What is cross examination?
Cross-examination occurs after examination in chief and is the process of questioning the opponent’s witness. As the word suggests, cross-examination is to cross-examine the opposition witnesses’ testimony. During cross-examination, you will be able to challenge the truth or accuracy of the opponent’s witness’s version over disputed events.
Why is cross-examination important?
Let us look at five reasons why cross-examination is such an important tool in any trial.
Right to a fair trial
Every person in South Africa has the right to a fair trial. This is a fundamental right enshrined in the Constitution of the Republic of South Africa. This, in essence, is what makes cross-examination important. Cross-examination allows the accused and the defendant to thoroughly analyse and challenge the evidence brought forward by opposing witnesses. Cross-examination is a right and preventing cross-examination from happening might violate the fundamental right to a fair trial.
Seeks out the truth
“Cross-examination is the greatest legal engine ever invented for the discovery of truth,” said John Henry Wigmore. Cross-examination seeks out the truth. When a witness brings their account of disputed events, cross-examination gives the cross-examiner the ability to question all evidence brought forward by the witness. Separating lies from the truth is essential during cross-examination.
Determines accuracy
Determining inaccuracies in a witness’ statement can damage the overall case brought forward by the opposing party. If the cross-examiner realises that there are inaccuracies of any kind, they should address these inaccuracies directly. Determining the accuracy of the witness’ evidence will require the cross-examiner to listen attentively and carefully to everything said by the witness. Anything that does not correlate with the facts, must be disputed. This requires the cross-examiner to be very familiar with all the facts of the case, to prevent the possibility of missing fatal flaws in a witness’ statement.
Tests the credibility of the witness
Very few things can damage a party’s case more than the credibility of a witness. A wide variety of factors are taken into consideration when testing the credibility of a witness. The credibility of a witness relates to their sincerity and whether they are speaking the truth as they believe it to be. Cross-examination is most effective if the cross-examiner can challenge areas that directly call into question the credibility of the witness. This can be done by challenging the reliability of the witness’s testimony.
Challenges the reliability
This links well with almost all the aforementioned points. Challenging the reliability of the witness’s testimony will make or break a case. If the witness brought forward unreliable evidence in their testimony, it is the duty of the cross-examiner to challenge such a testimony. Points such as accuracy, truthfulness, and credibility all come in play here. If the cross-examiner notices questionable areas in a testimony, they can challenge the reliability of these areas to ensure that the evidence presented in the case is true, reliable, and fair.
We hope this article has highlighted the importance of cross-examination. Are you aware of the new rules of cross-examination? Gawie le Roux Institute of Law’s trial advocacy course provides practical guidance on cross-examination for both novice and experienced trial practitioners interested in reinforcing and reinvigorating their cross-examination skills.
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