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Historical Progress and Purposes of Legal Cross-Examination

published January 24, 2013

By CEO and Founder - BCG Attorney Search left
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( 161 votes, average: 4.7 out of 5)
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Evolution of Right to Cross-Examination

Right to Jury Trial


To understand the art of cross-examination, counsel should have at least a smattering of the history of trials and of the right to cross-examine witnesses. The right to a trial, with or without a jury, might seem to include the right to oral testimony of witnesses, the right to cross-examine each witness, the right to produce witnesses in one's behalf, and the right to a conclusion by the triers of fact on what the testimony established.

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This is not the case. While trials have been used from medieval if not ancient times to determine the guilt or innocence of an accused, or to determine disputed facts, they have assumed aspects and procedures far different from those to which we are now accustomed. Historians believe that trial by jury was brought to England by the Normans (circa 1066); this presupposes that jury trial as a way of determining disputed facts was used by the Anglo-Saxons and Germanic tribes prior to the Norman Conquest. Our present-day jury trial either followed or was adapted from the common law of England.

Early Nonjury Trial Methods

Formerly there were several methods, other than trial by jury, for determining questions of fact. Trial by record was resorted to only when a right was claimed to rest on a record and the existence of the record was denied. The issue was determined simply by production of or failure to produce the record. Trial by inspection was used if the question to be determined rested on a physical object readily perceived by the senses. The judge resolved the issue by use of his own senses, and it was not considered necessary to summon a jury. Trial by certificate occurred when the only criterion of the fact in dispute was evidence of a person certifying to the fact. For example, if the question was whether a person was absent from the realm and in the king's army, this could be proved by the certificate of the Mareschal of the King s Host, under seal, transmitted to the justices of the court. Similarly, a person could prove that at a specified time he was in jail or beyond the sea or in a particular town, by presenting the certificate of the town warden or mayor. This evidence was conclusive, and it was not considered necessary to call witnesses.

Trial by witnesses could be had without the intervention of a jury. The judge formed his opinion and sentence solely on the witnesses' testimony and credibility. This was the only method of trial known to the civil law of England. Under the common law, all trials were by jury until 1873; thereafter the parties could agree to try the case by a court sitting without a jury.

Trial by wager of battle is of great antiquity. It was probably based on the military social structure of the time and the superstitious belief that Heaven would give the victory to the party who was in the right. This form of trial was introduced into England by William the Conqueror. The party claiming a right issued a wager of battle to the one who disputed the right. If the wager was accepted, each party declared on oath that his assertions and claims were truthful. A duel was then fought in the presence of the judges until one side yielded or was killed or until the stars shone in the sky. In certain instances litigants could appoint champions to fight in their place. The winner of the duel was entitled to judgment in his favor.

Trial by ordeal was closely akin to trial by wager of battle. It also was based on the assumption that God would protect the innocent and let him come through the ordeal unscathed. The party who claimed a right or was accused of a wrong would walk through fire or put his hand in a flame. If he came through unhurt, it was adjudged that his claim was right or that he was innocent. Other ordeals consisted of walking on hot ploughshares or plunging a hand into molten metal. If a woman was accused of being a witch, she was bound and cast into a pond, lake, or stream that had been blessed. If the water received her and she sank, she was innocent, but if the water rejected her and she floated, she was guilty.

None of these methods of trial now exist in civilized countries. Today disputes are tried before judges or juries on the production of testimonial or physical evidence or both.

Development of Jury Trial

The first juries were tribunals of 12 "good men and true" who were equals or peers of the litigating parties. The lord's vassals judged each other in the lord's court, while the kings’ vassals (the lords) judged each other in the king's court. Unlike present-day jurors, these peers were personally acquainted with the parties and the dispute, and they decided the issue on the basis of their personal knowledge.

Present Constitutional Basis

The sixth amendment to the United States Constitution states: "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed . . . and ... to be confronted with the witnesses against him . . .

"The seventh amendment provides: "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law." The laws of all the states also secure the right to trial by jury.

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The California Constitution article 1, 7, provides: "The right of trial by jury shall be secured to all, and remain inviolate . . . ."

