Sir Thomas Smith (1513-77) appears to be the first to mention cross-examination. In his De Republica Anglorum (published 1583), he notes a (civil) trial which had ‘not only the examination but also the cross-examination of witnesses in the presence of the judge, the parties, their counsel and the jury’.
John Henry Wigmore (1863-1943) was dean of the law school at Northwestern University at Evanston, Illinois, 1901-29. He got his law degree from Harvard in 1887, and thus knew as little about justice as anyone trained by Christopher Columbus Langdell. In A Treatise on the System of Evidence in Trials at Common Law (1904), Wigmore said cross-examination is ‘beyond any doubt the greatest legal engine ever invented for the discovery of truth’. That is true, but it also false in several respects. It implies that the system seeks the truth, and it omits two things: that the aim of defence lawyers is usually to obscure the truth, and that accused can avoid the truth engine by staying out of the witness box.
Irving Younger (1932-88), prosecutor, defence lawyer, judge, and academic, is revered for his lectures on the law (a snip at US$720 for the DVD). His basic approach is revealed in a question he suggested be put to a hostile witness: ‘Is it not true that last night you committed sodomy on a parrot?’
Yale Professor John Langbein said ‘cross-examination ... is often an engine of oppression and obfuscation, deliberately employed to defeat the truth’. Justice Russell Fox wrote:
Cross-examination may help the elucidation of the truth, but it may also obscure the truth, and quite often is designed to that end … a clever cross-examiner can make even the most reliable testimony look questionable, and can so confuse the context that an understanding of the answers becomes blurred.
Techniques to create a ‘reasonable’ doubt include lying to witnesses, asking the same question with slight variations to trick them into answering Yes when they mean No; and verbal thuggery to intimidate and ‘destroy’ dangerous witnesses.
The oath imposed on witnesses to tell the truth, the whole truth and nothing but the truth is a legal fiction. The whole truth cannot be told in Yes-No answers, e.g. Have you stopped beating your wife? But one of Younger’s 10 Commandments of Cross-examination is: ‘Never permit the witness to explain his or her answers.’ In France and Germany, witnesses give evidence as a narrative.
Defence lawyers fear the truth because almost all their clients are guilty. Younger commanded: ‘Never ask a question to which you don’t already know the answer.’ Even the sainted Atticus Finch (To Kill A Mockingbird, 1960), who put thousands of young idealists into the lying trade, said:
Never, never, never, on cross-examination ask a witness a question you don’t already know the answer to, was a tenet I absorbed with my baby food. Do it, and you’ll often get an answer you don’t want, an answer that might wreck your case.
OxfordLQ notes a passage in lawyer-novelist Erle Stanley Gardner’s The Case of the Queenly Contestant (1967):
[Perry] Mason: ‘The purpose of cross-examination is to find out whether a witness is telling the truth.’
Lovett laughed sarcastically. “That’s the line they try to teach you in the law books and in the colleges. Actually, when you come right down to it, you know and I know, Mason, that the object of cross-examination is first to find out to your own satisfaction if a witness is telling the truth, then you go on to the next step – which is to try and confuse the witness so that any testimony the witness has given is open to doubt..’
Rape is a crime which incurs a prison sentence of up to 35 years, but malevolent cross-examination is a factor in the fact that the adversary system does not deter serial rapists. A 1993 British Home Office study found that 99% of rapists escape justice. In 2003, the NSW Bureau of Crime Statistics and Research estimated that 12,000 women were victims of a sexual or indecent assault, but only 2707 (22.6%) reported the crime to police. Of those, 858 (31.7%) were charged; and 361 (42%) were found guilty. In terms of the estimates of actual rapes, that is a conviction rate of 3%.
In May 2007, Janet Fife-Yeomans and Lisa Davies reported in The (Sydney) Daily Telegraph that 70-90% of rapes are not reported; that 80% of reported rapes are not prosecuted; and that of those prosecuted nearly 75% are found not guilty. If, say, 80% of rapes are not reported, the figures mean that 20 in 100 are reported, four are prosecuted, and one results in a guilty verdict.
