Hostname: page-component-586b7cd67f-vdxz6 Total loading time: 0 Render date: 2024-11-30T15:08:58.610Z Has data issue: false hasContentIssue false
  • English
  • Français

The mosaic art?: cross-examination and the vulnerable witness1

Published online by Cambridge University Press:  02 January 2018

Louise Ellison
Louise Ellison*
Affiliation:
University of Reading
Get access Rights & Permissions [Opens in a new window]

Abstract

Cross-examination is lauded within the common law tradition as the definitive forensic device for exposing testimonial infirmity. Victimological study of criminal trial proceedings has, however, revealed the extent to which cross-examination is used as a tool to humiliate, intimidate and confuse opposing witnesses. Particular difficulties confront children and those with learning disabilities as little reference is made during cross-examination to their special communicative needs. This paper reviews the tactics and techniques employed by cross-examiners to systematically destroy the credibility of those with limited language capability. The main aim of the paper is, however, to demonstrate the significant limitations of what may be termed an accommodation approach to the problems facing vulnerable witnesses, whereby ‘solutions’ are sought and crafted within the established trial framework. Such an approach ignores the very nature of adversary advacacy and the potent structural barriers to effective regulation of courtroom questioning within an adversarial system of trial.

Type
Research Article
Information
Legal Studies , Volume 21 , Issue 3 , September 2001 , pp. 353 - 375
Copyright
Copyright © Society of Legal Scholars 2001

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

Footnotes

1

Title taken from J Iannuzzi Handbook of Cross-examination: The Mosaic Art (Paramus, New Jersey: Prentice Hall, 1998).

References

2. This paper does not consider the particular problems facing the physically disabled witness and issues surrounding facilitated communication. See Temkin, J ‘Disability, Child Abuse and Criminal Justice’ (1994) MLR 402.CrossRefGoogle Scholar

3. See Eades, D Language in Evidence (Sydney: University of New South Wales Press, 1995).Google Scholar

4. See Walker, A G Handbook on Questioning Children: A Linguistic Perspective, (Washington: American Bar Association, 1994)Google Scholar; A G Walker ‘Questioning Young Children in Court: A Linguistic Case Study’ (1993) 17 Law and Human Behaviour 59-81. Walker's linguistic analysis of courtroom transcripts revealed three areas of difficulty when lawyers question children: age-inappropriate vocabulary; complex syntactic constructions; and general ambiguity.

5. See Davies, G and Noon, E An Evaluation of the Live Link for Child Witnesses (London: Home Office, 1991)Google Scholar. In a 1994 study, Davies et al found that 17% of defence barristers consistently used language which was inappropriate to the age of the child: Davies, G, Wilson, C, Mitchell, R A and Milsom, J Videotaping Children's Evidence: An Evaluation (London: Home Office, 1995)Google Scholar.

6. Murray, K Live television link: An evaluation of its use by child witnesses in Scottish criminal trials (Edinburgh: The Scottish Office, 1995)Google Scholar. See also Flin, R, Bull, R, Boon, J and Knox, A ‘Child Witnesses in Scottish Criminal Trials’ (1993) 21 Rev of Victimology 319–339.Google Scholar

7. The study was based upon 26 transcripts of criminal trials in New South Wales. Brennan, M and Brennan, R E Strange Language - Child Victims under Cross-examination (Wagga Wagga, NSW: Riverina Murray Institute of Higher Education, 1988)Google Scholar. See also M Brennan ‘The Battle for Credibility - Themes in the Cross-examination of Child Victim Witnesses’ (1994) VIII J Semiotics of Law 19 at 51–73, M Brennan ‘The discourse of denial: Cross-examining child victim witnesses’ (1995) 23 J Pragmatics 71–91.

8. Example: ‘Q. And did your mother ever say to you that if somebody asks you the questions I am asking you, you should say that we didn't say what was going to be said?’ (transcript: 10 years). Ibid at 67. Multifaceted questions containing a number of propositions are problematic as they make no provision for the child witness who may quite conceivably agree with some of the propositions contained in any one question and emphatically disagree with others.

9. ‘Nominalisation refers to the language process where an action is objectified so that neither the agent nor the recipient are mentioned. There is a great deal lost in the translation.’ Ibid at 65.

10. ‘Embeddings themselves increase the stress on the respondent in court. If the child witness is confronted with questions containing a number of embedded pieces of information it is likely that comprehension will decrease and deteriorate as the number of embeddings increase.’ Ibid at 76.

11. Example: ‘Q. And do you remember another occasion your father, or your stepfather, asked if you were playing sport, did you not say no?’ Ibid at 64.

12. Ibid at 4. As one child interviewed by the Brennans explained ‘Some of the words they use, the long words that they might use and they might not even know the meaning of. And yet they sit there and they don't tell you and they expect you to answer.’ (15-year-old male witness) at 59.

