Cross-examination Flashcards
Purposes of crossexamination
There are two purposes of cross-examination:
* to elicit information supporting the case of the party conducting the crossexamination
* to challenge the accuracy of the testimony given in evidence-in-chief (for example, by casting doubt on the witness’s veracity or by eliciting
contradictory testimony).
All parties, other than the one calling the witness, have the right to crossexamine. Thus, in trials involving multiple defendants, each defendant has the right to cross-examine the witnesses of both the prosecution and the codefendant.
Cross-examination is subject to various statutory controls in the Evidence Act 2006:
- cross-examination duties – s92
- limits on cross-examination by parties in person – s95, and
- the prohibition on unacceptable questions – s85.
In addition, leading questions asked in cross-examination of a witness who has the same, or substantially the same, interest in the proceeding as the cross-examining party may be limited by the judge in the interests of justice to prevent, for example, a “sham” interrogation where there are a number of co-defendants running a co-ordinated defence (s93).
The duty to put the case
Whenever a party is intending to call evidence that will contradict the evidence in chief of a witness called by an opposing party, there is an obligation to put that contradictory material to the witness during cross-examination, so that he or she has an opportunity to comment on or explain it. Unless this is done, little or no weight may be attached to the contradictory material, or the opposing party may
be granted leave to recall their witness for the purposes of rebuttal. This has been codified in s92 of the Evidence Act 2006:
92 Cross-examination duties
(1) In any proceeding, a party must cross-examine a witness on significant matters that are relevant and in issue and that contradict the evidence of the witness, if the witness could reasonably be expected to be in a position to give admissible evidence on those
matters.
(2) If a party fails to comply with this section, the Judge may—
(a) grant permission for the witness to be recalled and questioned about the contradictory evidence; or
(b) admit the contradictory evidence on the basis that the weight to be given to it may be affected by the fact that the witness, who may have been able to explain the contradiction, was not questioned about the evidence; or
(c) exclude the contradictory evidence; or
(d) make any other order that the Judge considers just.
The duty to cross-examine will therefore arise under the Act when:
* the cross-examination deals with “significant matters” in the proceeding, and
* the matters are “relevant” and “in issue” in the proceeding, and
* the matters “contradict the evidence of the witness”, and
* The witness may “reasonably be expected to be in a position to give
admissible evidence on those matters”.
Unacceptable questions
85 Unacceptable questions
(1) In any proceeding, the Judge may disallow, or direct that a witness is not obliged to answer, any question that the Judge considers improper, unfair, misleading, needlessly repetitive, or expressed in language that is too complicated for the witness to understand.
(2) Without limiting the matters that the Judge may take into account for the purposes of subsection (1), the Judge may have regard to—
(a) the age or maturity of the witness; and
(b) any physical, intellectual, psychological, or psychiatric impairment of the witness; and
(c) the linguistic or cultural background or religious beliefs of the witness; and
(d) the nature of the proceeding; and
(e) in the case of a hypothetical question, whether the hypothesis has been or will be proved by other evidence in the proceeding.
Section 85 gives the trial judge a wide discretion to control the nature of questions and the manner in which they are put. The discretion permits a judge to disallow an unacceptable question, or to direct that a witness is “not obliged to answer” the question posed.
Section 85 applies to all questioning of witnesses at all phases of a witness’s examination in court. However, s85 will most typically be invoked to control cross-examination.
Crossexamination as to prior inconsistent statements
Witnesses may be cross-examined as to prior inconsistent statements. Such statements may include:
- written witness statements
- oral statements (for example, recorded on police job sheets)
The method by which witnesses may be cross-examined in this respect, and the extent to which the documents themselves can be admitted into evidence, are now governed by s96 of the Evidence Act 2006, which provides:
96 Cross-examination on previous statements of witnesses
(1) A party who cross-examines a witness may question the witness about a previous statement made by that witness without showing it or disclosing its contents to the witness if the time, place, and other circumstances concerning the making of the statement are adequately identified to the witness.
(2) If a witness does not expressly admit making the statement and the party wishes to prove that the witness did make the statement,—
(a) the party must show the statement to the witness if it is in writing, or disclose its contents to the witness if the statement was not in writing; and
(b) the witness must be given an opportunity to deny making the statement or to explain any inconsistency between the statement and the witness’s testimony.
