Since 2010 the English Court of Appeal has been engaged in an unprecedented campaign to reform cross-examination practice to reflect empirical research findings on obtaining best evidence from children and vulnerable adult witnesses. It is easy to assume that these cases break away from the conventional theory of cross-examination—carving out a series of exceptions to normal practice. This article reviews the common law rules on cross-examination before 2010 and argues that the new cases are in fact a logical extension of the ordinary rules.
BenthamJ (1827) Rationale of Judicial Evidence. Vol. 2. London: Hunt and Clarke.
3.
CairnsD (1998) Advocacy and the Making of the Adversarial Criminal Trial 1880–1865. Oxford: Clarendon Press.
4.
DareT (2009) Counsel of Rogues? A Defence of the Standard Conception of the Lawyer’s Role. Farnham: Ashgate.
5.
DuffAFarmerLMarshallS. (eds) (2004) The Trial on Trial: Volume 3, Towards a Normative Theory of the Criminal Trial. Portland, OR: Hart.
6.
EllisonL (2001) The Adversarial Trial and the Vulnerable Witness. Oxford: OUP.
7.
EllisonLWheatcroftJ (2010) ‘Could you ask me that in a different way?’ Exploring the impact of courtroom questioning and witness familiarisation on adult witness accuracy. Crim LR823.
8.
EllisonLWheatcroftJ (2012) Evidence in court: Witness preparation and cross-examination style effects on adult witness accuracy. Behavioral Sciences and the Law30(6): 821–840.
9.
HendersonE (2001) Persuading and controlling: Mapping the theory of cross-examination in relation to children. In: WestcottHDaviesGBullR (eds) Children’s Testimony: Psychological Research and Forensic Practice. Chichester: Wiley.
10.
HendersonE (2014) All the proper protections—the Court of Appeal rewrites the rules for the cross-examination of vulnerable witnesses. Crim LR93–108.
11.
HendersonE (2015a) Theoretically speaking: English judges and advocates discuss the changing theory of cross-examination. Criminal Law Rev12: 927.
12.
HendersonE (2015b) Communicative competence? Judges, advocates and intermediaries discuss communication issues in the cross-examination of vulnerable witnesses. Crim LR9: 657.
13.
HendersonE (2015c) Bigger fish to fry: Should the reform of cross-examination be expanded beyond vulnerable witnesses?International Journal of Evidence and Proof19(2): 83–99.
14.
HendersonEHefferCKebbelM (2015) Achieving best evidence? Cross-examination in the English criminal trial. In OxburghGMyklebustTGrantT. (eds) Communication in Forensic Contexts: Integrated Approaches from Psychology, Linguistics and Law Enforcement. Chichester: Wiley.
15.
HirstM (1997) Andrews and Hirst on Criminal Evidence. 3rd ed. London: Sweet and Maxwell.
16.
HoyanoL (2014) What is balanced on the scales of justice? In search of the essence of the right to a fair trial. Crim LR1: 4–29.
LangbeinJ (2003) The Origins of the Adversary Trial. Oxford Studies in Modern Legal History. Oxford: Clarendon Press.
20.
LiningerT (2005) Bearing the cross. Fordham Law Review74(3): 1353–1423.
21.
MahoneyR (2004) Putting the case against the duty to put the case. NZ Law Review313.
22.
PlotnikoffJWoolfsonR (2012) Kicking and screaming: The slow road to best evidence. In: SpencerJLambM (eds) Children and Cross-examination: Time to Change the Rules?Oxford: Hart.
23.
PlotnikoffJWoolfsonR (2015) Intermediaries in the Criminal Justice System. Bristol: Policy Press.
SpencerJR (2005) Introduction. In Del-MartyMSpencerJR (eds) European Criminal Procedures. 2nd ed. Cambridge Studies in International and Comparative Criminal Law. Cambridge: Cambridge University Press.
26.
SpencerJRFlinR (1993) The Evidence of Children. London: Blackstone Press.
27.
SpencerJRLambM (eds) Children and Cross-examination: Time to Change the Rules?Oxford: Hart.
28.
TapperC (1995) Cross and Tapper on Evidence. 8th ed. London: Butterworths.
