Mapping the changing face of cross-examination in criminal trials

The project team will be conducting in-depth research on the nature of cross-examination which is centred on English criminal trials but is also drawing comparisons with the neighbouring jurisdictions of Scotland, Northern Ireland and the Republic of Ireland. 

Cross-examination is an iconic part of the judicial system in the common law world. However, behavioural psychologists and linguists have cast doubt on the idea that cross-examination is the gold standard for testing oral evidence. The high attrition rate in cases involving particularly vulnerable witnesses contributed to the current rethinking on the role of cross-examination in the criminal justice system.

Successive governments have introduced measures to try to protect vulnerable witnesses, particularly children, victims of sex crimes and people with learning disabilities. Members of the senior judiciary are building on this by spearheading changes to cross-examination itself. They are looking to shift the purpose of cross-examination away from the traditional advocacy model used as a way of winning cases, towards a ‘best evidence’ model where it is used as an investigative tool. In support of this change, Criminal Practice Directions now require judges to take control of cross-examination in cases involving vulnerable witnesses. Furthermore, all criminal advocates will receive training in ‘best evidence’ cross-examination methods.

Reforms have begun to influence professional attitudes and judicial processes, but there is insufficient research on the changing nature of cross-examination. The project team will be conducting a pioneering study examining whether legal, policy and attitudinal approaches to cross-examination are affecting the way vulnerable witnesses are questioned. The research will involve corpus linguistic analysis, trial observations, jurisdictional comparisons, legal analysis, procedural analysis and interviews with judges, advocates and intermediaries.

The team will be working towards several research objectives:

1. Determining whether the new ‘best evidence’ model of cross-examination is displacing traditional theories concerning the role of cross-examination within the contemporary criminal trial.
2. Ascertaining to what extent judges are managing the process of cross-examination.
3. Determining how advocates are responding to the judicial management of cross-examination.
4. Establishing whether there is a material difference in the way vulnerable witnesses are being questioned, as opposed to other types of witnesses.
5. Benchmarking international best practice to develop protocols that ensure the practice of cross-examination produces best evidence.
6. Strengthening the link between research teams and end-users (policymakers, advocates, judges and victim support groups) to help disseminate the information produced by the project.

Upon completion of this three-year project, the findings will be shared among a wide audience of professional training bodies, policy makers, judges, advocates and intermediaries. They will be better equipped with the knowledge and skills to ensure cross-examination is conducted in a way that produces best evidence, thereby ensuring a fair trial, while reducing the potential impact on vulnerable groups. The information will be disseminated through written briefs delivered to the beneficiaries, journal articles and direct engagement with stakeholders.