13. See D Carson ‘Regulating the examination of children’ (1995) 4(1) Expert Evidence at 2–9; N W Perry, B D McAuliff, P Tam, L Claycomb, C Dostal and C Flanagan ‘When Lawyers Question Children Is Justice Served?’ (1995) 19 L & Human Behaviour at 609.

14. Myers et al claim that many technical legal terms are lost on young children: words such as allegation, minor, competent, hearsay, charges, defendant and jury: J Myers, K Saywitz and G Goodman ‘Psychological Research on Children as Witnesses: Practical Implications for Forensic Interviews and Courtroom Testimony and Courtroom Testimony’ (1996) 28 Pacific LJ at 54. See Saywitz, K ‘Children's Conceptions of the Legal System: Court is a Place to Play Basketball’ in Ceci, S J, Ross, D F and Toglia, M P (eds) Perspectives on Children's Testimony (New York: Springer-Verlag, 1989).Google Scholar

15. H Westcott ‘Children's experiences of being examined and cross-examined: The opportunity to be heard?’ (1995) 4(1) Expert Evidence 13-19 at 14. See also V Kranat and H Westcott ‘Under tire: Lawyers questioning children in criminal courts’ (1994) 3(1) Expert Evidence 16–24.

16. See K Saywitz, L Synder and R Nathanson ‘Facilitating the communicative competence of the child witness’ (1999) 3(1) Applied Developmental Science 58–68.

17. C A Carter, B L Bottoms and M Levine ‘Linguistic and Socioemotional Influences on the Accuracy of Children's Reports’ (1996) 20 L & Human Behaviour 3 at 350.

18. Gudjonsson, G H ‘Testimony from persons with mental disorder’ in Heaton-Armstrong, A, Shepherd, E and Wolchover, D (eds) Analysing Witness Testimony (London: Blackstone, 1999) p 70.Google Scholar

19. See H Dent ‘An experimental study of the effectiveness of different techniques of questioning mentally handicapped witnesses’ (1986) 25 Br J Clin Psychology 13-17; K Ericson, N Perlman and B Isaacs ‘Witness competency, communication issues and people with developmental disabilities’ (1994) 22 Developmental Disabilities Bulletin 101-109; Milne, R and Bull, R, Investigative Interviewing Psychology and Practice (Chichester: Wiley, 1999) p 119 Google Scholar. The Law Reform Commission of New South Wales conducted a five-year inquiry into the treatment of people with an intellectual disability in the criminal justice system and concluded that questions containing many concepts and double negatives, as well as questions which were leading, lengthy, or spoken rapidly, cause learning-disabled witnesses particular difficulties. Law Reform Commission NSW, Report 80 People with an Intellectual Disability and the Criminal Justice System (Sydney: Law Reform Commission NSW, 1996).

20. Sanders, A, Creaton, J, Bird, S and Weber, L Victims with Learning Disabilities Negotiating the Criminal Justice System (Oxford: Centre for Criminological Research, University of Oxford, 1997) p 75 Google Scholar. See also Sanders, A, Creaton, J, Bird, S and Weber, L Witnesses with Learning Disabilities Home Office Research Findings No 44 (London: HMSO, 1996)Google Scholar. The use of complex syntax and vocabulary can of course create difficulties for the ‘average’ adult witness. In a study conducted by Kebbell and Johnson the impact of ‘confusing questions’, such as those containing double negatives and leading, multiple questions, on ‘ordinary’ adult participant-witness accuracy was examined. Thirty-eight participants viewed a five-minute videotaped film depicting the physical assault of a woman and were individually questioned about the incident one week later. Half the participants were asked for information using 56 confusing questions; the remaining half were asked for the same information using simply phrased equivalents. Analysis showed that questions were answered significantly more accurately in the simplified condition that the confusing condition. While acknowledging the limited generalisability of their findings, the researchers express the view that evidence distorted by lawyers' questions might well result in miscarriages of justice: M Kebbell and D Johnson ‘Lawyers’ Questioning: The Effects of Confusing Questions on Witness Confidence and Accuracy' (2000) 24(6) L & Human Behaviour 629–641. See previous experiment conducted by Perry et al using children: N W Perry, B D McAuliff, P Tam, L Claycomb, C Dostal and C Flanagan ‘When Lawyers Question Children Is Justice Served?’ (1995) 19 L & Human Behaviour 609–629.

21. MENCAP has called for awareness training for all barristers on learning disability following a survey of 49 barristers which found that 96% had not received initial training on learning disability and that only 8% of barristers had received such training since qualifying at the Bar. MENCAP Barriers to Justice: A MENCAP study into how the Criminal Justice System treats people with learning disabilities (London: MENCAP, 1997) p 9.

22. MENCAP has also recently expressed concern that the use of complex legal terms causes many people with learning disabilities to become confused and anxious in court: ibid, p 8.