(3) If a document is used by a defendant for the purpose of cross-examining a witness but is not offered as evidence by that defendant, the following rights of the defendant are not affected:
(a) the defendant’s right to make a no-case application; and
(b) the defendant’s rights in relation to the order of addressing the court.
Section 96 not restricted to inconsistent statements
While it will mainly apply to cross-examination on a witness’s previous inconsistent statements, s96 is not restricted to inconsistent statements and covers any previous statement. The effect of the provisions in s96 can be summarised as:
- A witness may be cross-examined about a previous statement, whether in oral or documentary form (both consistent and inconsistent), without either being shown the statement or having its contents disclosed by the cross-examiner (although the questioner may do so if he or she wishes).
The cross-examiner must “adequately identify” to the witness “the time, place and other circumstances concerning the making of the statement”.
- If the witness does not admit to making the statement, the cross-examiner may wish to prove the statement, in which case s96(2)(a) and (b) will apply.
Re-examination
Limits on reexamination
After cross-examination by opposing counsel, the party who called the witness may re-examine that witness for the purposes of clarifying or qualifying any issue raised during cross-examination, but may not be questioned on any other matter, except with the permission of the judge.
If additional evidence is allowed by the judge, then the other parties must be allowed to cross-examine on the additional evidence, and the judge may also allow further re-examination on matters arising out of that cross-examination.
Evidence in rebuttal and recalling witnesses
Evidence in rebuttal
Evidence called by either party after the completion of their own case, in order to rebut something arising during the trial, can only be admitted with the leave of the court. Such leave may be given to the prosecution if the further evidence:
- relates to a purely formal matter
- relates to a matter arising out of the conduct of the defence, the relevance of which could not reasonably have been foreseen (the most common ground for leave to be granted)
- was not available or admissible before the prosecution’s case was closed, or
- is required to be admitted in the interests of justice for any other reason.
Permission may be granted to the defendant if the interests of justice require the further evidence to be admitted.
Evidence in rebuttal may be permissible up to the time when the jury retires (or in judge alone trials, at any time until judgment is delivered).
Recalling witnesses
In addition to evidence in rebuttal, a judge may recall a witness who has given evidence, where he or she considers that it is in the interests of justice to do so (s99).
Judicial directions and warnings
Judicial warnings
There are a number of circumstances in which a judge may direct the jury that evidence should be scrutinised with particular care, or should be given less weight.
These are contained in ss 122-127 of the Evidence Act 2006:
* judicial warning that evidence may be unreliable – s122
* judicial directions about certain ways of giving evidence – s123
* judicial warnings about lies – s124
* judicial directions about children’s evidence – s125
* judicial warnings about identification evidence – s126
* delayed complaints or failure to complain in sexual cases – s127.
Warning that evidence may be unreliable
122 Judicial directions about evidence which may be unreliable
(1) If, in a criminal proceeding tried with a jury, the Judge is of the opinion that any evidence given in that proceeding that is admissible may nevertheless be unreliable,
the Judge may warn the jury of the need for caution in deciding—
(a) whether to accept the evidence:
(b) the weight to be given to the evidence.
(2) In a criminal proceeding tried with a jury the Judge must consider whether to give a warning under subsection (1) whenever the following evidence is given:
(a) hearsay evidence:
(b) evidence of a statement by the defendant, if that evidence is the only evidence implicating the defendant:
(c) evidence given by a witness who may have a motive to give false evidence that is prejudicial to a defendant:
(d) evidence of a statement by the defendant to another person made while both the defendant and the other person were detained in prison, a police station, or another place of detention:
(e) evidence about the conduct of the defendant if that conduct is alleged to have occurred more than 10 years previously.
(3) In a criminal proceeding tried with a jury, a party may request the Judge to give a warning under subsection (1) but the Judge need not comply with that request—
(a) if the Judge is of the opinion that to do so might unnecessarily emphasise evidence; or
(b) if the Judge is of the opinion that there is any other good reason not to comply with the request.
(4) It is not necessary for a Judge to use a particular form of words in giving the warning.
