Cross-Examination

How the evidence of a witness is tested at trial

All Contents > Witness Evidence and Questioning > Examination-in-chief > Cross-examination > Re-examination

“The purpose of cross-examination is to test the evidence of a witness, to expose weaknesses where they exist and, if so, to undermine the account the witness has given.”

On this page:

What is cross-examination?
Putting your case
Testing the reliability and credibility of a witness
When does cross-examination take place?
Conducting a cross-examination
Vulnerable witnesses and defendants
Restrictions on cross-examination
If I am representing myself can I cross-examine a witness?
Further Information on Defendants in Person

What is cross-examination?

During their evidence-in-chief a witness is given the opportunity to give their version of events on behalf of the party who called them.

Cross-examination is the opportunity for the other side to put its version of events to the witness (known as ‘putting the case’) and to raise any other relevant matters which are capable of undermining their evidence.

The purpose of cross-examination is to test the evidence of a witness, to expose weaknesses where they exist and, if so, to undermine the account the witness has given.

This includes testing the reliability of their evidence and/or their credibility as a witness.

Putting your case

After a witness has given their account during their evidence-in-chief, they will then be cross-examined by the opposite party, so a prosecution witness will be examined-in-chief by the prosecutor, then cross-examined by the defence.

The first aim of cross-examination of a witness is to test that witness's evidence by putting your case (your version of events) to him/her.

For example, if a prosecution witness has given evidence-in-chief that the defendant punched him in the face, but the defence case is that that someone else was responsible, the defence advocate will put the defendant’s version to the witness in cross-examination.

This gives the prosecution witness the opportunity to respond to the defence case and either agree or disagree with it. It also means that, by the end of the cross-examination, it should be clear from these questions what the defence case is.

Failure by an advocate to put the case on a point in dispute will mean that the advocate tacitly accepts what that witness said on that point during their evidence-in-chief.

It will also prevent the advocate being able to deal with this point in their closing speech, i.e. you can’t suggest in a speech that a witness is mistaken or lying about something, or is responsible for something, that you haven’t even asked them about, exploring why they might be mistaken, putting to them clearly that they are not telling the truth, or being clear about what it is suggested they have done. Failing to put your case on such a point will prevent the witness from being able to respond, prevent the prosecution from being able to respond and prevent the magistrates or the jury from being able to assess the response.

For these reasons, putting the case clearly to a witness is crucial.

“Now that is a considerable accusation to make, and one which if it was to be made, should have been put to Detective Chief Inspector Richardson, the senior investigating officer when he was in the witness box, so that he could deal with it. He has had no opportunity of dealing with what is a very grave allegation… Counsel simply cannot wait until his closing speech to make such an allegation because the Crown have no way of answering it or dealing with it.”

— Extract from the judge's summing-up referred to by the Court of Appeal in R v Farooqi [2013] EWCA Crim 1649

Testing the reliability and credibility of a witness

A witness’s account of what took place may be flawed for a number of reasons. The witness may have made an honest mistake, their account may be confused (such as with a fast moving event), they may have been influenced by speaking to someone else, they may have subconsciously filled in the gaps of what they actually witnessed, or they may have a motive for lying or otherwise deliberately misleading the court. On the other hand, they may be an honest witness giving a genuine and accurate account of what took place.

If there are weaknesses in the account given by a witness, the cross-examination will seek to expose them. Testing the reliability of the evidence given, or the credibility of the witness can include, for example:

If a witness has given a different version of events previously to the version given at trial, their previous inconsistent statement can be put to them.
If an eyewitness has given evidence that they saw a defendant commit the offence, and the defendant denies being present at the scene, they can be asked about distance, lighting conditions, obstacles, length of observation etc. which may demonstrate a real possibility of mistake, or that the witness is not telling the truth. These visual identification issues are known as Turnbull factors, from the case of R v Turnbull [1977] QB 224.
If the defendant’s case is that the witness is lying for a particular reason, such as due to a grudge, this can be put to the witness to gauge their response and allow the magistrates/jury to assess whether they believe the witness or not.
If a witness has previous convictions, these can reflect on their credibility and the quality of their evidence, e.g. previous convictions for assault may demonstrate an aggressive nature; previous convictions for dishonesty such as theft and fraud may reveal a dishonest nature; convictions for perjury or perverting the course of justice are likely to reveal a wilingness to lie on oath.

NB Using previous convictions of a defendant or a witness must be relevant to the case being tried and require a ‘bad character’ application to be made to the judge or magistrates.
For more information go to Bad Character >>

When does cross-examination take place?

The cross-examination of a witness takes place at trial after their examination-in-chief.

In trials involving only one defendant, the order is as follows:

After a prosectution witness has given evidence-in-chief, the defence advocate will cross-examine the witness.
After a defendant or a defence witness has given evidence-in-chief, the prosecution will cross-examine the witness.

In trials involving two or more defendants, the order is as follows:

After a prosectution witness has given evidence-in-chief, the advocate for the first defendant will cross-examine, followed by the advocate for the second defendant, then the third etc.
After a defendant or defence witness has given evidence-in-chief, the representatives for the remaining defendants can (if they choose to do so) individually cross-examine the defendant or defence witness. When finished, the prosecution representative will cross-examine.

Cross-examination of one defendant by a co-defendant’s advocate will usually only take place where there is a dispute between them, for example where there is a ‘cut-throat’ defence (i.e. defendants blaming each other for the crime).

In a limited number of Crown Court pilot areas, pre-recorded cross-examination and re-examination can be used as a ‘special measure’ for witnesses. When combined with pre-recorded evidence-in-chief this will prevent the need for a witness to attend trial.

For more information on special measures, go to Witness Protection & Support >>