2 Experiences of giving evidence and cross-examination
Cross-examination is ‘a legal term used to describe the process of asking questions to witnesses. Cross-examination can be challenging for witnesses but please remember it is a necessary process to ensure a fair hearing’ (Nursing and Midwifery Council, 2021, p. 13). Cross-examination can go on for several hours and it involves both the legal representative of the regulator (case presenter) and the registrant’s legal representative, asking questions about the witness statement. The panel and the panel’s legal adviser may also ask questions. Questions can be repeated and re-phrased and may result in versions of events proposed that are different to the ones the witness first presented in their statement. Witnesses may also be asked how well they remember what happened and why they believe this to be true. This can be made more difficult by the passage of time, perhaps several years since the events took place.
Being cross-examined can be a challenging process, and the person may feel anxious about it. We found that often it was a surprise to the public witness how challenging it was. They felt that the quality of their evidence was questioned, and so too was their memory, truthfulness and integrity as a witness. Fitness to Practise hearings can often take place many months or years after concerns have been raised. The professional’s legal representative can ask questions that make the witness seem unreliable, for example questioning how well they remember events.
Activity: reflection point
Watch the following animation and take a few minutes to think about why cross-examination might be stressful. Make some notes in the text box below.
Discussion
You probably noted a range of reasons for why cross-examination can be challenging. Our research team found, through observations of hearings, that not being believed or having your character questioned is a form of moral injustice and is also evidenced outside of this research (Fricker, 2007). It is a distressing experience to be misrepresented and challenged in the hearing. It might be proposed during cross-examination that you are not remembering events correctly or that your understanding of what happened is mistaken. This can feel very unfair.
Cross-examination is also challenging because there are often tensions between the perspectives of panel members, witnesses and registrants.
Perspectives include:
The panel
We are the Fitness to Practise panel. Our focus is on protecting the public, establishing if a registrant’s Fitness to Practise is impaired and taking action accordingly. The focus is on the registrants’ actions. Harm is potentially an indicator of misconduct, and can be linked to sanctions.
The witness
I am the witness, my experience encompasses my history of events leading to the hearing (and process of giving information to investigation and hearing). My focus is on the impact of events.
The registrant
I am the registrant, here to defend my case and evidence I am fit to practise.
To prepare for the hearing people may want to know how questions will be asked and the types of things witnesses can ask for to assist them during the cross-examination process. And although regulators do provide information, it is not necessarily being used by witnesses. We found that the General Dental Council (2022) provides some key things to remember about being questioned as a witness (Box 1) and what a witness can do. The panel and legal adviser can control the questioning, and step in if they think it is inappropriate. A witness can also ask them if the question is appropriate and if they must answer it or, if they feel they need one, a break from cross-examination.
Box 1 What the GDC (2022) advise witnesses in their guidance for witnesses
When answering questions, please:
- take your time
- speak clearly and slowly so everyone can hear your evidence and a recording can be made
- ask for a break if you need one.
Other important things to remember when giving evidence:
- Listen carefully to the questions and make sure you understand them before giving your answer.
- If you don’t understand the question, say ‘I don’t understand. Can you ask me that again in a different way?’ If you still don’t understand, it is okay to say ‘I am sorry, but I still don’t understand’.
- If someone asks you two or three questions together, you can ask them to repeat the questions one at a time.
- Don’t try to answer a question if you don’t know the answer or you cannot remember.
- If you’re asked the same question again, this does not mean your first answer was wrong. Just answer the question again.
OpenLearn - Improving patient, family and colleague witnesses’ experiences of Fitness to Practise proceedings
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