23. Y Maley and R Fahey ‘Presenting the Evidence: Constructions of Reality in Court’ (1991) IV/10 IJ SL 3 at 7.

24. Levy, for example, informs aspiring advocates that if there is only one commandment for cross-examination it should be ‘Thou shalt control the witness’: Levy, E Examination of witnesses in Criminal Cases (Canada: Thompson Professional Publishing, 1991) p 203.Google Scholar

25. Stone, M Cross-examination in Criminal Trials (London: Butterworths, 1995) p 309.Google Scholar

26. See Munkman, J H The Technique of Advocacy (London: Sweet & Maxwell, 1986)Google Scholar; Evans, K Golden Rules of Advocacy (London: Blackstone, 1993) p 76 Google Scholar.

27. See Evans, n 26 above, at 108.

28. See Spencer, J and Flin, R The Evidence of Children The Law and the Psychology (London: Blackstone, 1993) p 271.Google Scholar

29. ‘Acquiescence’ refers to a tendency of people, when in doubt, to answer questions in the affirmative irrespective of content. See I C H Clare and G H Gudjonsson ‘Interrogative suggestibility, confabulation, and acquiescence in people with mild learning disabilities (mental handicap): Implications for reliability during police interrogations’ (1993) 32 Br J Clin Psychology 295–301.

30. C K Siegel, E C Budd, C L Spanhel and C J Schroenrock ‘Asking questions of retarded persons: A comparison of yes-no and either/or formats’ (1981) Applied Research in Mental Retardation 347-357. See A Mortimer and E Shepherd ‘The Frailty of Children's Testimony’ in Heaton-Armstrong, Shepherd and Wolchover, n 18 above, pp 46–59.

31. M Kebbell and C Hatton ‘People with retardation as witnesses in court: a review’ (1999) 37(3) Mental Retardation 180. See also H Dent ‘An experimental study of the effectiveness of different techniques of interviewing mentally handicapped child witnesses’ (1986) 24 J Clin Psychology 13–17.

32. ‘They are often compliant and find difficulty in putting forward their own views, particularly if they feel intimidated or confused by repetitive or hectoring questioning or by the surroundings in which they are asked. Instead, they will try and provide answers which they think will please others.’ VOICE Competent to tell the truth (Derby: Voice UK, 1998) p 27. According to Perlman et al, ‘Given that [developmentally handicapped] individuals often have multiple workers in positions of authority over them and are frequently subject to training programs designed to enhance their compliance to the expectations of authority figures, it is not surprising that they are susceptible to suggestibility by perceived authority figures’ . N Perlman, K Ericson, V Esses and B Isaacs ‘The Developmentally Handicapped Witness: Competence as a Function of Question Format’ (1994) 18(2) L & Human Behaviour 186.

33. Milne, R Bull, R Investigative interviewing: psychology and practice (Chichester: Wiley, 1999) p 102 Google Scholar. See also R Bull ‘Questioning Approach’ (1999) SJ at 706.

34. Mortimer and Shepherd, n 30 above, p 48; Bull, R ‘Interviewing Children in Legal Contexts’ in Bull, R and Carson, D (eds), Handbook of Psychology in Legal Contexts (Chichester: Wiley, 1995) p 242.Google Scholar

35. See R Bull ‘Interviewing People with Communicative Disabilities’ in R Bull and D Carson, n 34 above, p 247; C Peterson, C Dowden and J Tobin, ‘Interviewing preschoolers: comparisons of yes/no and wh-questions’ (1999) 23(5) L & Human Behaviour 539–555.

36. ‘The leading questions should be framed to elicit a continuing series of ‘yes’ or ‘no’ answers as much as possible.’ Levy, n 24 above, p 203.

37. The importance of question form in achieving linguistic dominance has been demonstrated in numerous studies. See Atkinson, J and Drew, P Order in Court (London: Macmillan, 1979)CrossRefGoogle Scholar; Matoesian, G Reproducing Rape (Cambridge: Polity Press, 1993)Google Scholar; B Danet and B Bogoch ‘Fixed Fight or Free for All? An Empirical Study of Combativeness in the Adversary System of Justice’ (1980) 7 Br J L & Society at 36; O'Barr, W M Language, power and strategy in the courtroom (New York: Academic Press, 1982)Google Scholar.

38. D McBarnett ‘Victim in the Witness Box - Confronting Victimology's Stereotype’ (1983) 7 Contemporary Crises at 299.

39. Brennan and Brennan, n 7 above, p 59.

40. See J Temkin ‘Prosecuting and defending rape: perspectives from the Bar’ (2000) 27(2) J L & Society 219–248 at 229. In the same study some barristers pointed the finger at some of their older male colleagues while denying that they themselves ever practised harassment: ‘I'm afraid it tends to be male banisters of advanced middle age. They can be very unpleasant.’

