CLD Criminal Law Basics

On Cross-Examination

What is Cross-Examination?

Cross-examination in the context of a legal trial in Commonwealth legal systems is the interrogation of a witness called by one’s opponent. It is preceded by direct examination, otherwise known as examination-in-chief, and may be followed by a re-examination. In the case of Singapore’s courts, the person conducting the cross-examination is allowed to go beyond the scope of direct examination, that is, to ask questions that do not pertain to the testimony offered during direct examination. In Singapore, the Evidence Act¹ provides for the examination and cross-examination of witnesses. Confrontation and the opportunity for cross-examination stands as a significant component of the common law adversarial system of trial.

Cross-examination is arguably one of the critical components of the adversarial system of justice, in that, as put by Lai Siu Chiu JC, that it is a “powerful and valuable weapon for the purpose of testing the veracity of a witness and the accuracy and completeness of his story. It is entrusted to the hands of counsel in the confidence that it will be used with discretion; and with due regard to the assistance to be rendered by it to the Court, not forgetting at the same time the burden that is imposed on the witness.”² Ultimately, the process of cross-examination can be said to serve three major purposes: to elicit evidence in support of one’s case; to cast doubt on, or undermine the witness’ evidence and credibility to weaken one’s opponent’s case; and lastly to challenge or cast aspersions on disputed evidence³. As Wigmore had once proclaimed, cross-examination remains “the greatest legal engine ever invented for the discovery of truth”⁴. Many years later, this still rings true and another instrument to fulfil this end has yet to emerge.

The Judge

The judge can only consider evidence presented in court. Whatever is not brought before the court cannot be considered. The Judge will hear the evidence produced from both sides in accordance with the law, in an attempt to ascertain and assess the accuracy and credibility of the evidence presented. A judge’s ultimate responsibility is to achieve the most fair and just outcome based on the evidence made available to him, to truth-seeking outcomes for the good of society.

The Opposing Counsel & The Re-Examining Lawyer

As an important stakeholder in the administration of justice, a legal practitioner involved in the process of cross-examination must balance the advocate’s twin duties of making sure an accused person is given a fair trial by invoking the right to challenge and examine witnesses, all while discharging the advocate’s duty to elicit the best and most useful evidence for the Court. An advocate, being an officer of the Court, not only serves his client’s cause and the interests of justice by demonstrating respect and fairness in the conduct of a case. In accordance to the Legal Profession (Professional Conduct) Rules⁵, a legal practitioner must always be “courteous in the conduct of a case, whether to the court or tribunal, or any other person involved in proceedings”⁶.  More generally, a legal counsel should aim to treat persons unrepresented by other legal practitioners more fairly⁷. Since the advocate wields the power to question witnesses, vulnerable witnesses must not be asked unfair questions. As Yong Pung How CJ submitted, cross-examination must be “conducted with restraint and with a measure of courtesy and consideration to the witness.”⁸ Evidently, cross-examination now plays an indispensable role in the Singaporean context.

The Witness

A witness cannot be cross-examined by his own side unless he/she has been declared hostile by the judge. The witness owes a duty to the court to be honest in answering questions put to them by lawyers, prosecutors or the Judge truthfully, and not manifestly obstruct the achievement of a fair and just outcome, which would be akin to putting whatever particular self-interests forward⁹. A witness therefore should never alter his evidence to benefit others or try to influence the evidence of other witnesses. All witnesses can be made subject to cross-examination except witnesses called by a witness summons merely to produce a document; witnesses called and sworn by mistake, and witnesses called forward by the judge. In court, the witness are not to discuss the case with anyone who has witnessed the ongoing proceedings, prior to giving evidence. Ultimately, by coming forward as a witness, the witness is assisting the Court and is fulfilling one’s duty as a responsible member of society.

The Jury (in applicable systems)

In trial advocacy, cross-examination is also of equal importance and the topic is offered substantial attention. The opinions of a jury or judge are often altered significantly when aspersions are cast on the witness during the process of cross-examination. Likewise, a credible witness can affirm the belief in the original statement, or enhance a judge’s or jury’s belief. Thus, effective cross-examination can be said to win trials. In the United States, cross-examination is viewed as “the principal means by which the believability of a witness and the truth of his testimony are tested.¹⁰” Therefore, while there are many factors that affect the outcome of a trial, cross-examination of a witness, done effectively, can influence an open-minded and unbiased jury searching for the certainty of facts upon which to base their decision.

