Achieving best evidence? Reflections on the cross-examination of vulnerable witnesses in criminal trials in the UK and Ireland
Event details
Increasingly, governments around the world have introduced a range of special or alternative measures as a tool to facilitate vulnerable witnesses giving their ‘best evidence' (Hayes & Bunting, 2013). Some of the most prominent examples include the use of screens, the removal of wigs/gowns, live video-link, pre-recorded evidence and intermediaries who facilitate communication with a witness or a defendant. Although these reforms have helped alleviate some of the stress and anxiety associated with giving evidence (Burton et al, 2006; Plotnikoff and Woolfson, 2009, 2019), they have not altered the fundamental nature of cross-examination. However, in the course of the past decade, there has been a growing acknowledgement that there is a need for more fundamental change to the nature of cross-examination itself. Spearheaded originally by the senior judiciary in England and Wales (but increasingly with the support of senior judges in other jurisdictions), a new paradigm is emerging which shifts cross-examination away from barrister control towards a ‘best evidence’ model. Whereas cross-examination has traditionally been used by advocates as a means of winning cases, it is now restricted, particularly when it comes to vulnerable witnesses, to producing the ‘best evidence’ for the court (Henderson, 2015). In what has been described as a new ‘revolution’ in practice (Lord Judge, 2013), advocates are now being required to adapt their forensic techniques to suit the needs of the witness.
This talk reports some of the findings from the legal linguistic project ‘Mapping the Changing Face of Cross-Examination’ funded by the Nuffield Foundation and led by academics from the University of Nottingham and Nottingham Trent University. It presents examples of adaptions to the questioning of vulnerable witnesses in court, observed in a corpus of 56 trial transcripts, that ostensibly follow good practice guidelines. The discussion reflects the extent to which these changes do indeed facilitate vulnerable witnesses giving their ‘best evidence’.