41. Sanders, n 20 above, p 76. As one witness interviewed by Sanders et al explained: ‘I found it difficult… not asking me straight out, and asking the same things again and again. It made it difficult because they didn't seem to believe what we were saying. It was a nasty voice… that he used when talking to me.’

42. O'Grady, C Child Witnesses and Jury Trials: An Evaluation of the Use of Closed Circuit Television and removable Screens in Western Australia (Perth: Western Australia Ministry of Justice, 1996) p 82.Google Scholar

43. Ibid, p vi Specific comments from 11-year-old witnesses included: ‘It was very unfair… She kept saying the same question over and over.’‘She was very unfair because she was trying to trick me.’‘He tried to make me look stupid.’‘He treated me like dirt.’

44. Researchers have been particularly critical of the practice of repeatedly putting it to a child witness that he or she is lying. See Westcott, n 15 above, at 14. In one case studied by the Brennans the cross-examiner asked a child witness, aged seven years, 121 questions about her propensity to make up stories: Brennan and Brennan, n 7 above, p87.

45. Rapid-fire questioning is, according to Levy, a legitimate technique that denies an untruthful witness the time to fabricate proper answers. Levy, n 24 above, p 227.

46. This ‘skip-around’ technique is a recognised cross-examination tactic which may be found in advocacy texts, where it is presented as a method which may be legitimately employed to confuse a dishonest witness. Levy, for example, recommends the use of the ‘skip around’ technique when questioning a child witness who counsel suspects to have memorised his or her testimony: ibid, p 235.

47. Weinreb, L L The Denial of Justice (London: Free Press, 1977) p 102 Google Scholar. According to Levy, catching a witness in a contradiction on what may be a minor point is a useful way of throwing a witness off balance and gaining an early advantage with a jury: n 24 above, p 218.

48. Some studies, in fact, suggest that a witness's memory for peripheral detail may be inversely related to memory for more central information. See G Goodman and V Helgeson ‘Child Sexual Assault: Children's Memory and the Law’ (1985) 40 Miami LR 181 at 189.

49. See M Kebbell and C Hatton ‘People with retardation as witnesses in court: a review’ (1999) 37(3) Mental Retardation 179 at 184.

50. Wigmore, J H A Treatise on the Anglo-American System of Evidence in Trials at Common Law (Boston: Little Brown, 3rd edn, 1940) vol 5.Google Scholar

51. C A Carter, B L Bottoms and M Levine ‘Linguistic and Socioemotional Influences on the Accuracy of Children's Reports’ (1996) 20(3) L & Human Behaviour 350.

52. Sanders, Creaton, Bird and Weber, n 20 above, p 76. See also J Greenstock and M Pipe ‘Interviewing children about past events: the influence of peer support and misleading questions’ (1996) 20(1) Child Abuse and Neglect 69 at 78.

53. The sheer volume of questions can also present problems. In one case studied by the Brennans the cross-examiner asked an 11-year-old witness over 530 questions in one day: Brennan and Brennan, n 7 above, p 87.

54. See Tully, B and Cahill, D Police interviewing of the mentally handicapped: an experimental study (London: The Police Federation, 1984)Google Scholar.

55. Home Office Speaking Up For Justice: Report of the Interdepartmental Working Group on the treatment of Vulnerable or Intimidated Witnesses in the Criminal Justice System (London: Home Office, 1998) p 57.

56. The use of intermediaries was first proposed in 1989 by the Pigot Committee, which recommended that the court should have discretion to order exceptionally that questions advocates wish to put to a child witness should be relayed through a person approved by the court who enjoys the child's confidence, such as a child psychiatrist or social worker. Preventing the loss of potentially crucial evidence was the primary perceived advantage of the scheme. Home office, Report of the Advisory Group on Video Evidence (London: Home Office, 1989) para 2.32.

57. The government aims to introduce this in the Crown Court by Autumn 2001. See Home Office Action For Justice: Implementing the Speaking Up for Justice Report (London: Home Office, 1999).

58. Use of an intermediary is not available to defendants. This is unfortunate as defendants with communication difficulties may be equally disadvantaged by the use of developmentally inappropriate language in the courtroom. An inarticulate defendant who is fearful of testifying must set the risks of a poor performance in the witness box against the risk of adverse inferences being drawn from his failure to give evidence. This position may well have to change, if only in the case of child defendants, following the ruling of the European Court of Human Rights rulings in T v UK and V v UK (2000) Crim LR 187. The Court stated that: ‘… it is essential that a child charged with an offence is dealt with in a manner which takes full account of his age, level of maturity and intellectual and emotional capacities, and that steps are taken to promote his ability to understand and participate in the proceedings.’ The rulings prompted the Lord Chief Justice to issue a Practice Direction stating that, as far as practicable, a criminal trial should be conducted in language which a young child can understand. This amounts to inadequate protection: Practice Direction by the Lord Chief Justice of England and Wales, Trial of Children and Young Persons in the Crown Court (London: HMSO, 2000). See also The United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules) adopted by the General assembly of the United Nations in 1985 and The European Convention on the Rights of the Child adopted by the General Assembly in 1989, art 40, The International Covenant on Civil and Political Rights, GA Resolution 2200A (XXI) 1966, art 14.

