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18 Canberra L. Rev. 36 (2021)
Reconceptualising Reforms to Cross-Examination: Extending the Reliability Revolution beyond the Forensic Sciences

handle is hein.journals/canbera18 and id is 42 raw text is: Canberra Law Review (2021) 18(1) RECONCEPTUALISING REFORMS TO CROSS- EXAMINATION: EXTENDING THE RELIABILITY REVOLUTION BEYOND THE FORENSIC SCIENCES Sarah Kendall* Cross-examination, as a central component of the adversarial trial, has long been thought of as a reliable method of revealing whether a witness is lying, mistaken or unreliable. However, in recent years it has increasingly been the subject of criticism, leading to reforms in various Australian states and territories, particularly in relation to vulnerable witnesses (such as children and domestic and family violence survivors). Cross-examination and the forensic sciences are similar in that they both utilise techniques to uncover and assess evidence from the subject - testimony from a witness or scientific findings from physical evidence. Although forensic science methods were presumed reliable for decades, the discipline has recently experienced a 'reliability revolution', with research challenging the reliability of various forensic science techniques. This article examines current empirical research on cross-examination methods and argues that the reliability revolution should now be extended to cross-examination to improve the reliability of testimony elicited from witnesses. I INTRODUCTION Since its inception in the 18th and 19th centuries, modern cross-examination has been thought of as a reliable method of testing a witness' evidence and revealing whether the witness is lying, mistaken or unreliable.1 Recent empirical research indicates, however, that traditional cross- examination techniques may not produce accurate testimony, particularly for so-called 'vulnerable' or 'special' witnesses (such as children, sexual assault victims and those with intellectual disabilities).2 As a result, some Australian states and territories have introduced reforms for vulnerable witnesses, including special measures provisions and guidelines for cross-examining children. However, these reforms do not necessarily address the potential unreliability of cross-examination techniques generally, nor are all reforms based on empirical evidence. Furthermore, there is a dearth of empirical research into some aspects of cross- examination, such as which techniques will actually produce reliable evidence (as opposed to showing that current techniques are unreliable) as well as how other witnesses that could be considered vulnerable (such as domestic and family violence ('DFV') victims) should ideally be questioned in order to elicit the most reliable testimony. In Australia's adversarial legal system where significant weight is placed on oral evidence, it is critical that the methods being used to test that evidence are themselves reliable. The issue of reliability, albeit in the forensic sciences, was brought to the forefront of academic discussions in the late 2000s when the United States' National Research Council ('NRC') released its landmark report, Strengthening Forensic Science in the United States: A Path Forward ('NRC Report'). That report emphasised the need for empirical research to address *PhD Candidate, The University of Queensland Law School 1 Louise Ellison, The Adversarial Process and the Vulnerable Witness (Oxford University Press, 2001) 11. 2 Feminist theory has also long posited that cross-examination is not reliable, based on women's experiences in court: see, eg, Rosemary Hunter and Kathy Mack, 'Exclusion and Silence: Procedure and Evidence' in Ngaire Naffine and Rosemary J Owens (eds), Sexing the Subject of Law (LBC Information Services, 1997) 171, 181. While concerns have also been raised over techniques used in examination-in-chief, this article will focus on cross-examination because of its specific role in the adversarial trial as a method of challenging and testing the witness and his or her testimony.

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