The Process Of Cross-Examination

, The Process Of Cross-Examination

The Process Of Cross-Examination

BACKGROUND

Cross-examination in a nutshell is the ability to question the witnesses from the other party. This is completed after the witness has done what is called ‘examination in chief’ which will be discussed below.

The paramount skill that and advocate can have is identifying inconsistencies with the witnesses’ statement and exposing those inconsistencies. This same principle can be applied in part of the prosecution where they are also able to challenge any evidence given by witnesses.

This procedure is a critical aspect to a criminal hearing and maybe considered complex in some circumstances. Its purpose is to produce doubt in the prosecution’s case and show the Court that the evidence of the witness is unreliable. This procedure, like many criminal procedures have specific rules which the advocate must adhere to. This is to ensure the protection of the accused, the victim and any other witness. We will now consider a variety of factors that apply in cross examination.

Children and Vulnerable Witnesses

Cross-examination is considered problematic for children. The problem with children testifying in the witness box can be exposed to complex, intimidating and often times, consist of repetitive questioning.

While it is important that a child’s evidence is examined properly, its also crucial that a balancing exercise is in place and that the procedure does not intimate the witness:

“into silence, lead to contradictions in their responses and produce emotional disorganisation and distress”

The Court has the power to intervene to prevent any improper or abusive questions to ensure that these particular witnesses are protected.

Adults are generally much less vulnerable than children during these cross examinations. Nonetheless, the same pattern for feelings of intimidation and humiliation can still occur during cross examination.

Relevance

The principal of relevance is one of the first key elements the Court will examine to determine the legitimacy of any question. Any question that is not considered relevant will be not allowed in cross-examination. If they choose to ask the question, the party requesting this will be asked by way of objection or by the Court as to where the question is heading. This is determined under Section 55 of the Evidence Act 1995 (NSW) which states:

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding

(2)In particular, evidence is not taken to be irrelevant only because it relates only to

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence

The Hearsay Rule

The rule against hearsay is one of the most fundamental rules of evidence. This rule applies to evidence of what is called representations made out of Court. Representations can be done either written in the form of a statement or given orally. Pursuant to section 59 of The Act

(1)  Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation

Cross-examination questions which seek to invite inadmissible hearsay evidence from any witness are not permissible. These questions from the hearsay evidence rule are generally considered inadmissible but like most rules, there are exceptions to that. It is not considered inadmissible to provide evidence of what someone has said, for the purpose other than to establish the truth of the statement.

Inadmissible Questions

One of the important roles for any advocate is to object to any questions that they consider inadmissible. If any party believes that a question may breach section 55 of The Act, the objection may allow the Court to either refuse the question or direct the witness not to answer the question. In any event, the Court may allow submissions by both parties to the Court to determine if such questions shall be allowed.

Pursuant to Section 41 of the Evidence Act 1995 (NSW)

(1) The Court must disallow a question put to a witness in cross-examination, or inform the witness that it need not be answered, if the Court is of the opinion that the question

(a) is misleading or confusing; or

(b) is unduly annoying, harassing, intimidating, offensive, oppressive, humiliating or repetitive; or

(c) is put to the witness in a manner or tone that is belittling, insulting or otherwise inappropriate; or

(d) has not basis other than a stereotype

CONCLUSION

These are only a small number of rules and principles outlined in the cross-examination scheme. This procedure requires detailed preparation and analysis for the best outcome in any criminal hearing. If you and anyone is currently undergoing proceedings, contact our office immediately! We are specialists who prepare your case thoroughly, negotiate with the police to have the charge dropped and proceed to a defendant hearing to ensure justice is done. National Criminal Lawyers® make submission to persuade the Court on the given day why your charge should be dismissed.

Our Lawyers will guide you from start to finish in your criminal matter.

Our Sydney Criminal Lawyers offer nothing short of excellent results in relation to these matters. With over 80% of defended hearings won and 94% no conviction record, our services are second to none. If you or someone you know has been charged with a criminal offence, pick up the phone and contact our office now.

 

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