Best evidence or best interests? What does the case law say about the function of criminal cross-examination?

Abstract

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.