Presupposition under cross-examination

Abstract

“Facts” do not carry their own guarantee of acceptability or “criterion of truth” around with them and they are relevant to judicial proceedings only as extrajudicial antecedents of an overall narrative version and explanation of events. Apart from the story being told, there are two main factors in the verification of the story: the demeanour of individual witnesses, and the plausibility or consistency of the whole narrative as presented to the Court. Lawyers speak of the “quality” of evidence: evidence may be of good or bad quality in the sense of standing up to scrutiny and being convincing, or otherwise. Presupposition is one form of indirectness, a method of verifying facts and credibility by making it a little easier for witnesses to give one answer rather than another so that, if they then reject the easier and choose the more difficult, some additional weight may be attached to the answer chosen. It thus elicits a “better quality” evidence, in the sense of being more likely to convince, more plausible, more persuasive or more coherent. In allowing counsel to present his story, while formally asking questions and thereby respecting the rules of evidence which require witness participation in the story-telling, it seems to test new information somewhat more efficiently than old, by relying more directly on witnesses' perception of what is actually being asked so as to accept or reject it. It is also one method by which evidence may be checked against a witness's earlier testimony or that of another witness in a manner that does not alert him to the immediate or entire purpose of the questioning, thus adding some extra credibility to his evidence if he seems to be in full control of a coherent and consistent (part of the) story. Presupposition, then, has three basic uses in Courtroom questioning: it can help to tell the story, it can introduce new items of information and it can help to test witness credibility. In each case it makes a legitimate, effective and perfectably respectable contribution to the judicial process.