59. The use of an intermediary is not an entirely new measure. Evidence of videotaped interview between a social worker and a disabled witness with severe speech difficulties was, for example, received in Duffy (1999) 1 Cr App R 307.

60. Section 29(3)(a).

61. Section 29(3)(b). Where intermediaries are used at a very early stage of an investigation or proceedings, and subsequently an application is made for a video recording of an interview in which they were involved to be admitted as evidence, that direction can be given despite the judge and legal representatives not having been present. But the intermediary who was involved must still gain the court's approval retrospectively before the recording can be admitted. See Home Office, Explanatory Notes to Youth Justice and Criminal Evidence Act (London: Home Office, 1999).

62. Section 29(5).

63. Section 29(7)

64. The Home Office is currently in the process of developing guidance.

65. Section 170A was inserted by s 3 of the Criminal Law Amendment Act 1991 and came into operation on 30 July 1993. The provision is based on recommendations of the South African Law Commission. See Report of the South African Law Commission: The Protection of the Child Witness Project 71 (Pretoria: South Afrian Law Commission, 1991).

66. Section 170(2)(b). In contrast to s 29, eligibility under the South African legislation is dependent upon a finding that a witness under the age of 18 years would be exposed to ‘undue’ mental stress of suffering if required to testify in court. Where an intermediary is appointed, no examination or cross-examination of a witness, except examination by the court, may take place in any manner other than through the intermediary. The child witness is placed in another room and does not hear the original questions as put by the prosecutor or defence counsel; he or she only hears the prosecutor's or defence counsel's question as relayed by the intermediary to the witness, either in its original or amended form.

67. Klink v Regional Court Magistrate NO and ors (1996) 1 All SA 191 (SE). The success of the intermediary system in South Africa has yet to be authoritatively evaluated.

68. S Van der Merwe ‘Cross-Examination of the (Sexually Abused) Child Witness in a Constitutionalized Adversarial Trial System: Is the South African Intermediary the Solution?’ in J F Nijboer and J M Reijntjes (eds) Proceedings of the first World Conference on New Trends in Criminal Investigation and Evidence: The Hague, The Netherlands, 1–5 December 1995/World Conference on New Trends in Criminal Investigation and Evidence (Netherlands: Koninklijke Vermande, 1997) p 240. See also Louw, D and Olivier, P ‘Listening to Children in South Africa’ in Bottoms, B and Goodman, G (eds) International Perspectives on Child Abuse and Children's Testimony (London: Sage, 1996) p 180.Google Scholar

69. Evidence Act 1906 (WA), s 106F(2). New Zealand legislation also currently provides for the limited use of an interpreter or intermediary in cases of sexual violence where the complainant is a child or mentally handicapped person. Section 23E(4) of the Evidence Act 1908 (NZ) provides that where a witness is to give evidence from out of court by closed-circuit television or from behind a screen by audio link, the judge may direct that questions be put to the witness through a person approved by the judge. This provision does not, however, allow the intermediary to rephrase questions or interpret the witness's answer.

70. O'Grady, n 42 above, p 107.

71. See, for example, J Doak ‘Confrontation in the courtroom: shielding vulnerable witnesses from the adversarial showdown’ (2000) 33) J Civil Liberties 296 at 317.

72. Kostovski v The Netherlands, 20 November 1989, Series A, No 166.

73. Spencer, J R ‘The Memorandum: an international perspective’ in Westcott, H and Jones, J (eds) Perspectives on the Memorandum. Policy, Practice and Research in Investigative Interviewing (Aldershot: Arena, 1997) p 105 Google Scholar

74. Klink v Regional Court Magistrate NO and Ors (1996) (1) SACR 434.

75. Stefaans (1999) (1) SACR 182.

76. See D Birch ‘A Better Deal for Vulnerable Witnesses?’ (2000) Crim LR at 231.

77. The explanatory notes accompanying the Act add that the intermediary will usually be a specialist who, through training or, perhaps, through unique knowledge of the witness, can help a witness who has difficulty understanding questions or framing evidence coherently to communicate. An inter-departmental steering group has been set the task of drawing up proper guidelines setting out the intermediary's appropriate qualifications and training.

78. Minister of State, Paul Boateng, House of Commons Standing Committee E, 22 June 1999.

79. Procedures facilitating effective liaison between an appointed intermediary and those with experience of communicating with an individual witness will also be required. See P Bates ‘The Youth Justice and Criminal Evidence Act - the evidence of children and vulnerable adults’ (1999) 11(3) Child & Fam L Q 289–303.

