Cross-examination in criminal cases occurs when the defendant or his attorney challenges the indictment and attempts to undermine the indictment by revealing weaknesses in the evidence provided by the prosecution witness. The prosecutor may also challenge oral evidence presented by the defense by cross-examining defense witnesses. Cross-examination of each witness takes place after the witness completes the main examination.
Cross-examination is intended to reveal flaws in the opponent’s evidence, reveal contradictions in witness testimony, and ascertain the facts that support the cross-examination party’s allegations. Common law, uniform evidence, and other laws limit what may be demanded during cross-examination. There are also laws that prohibit self-proclaimed defendants from cross-examining certain types of witnesses. These laws are intended to protect the rights of witnesses while providing a fair trial for defendants.
Inadmissible questions
Cross-examination must be conducted in a manner that does not reveal inadmissible evidence. If a party considers that a cross-examination question would lead to inadmissible evidence, they may challenge the question and the court may dismiss the question or indicate that the cross-examination party may proceed. In some cases, it may be unclear whether a question should be allowed, and the court may ask both parties to explain why the question should or should not be allowed.
Hearsay
Cross-examination questions that result in unacceptable hearsay from witnesses are not permitted. Inadmissible hearsay evidence is evidence of what another person said when that evidence is used to establish the truth of what the other person said. It is not inappropriate to testify by hearsay of what someone said, except to establish the veracity of what was said.
Relevance
Questions not related to the procedure cannot be cross-examined. If a party wishes to conduct cross-examination whose relevance to the proceedings is not immediately apparent, it should be prepared to explain the relevance of the question to the court and persuade it to admit it.
Opinion
Cross-examination questions that ask the witness to provide information or to express an opinion that the witness does not have or are not entitled to give are not permitted. For example, if a witness is a member of the public, it is not permissible to solicit a medical opinion or an opinion on a matter that has not been made public. In order for a witness to make such an opinion, the witness must be a professional with proven qualifications and experience in the relevant field.
However, it is permissible to ask witnesses for their opinions as long as they are within the bounds of common sense, such as the approximate age and speed of the vehicle.
Expert evidence
If an expert witness, such as a doctor, makes a material statement, that statement may be cross-examined. This may include questions regarding their qualifications and experience and the methods they used to reach their conclusions. If there are other expert opinions that conflict with the published expert opinion, these expert opinions may be presented to the expert for representation.
Self-represented defendants
When a person represents themselves in a controversial criminal case, they are responsible for interviewing witnesses for the prosecution. Such issues must balance the defendant’s right to a fair trial with the need not to further traumatize the victim and other witnesses. All states and territories, except Tasmania, now have legislation limiting cross-examination by self-represented defendants in certain types of matters. In Western Australia, courts have the discretion to prohibit face-to-face cross-examination of certain witnesses. Other jurisdictions have outright banned face-to-face cross-examination of sex crime victims, and in some jurisdictions this ban extends to other types of witnesses.
Improper questioning
You should not ask cross-examination questions such as:
- Misleading or confusing;
- Harassment, threats, insults, insults.
- Degrading, offensive or inappropriate.
- Based on stereotypes such as age, gender, race
In some jurisdictions, legislation imposes an affirmative obligation on courts to dismiss issues of this nature.
How to approach cross-examination
Unlike the main exam, cross-examination allows leading questions. Since effective cross-examination keeps witnesses under tight control and only allows terse answers, it is often suggested that all questions asked during cross-examination should be leading questions. Because open-ended questions such as “Why did you do that?” give too much freedom to the witness to state their opinion, and can harm the case of the party being cross-examined. , should never be cross-examined.
If you represent yourself, carefully prepare the cross-examination of each witness. Think exactly what you need to do to get each witness to confess and the best questions to ask in order to do so. . It is always better not to interrupt cross-examination, so try to frame your cross-examination questions in a way that minimizes the possibility of objection from the other party.
Once you get the necessary concessions from the witness, stop. When it comes to cross-examination, less is always more.
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