prohibition on defendants who are representing themselves at trial from conducting the cross-examination in certain cases. (See more below in If I am representing myself can I cross-examine a witness?)

Further information on section 41

The legislation is contained in s.41 Youth Justice and Criminal Evidence Act 1999.

The procedure to apply to introduce evidence or cross-examine a witness about any sexual behaviour of a complainant is contained in Part 22 Criminal Procedure Rules.

Crown Prosecution Service (CPS) Guidance on s.41.

Ministry of Justice and Attorney General’s Office Report on limiting the use of complainants’ sexual history in sexual offence cases.

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2. Regulatory restrictions on cross-examination

Barristers and solicitors must comply with the regulations imposed by their respective independent regulators, the Bar Standards Board (BSB) for Barristers and the Solicitors Regulation Authority (SRA) for Solicitors.

Barristers

The BSB Handbook contains the Code of Conduct for Barristers. This contains the key duties of barristers when questioning witnesses:

“rC7

Where you are acting as an advocate, your duty not to abuse your role includes the following obligations:

.1 you must not make statements or ask questions merely to insult, humiliate or annoy a witness or any other person;

.2 you must not make a serious allegation against a witness whom you have had an opportunity to cross-examine unless you have given that witness a chance to answer the allegation in cross-examination;

.3 you must not make a serious allegation against any person, or suggest that a person is guilty of a crime with which your client is charged unless:

.a you have reasonable grounds for the allegation; and

.b the allegation is relevant to your client’s case or the credibility of a witness; and

.c where the allegation relates to a third party, you avoid naming them in open court unless this is reasonably necessary.

.4 you must not put forward to the court a personal opinion of the facts or the law unless you are invited or required to do so by the court or by law.”

— Rule rC7 - BSB Handbook (Part 2 Code of Conduct)

Solicitors

Solicitors must comply with the SRA Code of Conduct for Solicitors and the Statement of standards for solicitor higher court advocates.

The key duties of solicitors when questioning witnesses include the following:

“- Has a clear strategy for the case supported by questions asked and evidence called
- Observes restrictions and judicial rulings on questioning
- Questioning strategy is clear and asks questions only relevant to issues
- Demonstrates appropriate techniques for witness handling skills
- Uses and challenges expert evidence effectively
- Questions to witnesses are clear and understandable
- Deals appropriately with vulnerable witnesses
- Deals effectively with uncooperative witnesses
- Avoids introducing irrelevant matters in cross-examination
- Ensures that copies of any law to be argued are prepared for the benefit of the judge and opposing advocate
- Locates materials and evidence quickly
- Develops arguments in a logical order
- Makes appropriate objections and/or submissions
- Responds appropriately to interventions by the court”

— From Statement of standards for solicitor higher courts advocates – performance indicator Part 3 - Advocacy

If I am representing myself can I cross-examine a witness?

If you are conducting your case yourself at a criminal trial without an advocate, i.e. a barrister or solicitor (in which case you are known as a litigant in person or a defendant in person) there are restrictions on who you can cross-examine yourself.

Where these restrictions apply you need a qualified advocate to conduct the cross-examination on your behalf.

Defendants in person are prohibited from cross-examining:

Adult complainants in cases involving sexual offences;
Child complainants and child witnesses in: sexual offences; offences involving assault, injury/threat of injury; offences of child cruelty, kidnapping, false imprisonment, abduction.

The court has also has an inherent power to prevent a defendant acting in person from cross-examining any witness.

When these prohibitions apply, defendants who represent themselves at court must find a legal representative to conduct the cross-examination on their behalf. Alternatively, the court will appoint a legal representative to do the cross-examination for them where it considers it is in the interests of justice to do so.

Further Information for Defendants in Person

There is a helpful section on defendants in person in Chapter 3-5 of the Crown Court Compendium Part 1.

Restrictions on direct cross-examination by defendants in person (i.e. representing themselves) are governed by:

Go to notices and application forms concerning cross-examination prohibition - scroll down to Part 23 Restrictions on cross-examination by a defendant.