80. See LCH Hoyano ‘Variations on a theme by Pigot: Special Measures directions for child witnesses’ (2000) Crim LR 250; J McEwan ‘In defence of vulnerable witnesses: The Youth Justice and Criminal Evidence Act 1999’ (2000) 4 E & P 29. The unavailability of suitably qualified intermediaries has, according to reports, proved a problem in both Western Australia and South Africa.

81. For criticism of the limited latitude afforded bilingual interpreters in criminal proceedings, see H Mikkelson ‘Towards a Redefinition of the Role of the Court Interpreter’ (1998) 3(1) Interpreting 21–45; R Morris ‘The gum syndrome: predicaments in court interpreting’ (1999) 6(1) Forensic Linguistics 8; R Morris, ‘The Interlingual Interpreter-Cypher or Intelligent Participant?’ (1993) VI(18) IJ Semiotics L at 291.

82. House of Commons Standing Committee E, 22 June 1999.

83. L Ellison ‘Cross-examination in Rape Trials’ (1998) Crim LR 605.

84. See M Damaska ‘Evidentiary Barriers to Conviction and Two Models of Criminal Procedure: A Comparative Study’ (1973) 121 U Pa LR 563.

85. Jones v National Coal Board: Jones v National Coal Board (1957) 2 QB 55 at 63. This was a civil case, but is generally accepted to apply to criminal proceedings.

86. McEwan, J Evidence and the Adversarial Process (Oxford: Hart, 1998) p 13.Google Scholar

87. Cain (1936) 25 Cr App R 204.

88. It is the quality and not the quantity of interventions that is significant. In Matthews, where the trial judge put 524 questions to counsel's 538, the Court of Appeal stated: ‘On any basis the number of interventions and questions asked by this judge were extremely great, and seemed to be more than ought to have been necessary for him to fulfil his functions in supervising the conduct of the trial. However, it appeared that he did not commit the cardinal offence of diverting counsel from the line of the topic of his questions into other channels. In spite of the exceptional number of interventions there was no ground for thinking that the convictions were unsafe.’ (1983) 78 Cr App Rep 23.

89. Gunning (1980) Crim LR 592. See also Perks (1973) Crim LR 388: Hirock and Ors (1970) I QB 67; Hamilton (1969) Crim LR 486.

90. See also Whybrow (1994) Times, 14 February.

91. ‘It is always open to the judge to probe, but the tradition is strong that he is an arbiter and not an inquisitor and that the coming to the aid of a party in distress might impair his impartiality.’ Devlin, P The Judge (Oxford: Oxford University Press, 1979) p 62.Google Scholar

92. M Pinard ‘Limitations on judicial activism in criminal trials’ (2000) 33 Connecticut LR 243 at 285. See also S Saltzburg ‘The unnecessarily expanding role of the American trial judge’ (1978) 64 Vir LR 1.

93. Sharp (1994) 98 Cr App R 144.

94. A judge interviewed by Jackson and Doran is quoted as stating: ‘You have to be very careful because I just don't know what your duties are exactly. If you have a Crown witness who's confused and making a mess of the Crown case because they're upset, emotional, whatever it may be, should you straighten them out or should you let the defence have the benefit of this? If you straighten it out, you're undoubtedly aiding the Crown case, you're taking sides, you're giving the Crown as advantage, and you're being seen to take sides.’ Jackson, J and Doran, S Judge Without Jury, Diplock Trials in the Adversary System (Oxford: Clarendon Press, 1995) p 71.Google Scholar

95. M Frankel ‘The Search for Truth: An Umpireal View’ (1975) 123 U Pa LR 1024at 1042. As Frankel notes, ‘[t]he ignorance and unpreparedness of the judge are intended axioms of the system’.

96. It is also likely that many judges, having risen from the lawyer ranks, are sympathetically disposed towards a conception of defence advocacy which rails against the pulling of punches. According to Sedley LJ, too many judges still subscribe to a gladiatorial view of cross-examination, inherited from their time at the Bar, according to which ‘you let the parties take off their gloves and see who is left dead on the floor at the end of the trial’: Stephen Sedley LJ, Court of Appeal judge, speaking at Women Lawyer conference, May 1999; ‘Judge attacks trial by combat in rape cases’ (1999) The Times, 17 May.

97. Evidence Act 1995 (Cth), s 42(2)(d).

98. Evidence Act 1995 (NSW) 41 (1). Section 42 provides that the court may also disallow a leading question in cross examination, or tell the witness not to answer it, if satisfied that the relevant facts would be better ascertained if leading questions were not used.

99. Queensland Law Reform Commission The Receipt of Evidence by Queensland Courts: The Evidence of Children Report No 55 Part 1 (2000) pp 1–8.

