Authored By: Sibabalwe Ngubentombi
University of Free State
Abstract
Although cross-examination has historically been hailed as the “greatest engine” for discovering the truth in court, contemporary legal experts and psychologists are highly sceptical of its true effectiveness. The inherent conflict between adversarial questioning and the constitutional guarantees of a fair trial and human dignity is examined in this article. The study contends that cross-examination is not a necessary part of a fair legal process by separating the right to cross-examine from the more general constitutional right to challenge evidence as established by the Supreme Court of Appeal.
The analysis also emphasises the psychological effects of adversarial questioning, pointing out that it frequently leads to the bullying of witnesses, especially children and victims of sexual assault, which results in false testimony and pacifying answers meant only to relieve the tension of the situation. This article argues that neutral, intermediary-led methods of questioning would better serve truth-finding and the protection of dignity by examining inquisitorial alternatives used in jurisdictions such as France and Germany, as well as the Nordic Barnahus system. In the end, the essay argues that disregarding the adversarial tradition of cross-examination has many benefits and little drawbacks.
Introduction
There is skepticism surrounding the efficacy of cross-examination, despite Wigmore’s praises of cross-examination being the most effective truth-finding tool in litigation.[1] It has been pointed that cross-examination is ineffective in finding the truth, instead it is an aggressive and oppressive method of challenging evidence.[2] Due to the fact that during cross-examination, witnesses are challenged to give their testimonies repeatedly through asking the same questions in different ways, it can thus be argued that it does not assist the truth finder, instead it threatens the accuracy of the testimonies of the witnesses.[3]
Right to a fair trial
A number of countries that have adopted the inquisitorial procedural systems and do not apply cross-examination, yet they still accommodate for the right to fair trial. Section 35(3)(i) of the Constitution[4] asserts that the right to fair trial includes the right to adduce and challenge evidence. The right to challenge evidence usually provides for the cross-examination of witnesses.[5] However, the Supreme Court of Appeal drew the distinction between the right to cross-examine and the right to challenge evidence even given the narrow constraints of the adversarial system.[6] Cross-examination is not the only way to challenge evidence, for instance, evidence could be challenged by disputing the admissibility of it or putting questions through a neutral third party, as is done in France, Egypt, and Germany.[7] Therefore, if it can be said that the purpose of cross-examination is to enhance fact-finding, then there is arguable too little to lose by doing away with cross-examination.[8]
Protection of the right to Dignity
It is often argued that cross-examination protects the right to dignity of the defendant, provided in section 10 of the Constitution.[9] However, this argument is negated when cross-examination fails and the defendant is punished for an act they did not commit or when a perpetrator goes unpunished, the right to dignity of the victim is negated.[10] It is necessary that the procedural system promotes the right to dignity by ensuring truth finding, however, it is clear that cross-examination is not a suitable tool for this task.[11]
The defendant’s right to participation
Cross-examination is often argued to cover the defendant’s right to participate effectively in the legal proceedings.[12] The right to participate in the proceedings is a requirement of the right to dignity provided for by section 10 of the Constitution.[13] However, this argument is also weakened by the fact that the participation of the defendant in the proceedings is restricted by cross-examination since the testimony presented to court is controlled by the legal representatives.[14] Thus, even though it is quite clear that the defendant’s participation in the proceedings is important, it is unclear whether cross-examination is necessary to facilitate for such participation, as the participation can also be accommodated in inquisitorial proceedings without the employment of cross-examination.[15]
The right to confrontation
The right to confrontation is believed to enhance fact finding in that it discourages fake accusations, facilitate assessment of demeanor, and ensures that the defendant is aware of the identity of the witness.[16] It is conceivable that the right to right to confrontation can be accommodated, either by having a neutral third party take questions from the defendant or in an inquisitorial system in which the parties will be in the presence of each other, without cross-examination.[17] Furthermore, it is not an absolute requirement to have face-to-face confrontation and cross-examination,[18] this confirms that there is not so much to lose by not allowing cross examination.
