Cross-examination: an engine of truth or a man with a goat?

As a student barrister I attended a presentation on cross-examination. The presenter asked 'what is the purpose of cross-examination?' We were being assessed for participation so I uncharacteristically raised my hand and answered 'to elicit the truth.'

The presenter paused, raised a finger and said 'we'll return to you later'. He moved on to other more acceptable answers, leaving me feeling like an amorous farmhand caught with a goat.


I've  always been troubled by that. Uncomfortable with the notion that the purpose of cross-examination, and by extension the trial process, was something other than truth finding. The discomfort hasn't abated even after a couple of hundred trials as prosecutor or defence counsel. Maybe I'm deluded, but even now I still cling to the idea that trial by jury works to achieve justice - mostly anyway. And good cross-examination is integral to the system and helps to uncover truth.

That doesn't mean that you always get what you want: evidence consistent with your case. Cross-examination, even good cross-examination cannot change the evidence. If it fails to deliver the answers you want, then often enough that's because the truth is not what you would have liked it to be. So even then the process uncovers truth.

I am comforted in my views by the words of an American jurist, John Henry Wigmore, who declared 'cross-examination is the greatest legal engine ever invented for the discovery of truth.'

Views will differ. I know Wigmore's statement is not universally true. Cross-Examination, particularly of children and other vulnerable witnesses can lead to confusion in the evidence and clouding of the truth. That is why there are rules of law and practice protecting the interests of such witnesses, and good advocates and astute judges will ensure that cross-examinations are conducted fairly.

You see, counsel owe many duties: to the client, to court, to one's opponent. Overarching them all though, is our duty to the administration of justice. That's the rule. It, along with others, governs barristers' conduct in every Australian state and territory. It is expressed like this: a barrister has an overriding duty to the court to act with independence in the interests of the administration of justice.

So, no one is saying cross-examination is the perfect engine for discovering truth, but properly conducted it is the best that we have.


Next time, a few examples of how good cross-examination looks.