Ancient Origins of Cross-Examination

The technique of cross-examining a witness is probably as old as the use of language itself. It is hard to imagine a time when people did not question a speaker to try to assess the accuracy of his statements. An early example of the use of and need for cross-examination is found in the Bible (Douay Version). Book of Daniel, chapter 13, recounting the story of Susanna and the elders. Two old men who had attempted, unsuccessfully, to seduce Susanna, a beautiful married woman, thereafter bore witness to the people of their tribe that she had accepted the attentions of a young man. The people were about to put her to death, when young Daniel intervened, saying, "Are ye so foolish, ye chil dren of Israel, that without examination or knowledge of the truth, you have condemned a daughter of Israel?"

Daniel 13:48. He then questioned the two elders out of each others presence about where the alleged event had taken place, and when they gave conflicting answers Susanna was absolved and the old men condemned.

Today we have done away with ancient barbarous methods of determining the truth, such as torture and Star Chamber procedures. But other forms of coercion, physical and mental, may still induce a witness to give false testimony in the hope of gaining immunity or reward, or out of fear, prejudice, or desire for revenge.

Cross-examination is the primary civilized tool for bringing these motives and the untruthfulness of the testimony to light. Failure to examine a witness's background, recollection, bias, and knowledge of the subject still can and often does lose a case that should have been won.

Purposes of Cross-Examination

Basic Elements

Skillful cross-examination is both a science and an art. It requires both passive knowledge and active performance. The examiner must be thoroughly familiar with the issues in the case, the applicable law, the character of each witness, and the techniques available to him as cross-examiner. He must then apply his knowledge in a well-controlled performance during the examination.

Reasonable Expectations

Modern fiction and TV shows to the contrary, seldom if ever does a witness break on cross-examination and admit he is the responsible or guilty party. In 50 years of trial experience. The witness may be a perjurer, but no matter how searching a cross-examination he undergoes, he will stick to the main theme of his testimony. Counsel may, however, elicit statements that damage the witness' testimony, destroy his credibility, display his prejudice, or contradict his prior statements, and that are favorable to counsel's client. These statements then are used in the argument to the jury or judge.

Why Cross-Examine a Witness?

The advantages of cross-examination are many. In a trial without cross-examination, the guilt or innocence and the rights of a party might be decided on perjured, biased, or erroneous testimony. Cross-examination helps to bring these to light. It can also be used to expand the testimony. As long as counsel stays within the scope of the direct examination, he can explore matters not fully covered before and ordinarily need not state the purpose of his inquiries. When the witness on direct has testified to only part of a conversation or transaction, or when only a portion of a writing is offered in evidence, the cross-examiner may develop the whole conversation, transaction, or document if it is pertinent.

Pitfalls

Counsel should be aware of certain dangers in cross-examining a witness. If the examiner brings out new matter, it is evidence to the same extent as if it were elicited on direct examination. This new matter is subject to redirect examination by opposing counsel. Great care must be taken, therefore, not to open the door to damaging matter that would be inadmissible or excludable by objection if brought up by the opposing party.

Denial and Waiver of Right

Cross-examination, subject to the rules of evidence, is- a matter of right, not of privilege. Denial by the court of proper cross-examination on a material point constitutes error. The error is committed whether the judge denies cross-examination entirely or only in part and whether he cuts off questioning at the outset or just unduly curtails it, if the proposed examination is material.

If death of the witness prevents cross-examination, counsel should move to strike the direct examination and admonish the jury to disregard it. If the motion is denied by the court, reversible error has been committed. Similarly, if a contumacious witness refuses to answer questions on cross-examination, his direct testimony can be struck.

The right to cross-examine can be waived. When the opportunity to cross-examine is given, a party's failure or refusal to take advantage of it constitutes waiver, whether in the course of taking a deposition (either orally or by written interrogatories), or in trial itself.

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Alternative Summary

Harrison is the founder of BCG Attorney Search and several companies in the legal employment space that collectively gets thousands of attorneys jobs each year. Harrison’s writings about attorney careers and placement attract millions of reads each year. Harrison is widely considered the most successful recruiter in the United States and personally places multiple attorneys most weeks. His articles on legal search and placement are read by attorneys, law students and others millions of times per year.

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published January 24, 2013

By CEO and Founder - BCG Attorney Search left
( 161 votes, average: 4.7 out of 5)
What do you think about this article? Rate it using the stars above and let us know what you think in the comments below.