100. This is based on s 21B of the Evidence Act 1939 (Northern Territory), which applies to children under the age of 16 years and provides that a judge may disallow questions which are ‘confusing, misleading or phrased in inappropriate language’, having regard to the child's age, culture and level of understanding' . See Law Commission (New Zealand) Evidence Report 55 – Volume One Reform of the Law (1999).

101. Section 85(2).

102. See Law Reform Commission Of Western Australia, Review of the Criminal and Civil Justice System Final Report (1999) ch 21.

103. Davis, G, Hoyano, L, Keenan, C, Maitland, L and Morgan, R An Assessment of the Admissibility and Sufficiency of Evidence in Child Abuse Prosecutions (London: Home Office, 1999) p 61.Google Scholar

104. A Sanders et al n 20 above, p 78. Judges have, of course, been strongly criticised for their failure to protect complainants in rape trials from overly aggressive and intrusive defence questioning. See Lees, S Carnal Knowledge Rape on Trial (London: Hamish Hamilton, 1996).Google Scholar

105. See Wong Kam-ming v R (1980) AC 247 at 260; Mechanical and General Inventions Co Ltd, and Lehwess v Austin and Austin Motor Co Ltd (1935) AC 346; Kalia (1975) Crim LR 181.

106. The South African Law Commission has acknowledged this conflict: ‘The presiding officer may limit or prohibit offensive, humiliating, misleading or tormenting cross-examination. In practice, however, the problem remains that the dividing line between this kind of cross-examination and admissible sharp and aggressive cross-examination is sometimes very vague and presiding officers are extremely cautious not to cross this line. If the limit is indeed exceeded this may well lead to nullification of the whole matter. Such a result is extremely undesirable.’ Above n 65, para 2.10

107. See, eg, Office of Women's Policy, Department of Equity and Fair Trading (Qld) Report of the Taskforce on Women and the Criminal (Brisbane: Office of Women's Policy, 2000) pp 314–315.

108. Similar calls have been made in the United States. See generally, P Haines ‘Restraining the overly zealous advocate: time for judicial intervention’ (1990) 65 Ind LJ 445 at 462; G Van Kessel ‘Adversary Excesses in the American Criminal Trial’ (1992) 67 Notre Dame LR 403-551.

109. Home Office Royal Commission on Criminal Justice Report (London: HMSO, 1993) para 182.

110. Brown (Milton) (1998) 2 Cr App R 364.

111. See J Jackson ‘Judicial Responsibility in Criminal Proceedings’ (1996) 49(2) CLP 59–95.

112. E Yaroshefsky ‘Balancing Victim's Rights and Vigorous Advocacy for the Defendant’ (1989) Annual Survey of American Law at 152. In the United States, a number of states have adopted proscriptive rules aimed of reducing reliance on misleading race and gender stereotypes in the courtroom. Eg, the Massachusetts Canons of Ethics and Disciplinary Rules states that ‘a lawyer shall not… Engage in conduct manifesting bias or prejudice based on race, sex, religion, national origin, disability, age, or sexual orientation against a party, witness, counsel or other person.’ See E Nilsen ‘Criminal defense lawyer's reliance on bias and prejudice’ (1994) 8 Geo J Legal Ethics 1.

113. General Council of the Bar of England and Wales Code of Conduct of the Bur of England and Wales (London: Bar Council, 1991) Pt VI, para 610 (e); Archbold Pleadings, Evidence and Practice in Criminal Cases (London: Sweet & Maxwell, 1997) Appendix B-21.

114. J Temkin, n 40 above, at 246.

115. As Blake and Ashworth note, codes can be neutralised or circumvented when they conflict with a strong culture: M Blake and A Ashworth ‘Some Ethical Issues in Prosecuting and Defending Criminal Cases’ (1998) Crim LR 16 at 32.

116. D Luban ‘Partisanship, Betrayal and Autonomy in the Lawyer-Client Relationship: A Reply to Stephen Ellman’ (1990) 90 Col LR 1027.

117. The statement was made in response to criticisms of his threats to defend the Queen by revealing King George IV s adultery and secret marriage to a Catholic. Trial of Queen Caroline 8 (1821) per Lord Brougham cited in Cairns, D Advocacy and the Making of the Adversarial Criminal trial 1800-1865 (Oxford: OUP, 1998) p 139 Google Scholar.

118. Monroe Freedman is arguably the leading exponent of this position. See Freedman, M Lawyers' Ethics in an Adversary System (Indianapolis: Bobbs-Merrill, 1975) pp 43–49 Google Scholar. See also A Smith ‘Defending defending: the case for unmitigated zeal on behalf of people who do terrible things’ (2000) 28 Hofstra LR 925; G Uelman ‘Lord Brougham's bromide: good lawyers as bad citizens’ (1996) 30 Loyola of Los Angeles LR 119.