(5) If there is no jury, the Judge must bear in mind the need for caution before convicting a defendant in reliance on evidence of a kind that may be unreliable.
(6) This section does not affect any other power of the Judge to warn or inform the jury
Section 122(1) provides that the judge may warn the jury about evidence that he or she thinks may be unreliable; s122(2) provides that the judge must consider doing so whenever certain classes of evidence are given. The scope of s122 is very broad.
A general warning under s122(1) may apply to evidence from all parties, that is, defendant, co-defendant or prosecution. However, the overall focus of the section is evidence relating to the defendant’s guilt (from either the prosecution or a codefendant) and protection of the defendant’s due process rights.
Where the judge is of the opinion that admissible evidence may be unreliable, s122(1) permits him or her to warn the jury of the need for caution in deciding both whether to accept the evidence and, if accepted, the weight that should be given to it. This is discretionary, not mandatory.
Section 122(2) requires the judge to consider giving a warning under s122(1) whenever certain types of evidence that inherently carry the risk of unreliability are given (s122(2)(a)-(e)).
Section 122(2)(a) reflects the concern that hearsay evidence may be unreliable because the maker of the statement has not promised to tell the truth, and there can be no testing of the evidence under cross-examination.
Section 122(2)(b), which applies to “confessions” that are the only evidence implicating the defendant, acknowledges the risk that a defendant may falsely “confess”. The admission of such a statement requires that the circumstances in which the statement was made “was not likely to have affected its reliability”.
Section 122(2)(b) envisages a statement that is reliable enough to be admitted, but which still requires a warning because of potential unreliability.
Section 122(2)(e) acknowledges that most memories will be affected by long delays; whether there is more risk of unreliability inherent in such evidence than in any other is, however, debateable. Certainly, a 10-year cut-off appears to be arbitrary.
If the judge does decide to give a warning, there is no requirement in s122 that it be given at a particular time, and there is no particular form of words required
Direction about how evidence may be given
Section 123 requires the judge in criminal proceedings to direct the jury that the law makes special provision for the giving of evidence in certain circumstances, and that no adverse inferences should be drawn against the defendant where a witness has offered evidence in an alternative way (s105), where a defendant has not been allowed to personally cross-examine a witness (s95), or where a witness offers evidence in accordance with a witness anonymity order (s112).
Warnings about lies
Section 124 provides for instruction to the jury about evidence suggesting that the defendant lied before or during a criminal proceeding. It is a matter for the jury to conclude whether the defendant actually did lie.
The inference to be drawn from the lie is a matter for the jury. A proven lie by a defendant about a material matter can be taken into account as circumstantial evidence of guilt (and/or as going to veracity).
No warning needs to be given unless the judge is of the opinion that the jury may place undue weight on the evidence of a defendant’s lie, or if the defendant requests that the warning is given, in which case a warning must be given. As many defendants will make a request, a warning is in fact likely to be given in most cases where there is evidence suggesting that a defendant lied.
When a warning must be given, it should include direction that:
- the jury needs to be satisfied that the defendant did lie before they use the evidence,
- people lie for various reasons, and
- the jury should not necessarily conclude that just because the defendant lied he or she is guilty of the offence charged.
Directions about evidence given by children
Section 125 provides that evidence given by children in any criminal case should, in general, be treated in the same way as evidence given by adults.
Thus it prohibits:
* the judge from giving warnings about the absence of corroboration where a warning would not have been given in the case of an adult complainant
* any direction or a comment (absent expert evidence to the contrary) that there is a need to scrutinise children’s evidence with special care, or that children generally have a tendency to invent or distort.
The general thrust of the section, therefore, is to prevent the differential treatment of child complainants and witnesses.
The general prohibition on judicial direction or comment is qualified where expert evidence supports the giving of a direction.
In addition, the general prohibition does not limit the judge warning or informing the jury about children’s evidence in accordance with regulations made under the Act. Such regulations will take priority over s125, even if any future regulations are inconsistent with the section.
Currently, there is special provision for child witnesses under 6 years of age in regulation 49 of the Evidence Regulations 2007. The regulation is intended to focus the judge or jury on the way the evidence was obtained from children at each stage of the
investigation and trial, rather than on any tendency of child witnesses to invent or distort.