Vulnerable witnesses
Cross-examination continues to receive criticism on the grounds that it causes anxiety and dissatisfaction to witnesses.[19] Research reports that witnesses were often bullied and harassed, some reported feeling as if they were on trial during cross-examination.[20] These issues exacerbated amongst children, people with learning disabilities, and victims of rape and sexual assault.[21] The manner of questioning common amongst cross examiners confuses children and witnesses with learning disabilities, victims of rape and sexual assault on the other hand, are reported to suffer immediate distress accompanied by long term psychological complications.[22]
Methods such as the Nordic Barnabus (Children’s House) system, which is strongly recommended by the Europe Council, could be adopted to accommodate vulnerable witnesses such as children and complainants of sexual assault.[23] This method substitutes live cross-examination by conducting an investigative interview at the pre-trial investigation, at a remote location, with a neutral intermediary taking questions from advocates via an ear device.[24]
Traditional justifications for cross-examination
It is traditionally assumed that cross examination facilitates the ability of witnesses to understand questions and respond to them effectively.[25] However, in reality, communication is often obstructed. Witnesses are often unable to effectively memorise and recall events, and to articulate themselves, they often respond in a way that seeks to pacify the cross-examiner to escape the stressful setting.[26]
Conclusion
In conclusion, the widely held belief that cross-examination is the most effective way to obtain information is increasingly at odds with witness psychology and human rights realities. Rather than being an impartial search for the truth, cross-examination sometimes functions as an oppressive and confrontational approach that compromises the validity of the very evidence it is intended to examine. Although Section 35(3)(i) of the Constitution requires the right to contest evidence, the Supreme Court of Appeal’s jurisprudence makes it plain that this does not guarantee an unconditional right to live, in-person cross-examination.
Furthermore, the systemic failure to protect the dignity of vulnerable witnesses—who are frequently traumatised or confused by adversarial tactics—compromises the integrity of the legal system. As evidenced by the success of inquisitorial models and the Nordic Barnahus system, alternative methods such as pre-trial investigative interviews and neutral third-party questioning can encourage participation and truth-finding without the psychological harm associated with traditional cross-examination. To truly uphold the constitutional ideals of justice and dignity, the legal system must adopt these more thoughtful and practical procedural reforms, as cross-examination is not necessary for a fair trial.
Bibliography
- Schwikkard PJ
- Does Cross-Examination Enhance Accurate Fact-Finding. South African law journal 136(1):27-41.
- Schwikkard PJ & Van der Merwe SE
- Principles of evidence. 4th edition. Cape Town: Juta & Company (Pty) Ltd.
- Doak J, Jackson J, Saunders C, Wright D, Farinas BG & Durbiyeva S
- Cross-Examination in Criminal Trials Towards a Revolution in Best Practice. A Report for the Nuffield Foundation: Nottingham Trent University.
Case law
S v Ndhlovu 2002 (2) SACR 250 (SCA).
Legislation
The Constitution of the Republic of South Africa, 1996.
[1] Schwikkard PJ 2019:31.
[2] Schwikkard PJ 2015:392.
[3] Schwikkard PJ 2019:35.
[4] Constitution of the Republic of South Africa, 1996:sec35(3)(i).
[5] Schwikkard PJ 2019:36.
[6] S v Ndhlovu 2002 (2) SACR 250 (SCA): par.24.
[7] Schwikkard PJ 2019:36.
[8] Schwikkard PJ 2019:36.
[9] Schwikkard PJ 2019:37.
[10] Schwikkard PJ 2019:37.
[11] Schwikkard PJ 2019:37.
[12] Schwikkard PJ 2019:37.
[13] Schwikkard PJ 2019:37.
[14] Schwikkard PJ 2019:37.
[15] Schwikkard PJ 2019:37.
[16] Schwikkard PJ 2019:38.
[17] Schwikkard PJ 2019:38.
[18] S v Ndhlovu 2002 (2) SACR 250 (SCA): par. 24.
[19] Doak J et al :28.
[20] Doak J et al :7.
[21] Doak J et al :28.
[22] Doak J et al :29-30.
[23] Doak J et al :8.
[24] Doak J et al :8.
[25] Doak J et al :31.
[26] Doak J et al :31.
