There is a terrible imbalance of power for a witness when being cross-examined in court.

It was said quite off the cuff – it was not part of the formal training materials, which perhaps made it stand out even more. We did not elaborate specifically on why this was, and the training quickly moved on to how, as a witness, this imbalance can be addressed.

This got me thinking: It is very true, and it was instructive to hear it mentioned so clearly and concisely. But it does beg the question – what causes this terrible imbalance of power for a witness when being cross-examined? I think there are several factors that contribute to this.

1. The Setting

A court is a very formal setting: there are coats of arms on walls, the judge sits on a raised bench peering down at the court, the witness sits alone in the witness box to the side of the court with everyone looking at them intently, the proceedings are recorded, and there will often be a stenographer (i.e. a typist) tapping away, transcribing everything the witness says.

Further, if a witness is giving evidence, it is likely a trial, and thus the barristers and judge(s) are robed in somewhat unusual but very imposing outfits with white frilly collars (a jabot). Depending on the court they may also wear white flowing wigs, the type you might see in Georgian England or Napoleonic France.  However, a witness is different – you cannot wear this special outfit.

This setting is foreign to you.  The court room setting is naturally quite intimidating and likely very unlike anything most witnesses are used to. In some ways it is designed to be like this, so people see and respect the authority of the law. But be this as it may, this is just the start of the imbalance of power for witnesses being cross-examined.

2. Court Process and Rules

There are myriads of processes and rules of the court which weigh against a witness.

Most witnesses cannot see the evidence of others before they give their evidence. There are very important reasons for this. In particular, the witness’ evidence must be independent and not influenced by prior evidence. The effect of this is that the witness provides their evidence in a vacuum, unaware of what has happened and what has been said prior to them being called. Psychologically this is very difficult for the witness as they do not know how their evidence will be perceived.

Additionally, there is an unusual way of referring to people in court. The judge is not called by any normal salutation, rather (generally) “Your Honour”, a term that commands respect and deference. The advocates (barristers) are not referred to by their names. There is certainly no first name basis, nor is there the use of “Mr” or “Mrs”, rather, they refer to one another as  “my learned friend”.  Nevertheless, the advocates will tend to refer to you by your name, although, it should be noted, they are not obliged to do so. They can call you by the very impersonal and faintly condescending term “witness”.  That said, they tend not to do this as it is considered somewhat rude by the Court.

Add to this the countless other quirks and oddities in a court. For example, you must bow to the judge when entering or leaving, or when they enter or leave the court. You will be called to give your evidence at the time the court decides, and you will generally be brought into the court by the court officer, rather than someone you know.

3. Training and Experience

Compounding the above, witnesses are at an inherent disadvantage when it comes to the level of training and experience they have in the court and evidential process.

Aside from some witnesses (usually experts) who have lived prior lives as lawyers, witnesses are not legally trained and are generally not experienced in the court process. They will usually be doing this as a one off, for the first time (and often hopefully the last).

Conversely, the advocates cross-examining the witness are legally trained, having (most likely) studied law for many years. They will also have formally trained in the art of cross-examination as part of their bar practice course. They will constantly undertake ongoing continuing professional development on cross-examining witnesses. They will also have many years of experience in appearing in court and cross-examining witnesses – they are professionals, and this is their job that they do on a regularly weekly (and sometimes daily) basis.

All of this puts the witness at a huge disadvantage. There are courses to assist the witness in giving their evidence, and although these do go a long way to bridging this gap, they can only go so far. Irrespective of how detailed and thorough these courses are, they cannot seek to fully make up for the years of formal training and professional experience enjoyed by cross-examining counsel.

4. The Evidential Process

The evidential process is heavily weighted against the witness being cross-examined.

The witness sits by themself in the witness box which is a very lonely place. They take an oath or affirmation to promise to tell the truth – something they are unlikely to ever be required to do otherwise.

Furthermore, the court dialogue is unlike any discussion the witness will be used to. They are not involved in conversation. They cannot ask questions, rather, they can only answer them: it is a  very unnatural way of communicating.

Moreover, the questions asked are not “normal” questions – they will typically be leading questions and closed questions, deliberately designed and structured to control and influence the witness’ responses.

Advocates will also use a number of other strategies and tactics to control the witness’ answers – each of these carefully designed and implemented to seek to extract concessions from the witness and otherwise undermine their evidence.

5. Public Speaking

Finally, and perhaps most obviously, cross-examination involves public speaking, something that very few people like.

But it is more than public speaking – it is speaking to a group of people intently listening to the witness’ every word. There will be a lot of people present: the court staff and legal teams, representatives of the parties, and possibly even members of the public.

The witness is recorded and the questions and answers transcribed. An army of lawyers will pour over their every word looking for inconsistencies and imprecise wording, which will in turn be used against them. The judge too will examine the transcript of the witness’ cross-examination, assessing their credibility and authenticity when making their decision and giving reasons for it.

This is compounded by the circumstances above to make it a very difficult and awkward process for the witness being cross-examined.

Some concluding thoughts

A witness is an essential part of our legal system. Indeed, their evidence forms the very basis for any court decision on a matter of fact, and thus on a case itself.  However, being cross-examined as a witness is a daunting task. It seems like everything about the process is designed to be foreign, unusual, imposing, formal and generally difficult for the witness.

There is a terrible imbalance for the witness when giving their evidence. Is it appropriate?  That is not for me to decide – that is something for the legal and social theorists to consider.  Nevertheless, this imbalance exists. It is very real and something that witnesses should be made aware of before giving their evidence.

There are certain things can be done to rectify it, not wholly and completely by any means, but certainly to some degree. These include independent third-party witness training, thorough witness preparation with the witness’ legal team, and consideration of their evidence by the witness themselves. But perhaps the best thing the witness can do to address this imbalance is to recognise it and accept that it does exist. This will liberate and free the witness from their concerns about it, allowing themselves to deal with it as best as they can, and to deliver their own evidence in their own words as effectively and confidently as they can.

Postscript:  I spoke to one of the witnesses who was in the training where the above quote was mentioned after they subsequently gave evidence. They were very grateful for the training and felt better prepared.  Of course, they still found it stressful and difficult, which is normal, but their understanding of the process, and a recognition of its inherent “unfairness” toward the witness and the imbalance of power between witness and counsel, allowed them to work within this difficult framework to deliver their own evidence as best they could.