The History of Cross-Examination

While trials have been a part of history since medieval, if not ancient times, to determine the guilt or innocence of an accused- or to determine disputed facts, they assumed aspects, characteristics and procedures far different from those to which we are now accustomed. Historians believe that trial by jury was brought to England by the Normans (circa 1066); this presupposes that jury trial as a way of determining disputed facts were used by the Anglo-Saxons and Germanic tribes prior to the Norman Conquest¹¹. A recognition of its importance was further illuminated in the late Pierre Ayrault’s writings¹² on criminal justice theory, who submitted the desirability of cross-examination as a complement to the face-to-face rendering of an accuser’s testimony. Ayrault was a major proponent of the use of cross-examination in order to expedite the process of truth-finding. Our present-day jury trial either followed or was adapted from the common law of England. According to a renowned scholar named Francis Wellman, he alleges that the art of cross-examination as a practice of interrogation is “as old as the history of nations¹³.

Professor Langbein14 traced the acceptance and institutionalising of the cross-examination to the 1730s, particularly in non-treason cases. He found that it was a necessary response to occurrences in the English trial system which included the growing use of lawyers in prosecutions in both the investigative and trial systems; the reward system that offered bounties to those who provided testimonies that helped establish that a crime was of a particular severity to qualify as a felony and thus invited testimonies that could otherwise be fraudulent, and the corrupt motive of which cross-examination was required as an antidote.

A major difference between the role of cross-examination in common law and civil law jurisdictions can be observed from the extent of involvement of oral testimony from witnesses. In common law jurisdictions, they are of great importance at the trial, with parties often exchanging witness statements from the witnesses they intend to call before the trial; and will then be followed by the opponent cross-examining the witness on any matters, whether or not within the statement. Oral evidence, being a major and important part of the trial, even in relatively minor cases, may still involve trials that run the course of many days or weeks, while large cases can elapse into several months. In the case of civil law jurisdictions, oral evidence tends to play a much less important role however, and hearings therefore tend to be much shorter in comparison.

Cross-Examination in Practice Today

Cross-Examination in Popular Culture: Debunking Misconceived Notions

The popularity of legal shows raises the possibility that movie and television audiences, possibly even real-life juries, find cross-examination to be the most compelling and exciting segment of the civil or criminal trial. It would seem that, even today, those not in the legal profession or industry continue to perceive cross-examination in trials through the lens of dramatization and exaggeration in popular culture and media.

Though heated and fiery exchanges – like the ones audiences crave so much – do occur, it would appear, to anyone who has observed actual trials in the courtroom, that these remain the exception rather than the norm. In real-life, cross-examination rarely results in the witness dramatically confessing in a paroxysm of rage when questioned.

The Honorable J. Thomas Marten, Senior United States District Judge for the District of Kansas, shared with the American Bar Association’s Trial Evidence Committee: “The most effective cross-examinations are rarely hostile”, and that rather, “they generally drive home points important to the cross-examiner’s case.”15

This can be seen in the case of Singapore – where the conduct of cross-examination is governed by legislation in the form of the Evidence Act (Cap 97) Rev Edn 1997 (“Evidence Act”) and the Legal Profession (Professional Conduct) Rules 2015 (“PCR”) – there are ways in which a lawyer absolutely cannot conduct his cross-examination of the witness.

The Evidence Act lays out situations in which the cross-examining lawyer may not ask certain questions of the witness. These include questions for which there are no reasonable grounds for asking them16, indecent and scandalous questions17, questions intended to insult or annoy18. In addition, there are also restrictions on the asking of questions in criminal proceedings involving certain offences, with child abuse being one example19.

The consequences of failing to abide by the aforementioned stipulations are real and severe. Earlier this year, a Singapore lawyer was suspended from practice for five years for his behaviour in questioning a witness20. In passing sentence, the Court of Three Judges found that he had undertaken the line of cross-examination in question, to humiliate the witness21. It found that such conduct of his had been an abuse of the privileges of cross-examination entrusted to advocates21.

Further Development of the Areas Out-of-Bounds to Cross-Examiners

Recent developments, in the form of the Evidence (Amendment) Act 2018 and the Criminal Justice Reform Act 2018 which were brought into force on 31 October 201822, show advances made towards the areas and lines of questioning which are out-of-bounds to cross-examining lawyers, as earlier discussed.

Earlier, in the parliamentary debate on the Criminal Justice Reform Bill on 19 March 2018, several Members of Parliament (MP) had raised the issue of inappropriate questioning by cross-examining defence lawyers in trials23. The Law Society of Singapore has also published “A Best Practices Toolkit” for the cross-examination of vulnerable witnesses24. Furthermore, in the aforementioned parliamentary debate, Nominated Member of Parliament, Mr Kok Heng Leun suggested that defence lawyers should be encouraged, or possibly even required to undergo training before taking on cases involving vulnerable victims whom would be cross-examined25.

