Cross-Examination in Child Sexual Assault Trials: Evidentiary Safeguard or an Opportunity to Confuse?
Cossins, Anne, Melbourne University Law Review
[A central feature of the Australian court system is the use of cross-examination as the main means by which eyewitness evidence is tested The ability to test evidence by cross-examination has come to be viewed as a right of an accused. This right, however, is not absolute--it is qualified by the interests of the community, which include the protection of victims of child sexual assaults. Recent studies have shown that cross-examination, far from ensuring that the truth is revealed, often causes inaccuracies in the evidence of children. This is due to the strange language of the courtroom (usually completely foreign to children), the linguistic techniques and other tactics employed by defence counsel and the true purpose of cross-examination in child sexual assault cases: an attempt by the defence to create confusion and inconsistencies. Studies also show that jurors tend to apply their preconceived views on sexual assaults when evaluating the evidence of children. Despite the power to do so and despite training, judicial officers are often reluctant to intervene to protect child sexual assault victims when giving evidence. All of this means that cross-examination in child sexual assault trials can be as traumatic for the victim as the sexual assault itself. This article thus argues that the questions that can be asked of child sexual assault victims should be limited so as to make their experience less traumatic and maximise the accuracy of their evidence. It concludes by suggesting provisions that could be enacted in all Australian jurisdictions to achieve these aims, through the elimination of repetitive and suggestive questions, limits on accusing child witnesses of lying, and the use of professional intermediaries who evaluate children's ability to answer a question.]
CONTENTS I Introduction II The Right to Cross-Examine: An Absolute Right? III Inquiries into the Role of Cross-Examination in the Child Sexual Assault Trial IV The 'Strange Language' of the Courtroom: Are Leading Questions and Confusion the Way to the Truth? V Studies Examining the Impact of Cross-Examination on Children's Evidence VI Juror Beliefs and Biases: The Impact of Rape Myths and Stereotypes during Cross-Examination VII Judicial Intervention: The Best Control of Cross-Examination? VIII Reforms to Cross-Examination IX Conclusion: Recommendations for the Way Forward
One of the key features of the adversarial criminal trial is the giving of oral evidence by witnesses and the testing of that evidence through cross examination. The 'primacy of the oral tradition', (1) within a culture of adversarialism, has produced entrenched patterns of testing oral evidence through leading questions that utilise complex vocabulary, sentence construction and syntax. (2) Such techniques have been described as 'legitimated bullying.' (3)
For children, cross-examination is that part of court proceedings where their 'interests and rights ... are most likely to be ignored and sacrificed.' (4) Because of this, the child sexual assault trial has been described as a 'legally sanctioned' (5) forum in which children can be emotionally traumatised by the unregulated behaviour of defence counsel and by questions that children do not understand or cannot answer. (6) Children, as a group, are therefore disadvantaged by a criminal justice process that 'does not allow them to participate on a full and equal basis', (7) even though their evidence is central to the prosecution's case.
Numerous historical and recent analyses show that trials involving sex offences are governed by specific rules of evidence, judicial warnings and methods of cross-examination that were originally based on cultural beliefs about women's and children's propensity for promiscuity and lying. (8) These beliefs are well entrenched, not least because of the judicial repetition throughout the centuries (9) of Lord Hale's assertion that rape is 'an accusation easily to be made yet hard to be proved,' (10) a view that is still used as the basis for justifying protections for the accused. …