To cross-examine or not to cross-examine and the pertinent law of procedure : the role of cross-examination in seeking the attainment of justice

Abstract

Very often, unfortunately, the art of cross-examination is not given the amount of importance it so deserves. Its role in a court case may make the case go in either direction since it strives to challenge, or confirm, the testimonies of witnesses. It can also be argued that cross-examination is as imperative as the position held by a judge. Since cross-examination might be the only possible or last resort to challenging a wrong set of alleged facts, this may be the only chance whereby the judge or magistrate may have the proper opportunity to arrive at a conclusion based on the correct facts of the case - rather than being given no choice but to deduce conclusions on the wrong alleged facts. In a given legal suit, a particular party might know with all certainty that it is their version of facts which is the correct one. However, if a witness gives testimony to a wrong set of facts without any particular intent to do so, or purposely lies or conceals the truth for whatever interest they may have, one of the only possible guarantees to attaining justice is through the cross-examiner. Such counsel will attempt to discredit the credibility of the testimony of the opposing party’s witness, in front of the adjudicator, so that such adjudicator may then, through this, come to the proper conclusion based on the proper facts; i.e. to truly attain justice. It should be noted that the approach herein adopted in this Term Paper is an interdisciplinary approach. An approach which is attempting to rationally consolidate the legal and non-legal realms of cross-examination.