An Evaluation of Cross Examination - Term Paper Example

Cross Examination Introduction: Cross examination is vital in a case because it helps in the discovery of the facts surrounding a case. It is the oral examination of a witnesses by the opposing counsel and it follows a direct examination. It is only facts revealed in the direct examination which can form the basis of questions that are put to the witnesses/defendants during the cross examination process. There are also other restrictions on the kind of evidence that may be subjected to cross examination, for instance evidence relating to the bad character of a defendant or prior offending history was earlier limited or restricted, in order to avoid the possibility of prejudice in the final outcome. In the case of witnesses in sexual offences cases, the prior sexual history of the complainant may not be allowed to be included in cross examination, unless sit contains issues of substantive fact and probative value. The cross examination is conducted by the opposing counsel and in the case of experts, submitting themselves to a cross examination means that their reputation and credibility will be at stake.1 It is necessary that the responses provided are very accurate because a slight variation can be equated to a lie by a cross examining attorney through suggestion.2 Experts are often subjected to rigorous cross examination because the final outcome of a case in several instances may rest upon the testimony provided by the expert witness. Counsel use several tactics in order top elicit evidence from the witnesses through the process of cross examination. One such tactic is to read aloud a statement from a document and ask the witness if it is correct. If the witness agrees, then s/he is agreeing to the statement contents as well as the attorney’s recitation of it.3 This can sometimes serve to allow the cross examining counsel’s perception of events to be thus recorded and may influence the final outcome of the case. While cross examination in general is very important, two of the most contentious areas have been cross examinations on bad character of defendants and cross examination of prior sexual offences, both of which are discussed below. Cross examination of a defendant in cases involving bad character: When a plaintiff is being cross examined, the opposing attorney may not be allowed to include any questioning dealing with the prior character of the plaintiff, unless it is an issue of defamation.4 It is the Plaintiff who adduces evidence rather than the defendant and the general rule established in law is that prior evidence on a person’s character will be considered irrelevant and not allowed in cross examination unless it is a probative issue.5 In general, evidence of past bad character of any person including the defendant is not admissible and no cross examination on it is allowed by the courts. Section 101 of the Criminal Justice Act of 2003 allows for some instances where evidence about bad character may be admissible and may be allowed in cross examination. For instance, evidence about a defendant’s bad character may be admissible if “the evidence is adduced by the defendant himself or is given in answer to a question asked by him in cross examination and intended to elicit it.”6 In the case of Bradley7the Court of Appeal expressed the opinion that “the provisions [on bad character]…..have been brought into force prematurely, before appropriate training could be given by the Judicial Studies Board…..”8 There have been several cases where the issue of bad character and its provisions under the Criminal Justice Act have arisen. Evidence relating to previous allegations which resulted in an acquittal was raised in the case of R v Z9 and such evidence was held to be admissible and allowable for cross examination as well. In the recent case of R v Edwards and Rowlands10 the Court allowed cross examination of the defendant on his previous convictions, and especially in relation to his possession of a firearm. The defendant appealed on the basis that the judge was wrong to allow cross examination on his previous convictions. The finding of the Court in this instance was that the evidence of the firearm was not evidence of bad character and was thus admissible. Since the conviction of the defendant was on grounds of conspiracy, and the evidence about the cartridge in the firearm pertained to the facts of the offence and thus has probative value, it was held to be admissible. The question of the extent to which cross examination on evidence pertaining to bad character can be used thus depends upon whether or not the evidence is admitted. Once this has occurred, the evidence can be used for any purpose, including cross examination. Section 1(3) (b) of the Criminal Evidence Act of 1898, now replaced by Section 101(1) (g) of the Criminal Justice Act of 2003 allowed cross examination of a defendant on his or her bad character where “the nature or conduct” of the defence is such that it involves “imputations of the character of the prosecutor or the witness for the prosecution….” The second part of the section 1(3) (b) of the Criminal Evidence Act of 1898 allowed cross examination where the issue was one of the defendant’s credibility, but this has not been included in the Criminal Justice Act of 2003 . The reason for this is because the second part of Section 1(3) (b) raises a difficult issue in the context of cross examinations on previous convictions which are very similar to the offence being charged, because their prejudicial impact could be too great and compromise the question of justice being done to the defendant and the fairness of the trial. The position on cross examinations and the limitations to which it could validly be subjected to were raised by the Court of Appeal in the case of R v Mcleod11 where the Court explained that