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 _unit5.3.1 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.

Transcript
SPEAKER 1: After raising a concern to a regulator about a healthcare or social worker, witnesses give evidence in a fitness to practise hearing. The research team conducted a series of interviews with these witnesses to further understand their experiences. These are direct quotes, although their identities have been changed.
SPEAKER 2: It was a tough time. I think I was still emotionally fragile from what happened and dealing with everything. And then again, like I said, having to speak about it in a public space. Obviously, my worst nightmare anyway, that I had to talk about something so personal and traumatic. It was a lot.
When I got to the hearing, I was a bundle of nerves. But when I was there, I was really put at ease with the caseworker and being led into the room beforehand. So I could understand where I’d be sitting, who would be speaking to me, who else would be in the room, if there was going to be a recording. And that really helped.
SPEAKER 3: It was intimidating, but you have to be strong, and then try to remember things because I didn’t realise I had a memory loss caused by it. They went, how do you know you’ve got memory loss? So they were asking me questions, and I said, I can’t remember. We spent ages on some areas.
I can remember things, what happened, but certain things I can’t remember because my memory is gone. And I thought I was abused. They should be more wary. They weren’t aware of it, so it needed more hard work for me. And the way they were talking as well, these solicitors, I put it to you, hang on a minute. I’m not in court here.
And then so much paperwork as well. So they’re all confused as well. You’ve got a page, you’ve got bundles in here, and then you go to page 699. You’ve got to try and find it. And then it’s that one there, and then you have to go to that page. So it’s a bit confusing.
SPEAKER 4: I think they gave me-- they sort of explained how it worked. But what I think would have been most useful if someone had attempted to prepare me for what the cross examination might be like. So yeah, we then had another two weeks in [BLEEP] that we had to out for ourselves.
But I’ve got a cousin who lives on the edge of [BLEEP]. So we stayed in his spare room. And my parents basically moved in and looked after my three children for those two weeks. But it was a nightmare logistically, and the girls weren’t happy that we were vanishing.
So it’s-- I think it’s hard not having a representative because you can’t talk back and argue back for yourself. So it felt like the barrister could say whatever he wanted and try and like tear me apart and make out like I was a bad mum, and that I didn’t care about my children and that I was too busy to go and do what the midwife said, and that I wasn’t listening, but I wasn’t allowed to say no or to give any evidence about myself that proves that I do always take health care professionals’ advice. Because it wasn’t about me. It was about the midwife’s fitness to practise.
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 _unit5.3.1 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.