The rates are low partly because brutal and pornographic cross-examination deters victims from testifying. Dr Caroline Taylor, author of Court-Licensed Abuse (Peter Lang, 2004), told The Sydney Morning Herald’s Edmund Tadros on 9 December 2004:
…the “sluts and nuts” defence – the complainant either asked for it or is lying – is common … It is typically trial by attrition, where the courts exclude compelling evidence or evidence that is central to fact-finding. The gaps can then be filled in with the legal codswallop about the lying, conniving, slutty, nutty woman.
Tadros quoted Stephen Odgers, chairman of the NSW Bar Association criminal law committee, as saying:
I've had complainants who have vomited in the witness stand in response to questions I've asked them. My reaction as a person who may suspect that they are innocent victims – I can only feel sympathy for them. Then there's me as my job, performing my role, which I believe to be an important role in the system of justice, who believes that I acted ethically. I've cross-examined in what I regard as a perfectly legitimate manner, and it's regrettable, but I don't blame myself for that outcome.
‘Belinda’, 22, the victim in one of four cases in Court-Licensed Abuse, said:
I know it's part of [the lawyer’s] tactics but you don't need to keep asking the same question. That's one of the most confusing parts, where they keep asking the same question and they're rewording it to try and slip you up.
Dr Taylor said:
What the defence barrister wants to do is continually shock and confront [the complainant] to affect the quality of her evidence. A standard tactic … is to attack complainants with such ferocity at a committal hearing that they are too afraid to go to trial.
I asked an authority of the French and German systems, Bron McKillop, of Sydney University’s law school, in January 2008 if I would be right to assume that courts in those countries convict in 90% of rape cases. He replied:
Your assumption is, I believe, broadly correct. In France the acquittal rate across the three levels of criminal jurisdiction (including the cour d’assises which hears rape cases [viols] is about 5%. I am not aware of any particular variation for rape as opposed to other offences. In the investigation systems, the compilation of a dossier available at the trial and the criteria for committal result in a similarity of outcomes across the boards. I don’t have the figures for Germany but I would think that the systemic civil [European] law similarities would result in similar outcomes, although the lesser role played by the dossier at a German trialand the greater reliance on oral evidence may result in more acquittals.
Common lawyers claim they are ethically obliged to even cross-examine child victims in a brutal and pornographic way. Four Corners, a programme on a public broadcaster, the Australian Broadcasting Corporation, aired a television programme on sex crimes against children in 1999. Reporter Peter George noted a case in which a mother heard her five-year-old son crying in a lodger’s room. The boy came out with his shorts in his hand and told her what happened. She called police and semen was found in his anal passage. There was a witness, an immediate complaint, and evidence corroborating the boy and his mother. The verdict was not guilty.
Four Corners re-enacted the preliminary hearing of a case in which a Queensland mother said her best friend’s husband anally penetrated her son, 7. Russell Clutterbuck cross-examined the boy for five hours, with breaks to stem the sobbing. Clutterbuck asked him questions about oral sex:
Have you ever seen this done before? – No.
Have you ever been in the house when your
mother’s done this? – No.
Are you sure? – Yes …
You didn’t tell the other policewoman the first
time, did you? – No.
No. That’s because it didn’t happen, isn’t it, John? - It did happen …
Well why are you crying if the story is true, John? - Cos you said it isn’t. …
John, you know what telling lies means, don’t you? And that’s what you’re doing today, isn’t it? - I’m not telling lies ...
See, I can stand here all afternoon and ask you all sorts of questions and until you tell me the truth I won’t stop.
The trial verdict was not guilty.
Dr Caroline Taylor told Edmund Tadros in 2004: ‘If people knew that kids as young as seven have been asked whether they fingered their own vagina, they would ask: “What is going on here?”.’
An Australian study found that lawyers and judges whose children had been sexually violated would not subject them to the second trauma of cross-examination.
In 2002, the Auckland (New Zealand) Law Society issued a paper suggesting that in rape cases the right of silence could be removed, and the charges heard according to inquisitorial procedures. In 2009, the Justice Minister, Simon Power, was considering further suggestions that truth-seeking procedures be used in rape cases.