the primary purpose of cross examinations on the previous convictions and bad character of the accused is to demonstrate that he may not be worthy of belief. But while this should not and cannot be used as the basis to automatically conclude that he has committed the offence for which he is being charged, merely suggesting through cross examination that he has committed similar kinds of offences is not in itself improper. “In every case where the accused has been cross-examined as to his character and previous offences, the judge must in the summing-up tell the jury that the purpose of the questioning goes only to credit and they should not consider that it shows a propensity to commit the offence they are considering12. The introduction of Section 101 (1) (g) in the Criminal Justice Act of 2003 has thus helped to address many of the difficulties in the old law, which did not allow for the introduction of evidence pertaining to bad character. According to Munday, under the old law, it was very difficult for those seeking to determine the facts of a case to make a clear distinction between issues pertaining to credibility of the defendant and the propensity of the defendant to commit crimes.13 The current position on cross examination on the grounds of bad character was best set out in the case of R v Renda14 whereby the question of cross examination on bad character is to be left to the discretion of the fact finders/judges within the context of individual cases. Several of the decisions or rulings questioned in these appeals represent either judgments by the trial judge in the specific factual context of the individual case, or the exercise of a judicial discretion………. As we explain in one of these decisions, the trial judges feel for the case is usually the critical ingredient of the decision at first instance….”15 Cross examination in sexual offences cases: Evidence pertaining to previous sexual history of complainants in sexual offences cases is also subject to restrictive provisions on the issue of cross examination. A Report published by the Home Department specifically stated that many women who report a rape to the police and then subsequently withdraw their complaints is because they are “deterred by the prospect of cross examination in public on their previous sexual history.”16 Section 41 of the Youth and Criminal Justice Act of 1999 sought to restrict cross examination of a complainant in a sexual offences case about previous sexual history on these grounds. In the case of R v A17 however, the House of Lords applied Section 3 of the Human Rights Act of 1998, and concluded that any evidence which is required to ensure a fair trial under the provisions of Article 6 of the European Convention of Human Rights should not be held to be inadmissible, where the net result could be that the defendant’s right to a fair trial is compromised. In the recent case of R v F18 photographs and videotapes of the complainant were restricted from being included in cross examination. But this was later turned down by the Court of Appeal on the grounds that the trial judge’s refusal to allow cross examination on complainant’s past sexual history compromised the effective determination in the case about whether complainant’s relationship with the defendant was one of submission or participation. McGowan concludes that this case also shows that when evidence is probative, relevant and fulfils the statutory requirements19 cross examination on such evidence must be included and cannot be restricted20. Conclusions: On the basis of the above, it may be noted that the legal provisions which existed earlier were somewhat confusing and created grounds where justice could in some instances be compromised through the failure to permit cross examination in some instances. It may be argued that incorporating some restrictions in cross examination is beneficial in that it prevents the interests of the defendant being prejudiced and thereby does not compromise the fairness of the trial. However, with the developments in the law after the introduction of the Criminal Justice Act of 2003, cross examination in these areas has been refined, as there is an increasing recognition of the need to apply the law such that it is relevant in the context of the circumstances of individual cases. By excluding evidence and cross examination on bad character and prior sexual offences on a blanket case basis, the interests of fairness may actually be being compromised even more. As the cases discussed above will show, there have increasingly been instances where the courts have allowed cross examination on such issues where it has been deemed to be relevant and of probative value in determining the facts of the case and arriving at a fair outcome. Bibliography Cases cited: * Cornwell v Myskow (1987) 2 All ER 504 * R v F (2005)EWCA Crim 493 * R v Renda (2005) EWCA Crim 2826 * R v A (no: 2) (2001) UKHL 25 * R v McLeod (1994) 3 All ER 254 * R v Bradley (2005) EWCA Crim 20 * R v Z (2000) 2 Cr App R 281 * R v Edwards and Rowlands (2005) EWCA Crim 3244 * Scott v Sampson (1882) 8 QBD 491 Books/Journals: * Home Office 1998. “Speaking up for Justice: report of the Interdepartmental working group on the treatment of vulnerable and intimidated witnesses in the Criminal Justice System” London: Home Office. at para 9.57 * Matte, James Allan, 2000. “Examination and cross examination of experts in Forensic Psychophysiology using the polygraph”, J.A.M. Publications at pg 168 * Munday, R, 1994. “The paradox of cross examination to credit -= Simply too close for comfort”, 53 Cambridge Law Journal, 303-25 * McGowan, Laura, 2006. “Court of Appeal: Evidence: Cross examination of complainants in sexual offences cases”, Journal of Criminal law, 70(4): 289 Legislation cited: * Criminal Justice Act of 2003 * Youth and Criminal Justice Act of 1999 Read More