It would therefore appear that more developments in this aspect are likely to arrive in the coming years thus further changing the practice and use of cross-examination in Singapore.

Lost in Translation? The Issue of Interpretation & Translation in Cross-Examination

It could be said that the most crucial component and indeed the foundation of cross-examination in the courtroom trial, is the verbal back-and-forth of questions and answers between the cross-examiner and the witness. But as with all things, that is not all: for judges and juries also consider other behaviour which are not necessarily in the verbal form. This can take the form of tone, emotion and demeanour on the part of the witness.

How then, does the inclusion of a third-party interpreter affect the interaction between cross-examiner and witness? The starting point, necessarily, is that all communication passes through the interpreter. As stated above, judges and juries consider the witness’s tone in their replies to questions. This nuance may depend almost entirely on the interpreter and can potentially be lost if they are unable to replicate that on behalf of the witness.

Furthermore, the ability of the interpreter to accurately convey the witness’s words and meaning can often be of paramount importance. In Singapore, this has been demonstrated, though not relating to cross-examination specifically, in the high-profile case of Public Prosecutor v Abdul Naser bin Amer Hamsah [1996] 3 SLR(R) 268, which involved the death of Japanese tourist Fujii Isae, as a result of an attack by the respondent and his accomplice26. That appeal revolved around the issue of whether the trial judge had been correct in accepting that the respondent had accidentally stepped on the face of the deceased victim, Ms Isae27.

In statements that the respondent had made, it was recorded that he said he “stamped” his foot on the deceased’s face28. The Malay interpreter stated that she recorded it as “stamped” in English even though the respondent had used the Malay word for “step on” because of a demonstration the respondent had given28. However, she used the Malay word for “step on” when reading the statement back to the respondent because she did not think he would understand the Malay word for “stamp”28. The appeal turned on this difference because of the respondent’s subsequent statement that he had accidentally stepped Ms Isae’s face because he had lost his balance28.

Finally, there is likely to be no sure-fire way to ensure that witnesses do not ‘game’ the system, so to speak, through nefarious, strategic use of interpretation. This issue is live because international legal studies have indicated this possibility29. One way witnesses may do this is to use the interpreter – through the delay in communication that interpreters necessarily represent – to buy time for themselves to think of an answer to the question which they have been asked30.

If a witness actually understands the cross-examiner but conceals the extent or existence of their ability, or invokes interpretation, or lack of knowledge – among other things – it produces a significant impediment to the court in its fact-finding quest31.

These problems which interpretation and translation pose continue to beset and inform the practice and use of cross-examination today, in light of the consideration that Singapore, at the cross-roads of trade and commerce in Asia, is a popular destination for the resolution of disputes by international parties, who may not possess the requisite level of English proficiency.

Points of Interest in Cross-Examination & The Advocate’s Journey

There already exists a significant body of work with regard to cross-examination. It is for this reason that this article will not attempt to examine each and every aspect of cross-examination which exists. Instead, it will highlight certain points and aspects that may be of interest to aspiring or prospective legal practitioners, as well as the beginning of the journey that they would have to undertake towards improvement as a cross-examiner.

Favourable Evidence in the Common Law System

In Cross-Examination: The Art of the Advocate, by Roger E. Salhany QC, Michael D. Edelson and W. Vincent Clifford, the point is raised that unlike in civil law systems – which adopt the inquisitorial approach towards fact-finding and where the judge leads such an exercise – evidence in common law systems is led by the advocates from the witnesses32. It goes on to state that, therefore, a particular witness may actually possess more information and knowledge about the subject matter in question than he has been asked to reveal for the very simple reason that opposing parties do not expose the weaknesses in their own cases unless they are required to do so32.

Davinder Singh SC, in Modern Advocacy: Perspectives from Singapore, puts it aptly in stating that:

“If a witness can normally be expected to have particular knowledge on any given subject in issue, and yet such knowledge is not touched upon in examination-in-chief, the apparent oversight may indicate a desire on the part of opposing counsel to avoid any conflict in the evidence of his or her witness.”33

Salhany QC, Edelson and Clifford also go on to state that such favourable evidence can even be revealed in a manner which results in the witness appearing to have deliberately concealed that information34. Furthermore, they also point out that the favourable evidence acquires a higher degree of credibility if it comes from the opponent’s witness, as compared to the cross-examiner’s own35.

