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Type: Journal article
Title: Balancing fairness to victims, society and defendants in the cross-examination of vulnerable witnesses: an impossible triangulation?
Author: Bowden, P.
Henning, T.
Plater, D.
Citation: Melbourne University Law Review, 2014; 37(3):539-584
Publisher: University of Melbourne, Law School
Issue Date: 2014
ISSN: 0025-8938
Statement of
Phoebe Bowden, Terese Henning and David Plater
Abstract: Cross-examination is fundamental to the adversarial criminal trial. However, when children and witnesses with an intellectual disability are cross-examined, it can lead to unreliable evidence and further trauma to the victim. Various reforms in Australian jurisdictions, England and elsewhere have had only limited practical effect as they fail to address the underlying problems that arise from the adversarial system itself. While any changes must maintain a defendant’s vital right to a fair trial, the current criminal trial may allow defendants an illegitimate advantage. Fairness to the defendant, victim and society can and must be balanced. In order to reduce any illegitimate advantage, direct cross-examination should be removed. Instead, cross-examination should be conducted in advance of trial by a suitable third party and video-recorded. A similar process is used in Norway. A wholesale transformation into an inquisitorial system is not required for the benefits of non-adversarial examination to be achieved.
Keywords: Children; evidence; people with disabilities
Rights: Copyright Status Unknown
Published version:;res=IELHSS;issn=0025-8938
Appears in Collections:Aurora harvest 3
Law publications

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