ABSTRACT
Witness examination is an essential principle of the adversarial legal system. Through examining witnesses, the prosecution and the defence present their versions of events to the judge and jury. While it is expected that witnesses are prepared for examinationin-chief, cross-examination proceeds in a hostile atmosphere and is feared by witnesses, as it is an intimidating experience. It is also feared by novice barristers, as the success of the case can depend on their cross-examination skills. What is more important, though, is that the principle of cross-examination can easily turn into a tool for distorting the truth instead of revealing it (Riding 1999: 415-18). Facts speak for themselves: the main aim of a cross-examiner is to discredit the testimonies of witnesses by casting doubt on their credibility or their presentation of events (Gibbons 2003: 112). This is achieved by controlling witnesses through coercive questioning. Linguistic research on witness examination and particularly cross-examination aims to
minimize the injustices and alert legal professionals to problematic practices. Forensic linguists, together with psychologists, anthropologists and legal professionals, have gradually contributed to several changes in legitimate cross-examination tactics and examination proceedings in general. Studies on rape trials, for instance, have contributed to the fact that lawyers cannot any longer subject rape witnesses to questioning on their sexual history without a serious reason, as this was found to be an unfair pragmatic cross-examination strategy (Brereton 1997: 251; Gibbons 2003: 231; Ehrlich, this volume). Gibbons (2003: 202-5, 231) reports on how judges change the proceedings (e.g. by using video links to create a better environment for the child, eliminating structurally complex questions, making sure there is no misunderstanding) as they become more aware of problems that children experience in the witness box and Aldridge (this volume) reports recent changes that have taken place for vulnerable witnesses in England and Wales. The first aim of this chapter is to look in detail at the research on cross-examination
questions and strategies. The author then draws on this research in order to bring to light
a topic that has so far been neglected: lay people as cross-examiners. Self-represented litigants (also pro se litigants) have previously been the subject of research just in small claims cases and divorce cases where such litigants present their case before a judge, usually without calling witnesses (Conley and O’Barr 1998; O’Barr and Conley 1990). This chapter focuses on the high-profile libel case McDonald’s Corporation v. Helen Steel and David Morris tried in the Royal Courts of Justice in London from June 1994 until December 1996. Steel and Morris (the defendants) were accused in a writ by McDonalds UK and US
(the plaintiffs) of publishing a leaflet which accused McDonalds of poor practice in relation to six major areas: the link between food and disease (heart disease and cancer); advertising; animal treatment; food poisoning; employment practices; starvation in the Third World; and destruction of the rainforest. In the media, the case became widely referred to as the ‘David and Goliath case’, since the two litigants-in-person, without any previous experience of legal proceedings (Steel and Morris), were facing a top libel lawyer representing McDonald’s (Mr. Rampton QC). In defiance of all the obstacles, the self-represented litigants managed to prepare a strong case against McDonald’s. The outcome of the trial shows that they won several important issues (e.g. they managed to prove that McDonald’s exploits children in their advertisements; offers bad working conditions; advertises deceptive information on the nutritional value of their food) and lost in less important issues (e.g. according to Mr. Justice Bell, Steel and Morris did not bring sufficient evidence that McDonald’s is responsible for the destruction of rainforests; discarding of litter on the streets; firing pro-union workers). This chapter exemplifies in what ways cross-examination performed by the professional
counsel is different from cross-examination performed by the two litigants in person.
