In a criminal trial or contested hearing, cross-examination occurs when one party questions a witness called by the other party in an attempt to expose weaknesses in their evidence. Cross-examination of each witness occurs after the witness’s examination-in-chief has concluded. This page deals with cross-examination in the ACT.
The purpose of cross-examination
Cross-examination aims to highlight the weaknesses in a witness’s evidence, expose inconsistencies and elicit facts that help the cross-examining party’s case. The common law places limits on what can be asked during cross-examination as does the Evidence Act 2011. The laws exist to protect the rights of those giving evidence while allowing accused persons to receive a fair trial.
Some of the limits on cross-examination are outlined below.
Under common law, a question must not be asked of a witness if it invites an answer that constitutes inadmissible hearsay. Inadmissible hearsay is evidence of something another person has said that is being recounted for the purpose of establishing the truth of the statement. It is permissible for a witness to give evidence of what someone else said if they are doing so for a purpose other than to establish the truth of the statement.
A cross-examination question will not be allowed if it invites the witness to give an opinion about a subject that they are not qualified to give an opinion unless it is a matter of common knowledge. For example, a witness who is a layperson could not ne asked to give a medical opinion.
A cross-examination question will not be allowed if it does not pertain to a matter that is relevant to the proceeding. If a party wants to pursue a line of questioning whose relevance to the proceeding is not obvious, they should be prepared to explain how it is relevant and persuade the court to allow it.
Under section 41 of the Evidence Act 2011, the court must not allow a question that is:
- Misleading or confusing;
- Is unduly annoying, harassing, intimidating, oppressive, humiliating, or repetitive;
- Is put in a tone that is belittling, insulting, or otherwise inappropriate;
- Has no basis other than a stereotype (such as the witness’s race or sex).
When a person has been called to give evidence as an expert, they will usually then be cross-examined by the opposing party. The cross-examination may include questions about their qualifications and experience and how they arrived at their conclusions. If there are other experts whose opinions contradict those of the expert witness, this may be put to the witness in an attempt to challenge and expose weaknesses in the evidence they have given.
If a person represents themselves, they will personally be responsible for cross-examining prosecution witnesses. These witnesses may include alleged victims. Under section 48 of the Evidence (Miscellaneous Provisions) Act 1991, a self-represented defendant is not permitted to personally cross-examine the following types of witnesses:
- witnesses with disability
- witnesses with intellectual impairment
in the following types of proceeding:
- family violence proceedings
- serious violence proceedings
- sexual offence proceedings
If a person wishes to represent themselves in any of those types of proceedings, protected classes of witness may be cross-examined by a person appointed by the court.
How to approach cross-examination
If you are representing yourself, you should thoroughly prepare your cross-examination of each witness. This means working out exactly what points you need to try to get each witness to concede and the best questions to achieve this. Try to find ways of working your questions that minimize the likelihood that the other party will object to your questions.
In cross-examination, unlike in examination-in-chief, leading questions are permitted. Leading questions are helpful in cross-examination as they keep the witness’s answers tightly controlled and allow for brief answers only. Open-ended questions such as ‘why did you do that’ should never be asked during cross-examination as they give the witness to much opportunity to explain themselves, which may damage your case.
If you require legal advice or representation in any legal matter, please contact Go To Court Lawyers.