119. Pannick, D Advocates (Oxford: OUP, 1992) p 105.Google Scholar

120. Rock, P The Social World of the English Crown Court (Oxford: Clarendon Press, 1993) p 174.Google Scholar

121. Ibid. A further motivating factor is, of course, the need to impress a solicitor or her clerk by putting up a stubborn fight on behalf of a client.

122. J Temkin, n 40 above, at 230.

123. Ibid.

124. J Temkin ‘Rape in Court’ (1998) Guardian, 27 October.

125. For a critical evaluation of the standard conception of the defence lawyer's role, see Blake and Ash worth, n 115 above. For an American perspective see A Alschuler, ‘How to win the trial of the century: the ethics of Lord Brougham and the O. J. Simpson defense team’ (1998) 29 McGeorge LR 291; E Nilsen, ‘Criminal defense lawyer's reliance on bias and prejudice’ (1994) 8 Geo J Legal Ethics I; W Simon ‘The ethics of criminal defense’ (1993)91 Mich LR 1703; E Suni ‘Who stole the cookie from the cookie jar?: The law and ethics of shifting blame in criminal cases’ (2000) 68 Fordham LR 1643; L Vogelman ‘The big black man syndrome: the Rodney King trial and the use of racial stereotypes in the courtroom’ (1993) 20 Fordham Urban LJ 571.

126. Taslitz, A Rape and the Culture of the Courtroom (New York University Press, 1999) p 118.Google Scholar

127. According to Barrett, ‘the assumptions of the adversary permit, nay rather demand, that the defendant's advocate use every skill he has in cross-examining the State's witnesses to test the accuracy of their testimonial evidence’ . E Barrett ‘The Adversary System and the Ethics of Advocacy’ (1962) 37 Notre Dame Lawyer 481 at 487. See also Frank, J Courts on Trial: Myth and Reality in American Justice (Antheneum: Massachusetts, 1963) p 85 Google Scholar; J D Jackson ‘Law's Truth, Lay Truth and Lawyer's Truth: The Representation of Evidence in Adversary Trials’ (1992) 3 Law and Critique 29.

128. The most radical approach to the difficulties experienced by child witnesses in criminal proceedings perhaps is to be found in Israel. Here, the Law of Evidence Revision (Protection of Children) Law transferred responsibility for investigating juvenile sex crimes from the police to ‘youth investigators’ . The law delegated to youth investigators the sole authority to interview all alleged victims, witnesses and suspects under 15 years old. See E Harnon ‘Children's Evidence in the Israeli Criminal Justice System with Special Emphasis on Sexual Offences’ in J R Spencer, G Nicholson, R Flin and R Bull (eds) Children's Evidence in Legal Proceedings: An International Perspective (1989) p 81, E Harnon ‘Examination of Children in Sexual Offences - The Israeli Law and Practice’ (1988) Crim LR 269; Sternberg, K, Lamb, M and Hershkowitz, I, ‘Child Sexual Abuse Investigations in Israel: Evaluating Innovative Practices’ in Bottoms, B and Goodman, G (eds) International Perspectives on Child Abuse and Children's Testimony (London: Sage, 1996) p 7 Google Scholar.

129. It should be noted that judges themselves sometimes engage in questioning that would be termed by many as inappropriate. See Sanders Creaton, Bird and Weber, n 20 above.

130. J McEwan ‘Child Evidence: More Proposals for Reform’ (1988) Crim LR 813 at 821.

131. Attention has so far focused on the rise of ‘managerial judging’ in civil proceedings.

132. The extent to which legal cultures are converging thereby reducing barriers to successful transplantation of ‘alien’ procedural elements is a matter of debate. See O Chase, ‘Legal Process and National Culture’ (1997) 5 Cardozo JI & Comp L 1–23; J Jackson ‘Playing the Culture Card in Resisting Cross-Jurisdictional Transplants’ (1997) 5 Cardozo JI & Comp L 51–67.

133. W Pizzi ‘Crime Victims in German Courtrooms: A Comparative Perspective on American Problems’ (1996) 32 Stan JIL 37–64.

134. J Reiz ‘Why we probably cannot adopt the German advantage in civil procedure’ (1990) 75 Iowa LR 987 at 996.

135. Article 39 is also relevant stating that: ‘States parties shall take all appropriate measures to promote physical and psychological recovery and social reintegration of a child victim of any form of neglect, exploitation, or abuse.’

136. Proclaimed by General Assembly Resolution 3447 (XXX) of 9 December 1975. The European Court of Human Rights has also acknowledged in recent years that witnesses have rights which must, in line with principles of fairness, be considered along side those of defendants: Doorson v The Netherlands (1996) 22 EHRR 330; Van Mechelen v The Netherlands (1997) 25 EHRR 547.