In contested criminal matters in Western Australia, a large portion of the evidence commonly consists of cross-examination. Cross-examination occurs when one party challenges and tests the evidence of a witness who has been called by the other side. This may involve exposing weaknesses in the witness’s evidence or by suggesting that the witness is mistaken or is not telling the truth. Cross-examination of a witness is done after the witness has completed giving their examination-in-chief.
When the defence or prosecution is cross-examining a witness, they are aiming to highlight deficiencies in the other party’s evidence. This may include exposing inconsistencies in testimonies and eliciting facts and concessions that assist their case.
Under common law, there are limits placed on what can be asked during cross-examination. The uniform Evidence Acts and other legislation also impose limits on this.
There are also laws that prevent defendants who are representing themselves from cross-examining certain classes of witnesses such as complainants in sexual assault matters. These laws exist to balance the rights of persons giving evidence with the right of an accused person to a fair trial.
Inadmissible Questions During Cross-Examination
Cross-examination must not adduce evidence that is inadmissible. If a party thinks that a cross-examination question being asked by the other party invites inadmissible evidence, they may object and the judge or magistrate may disallow the question or allow the party to proceed. Sometimes it may be unclear whether a question should be allowed and the court may require both parties to make submissions as to why the question should or should not be allowed.
Parties are not allowed to ask questions during cross-examination which invite the witness to give inadmissible hearsay evidence. Inadmissible hearsay evidence is evidence of what someone else said when it is given in order to establish the truth of the other person’s statement. However, it is not inadmissible hearsay to give evidence of what another person said, for another purpose.
Parties are not permitted to ask cross-examination questions that are not relevant to the proceeding. If a party wishes to ask questions whose relevance is not obvious, they will be required to explain why the questions are relevant to the court and persuade it to allow them to be asked.
Parties must not ask witnesses to give opinions that they are not qualified to give. For example, if a witness is a layperson, they must not be asked to give a medical opinion about a matter that is outside of common knowledge. A witness is only qualified to give an expert opinion if they are suitably qualified.
It is, however, permissible to ask a lay witness to give an opinion on something that is common knowledge – such as how old a person appeared to be or approximately how fast a vehicle was moving.
An expert witness may be cross-examined about their qualifications and experience and how they arrived at their conclusions. If other expert opinions exist that contradict the expert evidence that has been given, these may be put to the expert witness to comment.
Improper Cross-Examination Questions
Cross-examination questions should not be:
- Misleading or confusing;
- Belittling, insulting or inappropriate;
- Harassing, intimidating, humiliating or offensive;
- Based on a stereotype, such as age, gender or race.
In some jurisdictions, legislation imposes a positive duty on courts to disallow questions that fall into the above categories.
How To Approach Cross-Examination
Leading questions, questions that suggest the answer, are permitted in cross-examination. In fact, leading questions are generally considered more effective than open-ended questions as they allow only brief answers and keep the witness tightly controlled.
Open-ended questions, such as “What happened next?” should not be asked during cross-examination because they give a witness too much freedom to explain themselves.
If you are representing yourself, be sure to prepare your cross-examination carefully. Work out exactly what information you need to get from each witness and the best questions to ask to achieve this. Try to word your questions in a way that minimises the chance of objections as it is better not to have your cross-examination interrupted.
Once you have obtained the concessions you need from each witness, stop.
If you need legal advice or representation in any other legal matter please contact Armstrong Legal.