Therefore, the good cross-examiner remains cognisant of the fact that their opponents and witnesses may very well have cards close to their chest, so to speak, that they do not wish to reveal.

Dangers in Attempting to Discredit or Impeach the Witness

A witness whom has been impeached, or whose testimony has been effectively discredited, is one whom no longer poses a threat to the cross-examiner and his case. This, however, is often not easy to accomplish, given the pitfalls which lie in the path of the cross-examiner.

In attempting this, the cross-examiner may inadvertently turn the judge, jury or both, against himself. Judge J. Thomas Marten states – with regard to the example of inexperienced lawyers attempting to impeach witnesses using prior statements – that:

“If the statements are not truly inconsistent, the lawyer appears to be unfair and trying to mislead rather than to lead the jury to the truth”36

Similarly, Salhany QC, Edelson and Clifford reiterate that:

“the inconsistency must be a genuine one and one of substance. Counsel should not nit-pick with the witness. This only irritates the judge and, even more so, the jury.”37

They urge caution, in stating that counsel has to be extremely fair and honest and not take the inconsistency out of context, should he choose to undertake such a course of action with the witness38. Likewise, Davinder Singh SC, states that while the correct and effective use of prior inconsistent statements by the cross-examiner – through the operation of sections 147(3) and 157 of the Evidence Act in Singapore – can be powerful, failure might very well cause the cross-examiner to undermine his own case39.

Expert Witnesses

The cross-examination of expert witnesses poses a daunting challenge to most cross-examiners. It will almost always be the case that the lawyer cannot hope to match the expert witness in terms of understanding the particular subject matter in question, and where the expert witness holds dominion over that narrow sphere of knowledge.

In this aspect of trial cross-examination, a head-long offensive by the cross-examiner will likely fail unless he, too, possesses a level of knowledge similar to that of the expert40. This, practically speaking, is likely to be exceedingly rare. How then, can the cross-examiner begin preparations to meet the formidable force that is the expert witness?

To start with, the cross-examiner must not allow himself to be intimidated by the expert witness. To this point, Salhany QC, Edelson and Clifford highlight an important and crucial distinction between the types of expert witnesses41. They distinguish the experts through two broad categories: experts called upon by police forces; and experts called upon in civil cases41.

The difference that they seek to highlight is that, generally speaking, the former are more used to giving evidence in court while the latter, such as engineers and doctors, may not be as comfortable in doing so and are possibly even intimidated by the processes of the courts41. Here, it is also likely that the latter may be frustrated due to the requirement that their scientific or technical evidence be framed in a certain manner when responding to questions concerning legal issues41.

Lok Vi Ming SC, in Modern Advocacy: Perspectives from Singapore, also reminds the cross-examiner that he is the one doing the questioning42. The cross-examiner alone decides what to ask, how to ask, when to ask, and controls the pace at which the questioning proceeds42. As the saying goes, the ball is in the cross-examiner’s court. Therefore, it is up to the cross-examiner – through comprehensive preparation, self-confidence and the full, effective use of his own expert witness – to not cede the vast advantage given to him by his role as advocate in the courtroom43.

Thomas C. O’Brien and David D. O’Brien – in their American Bar Association Litigation Journal article, Effective Strategies for Cross-Examining an Expert Witness – also highlight what they term as “the Résumé Attack”44. Such an attack upon the expert’s credentials can level the playing field and allow the cross-examiner to disarm the expert by demonstrating to the court that deficiencies in the expert’s qualifications should not allow him to be considered an expert in the first place44. If achieved at the outset, the cross-examiner would have won a major victory and have divested himself of the difficulties in confronting opposing expert witnesses.

In illustrating how such a challenge might be mounted, O’Brien and O’Brien give the example of fraudulent credentials; if the cross-examiner can show that the opposing expert lied about their credentials44 then the discrediting of that expert is complete45. This, according to them, occurs much more frequently than one might think, citing a national survey within the United States45.

Journey of a Thousand Miles

For the advocate, cross-examination is a skill that can take years to master. While some may take to it more naturally than others, there is no substitute for sheer determination and thorough preparation. Furthermore, each cross-examiner has their own style, which they have had to develop over years of practice and through the real-life application of their skills. Some are searing and intense, others polite and well-mannered. But each knows what works best for them, allowing them to extract the maximum benefit from their own individual style.

Regardless, a journey of a thousand miles must always begin with a single step. That first step for the cross-examiner must always be thorough preparation for what awaits him in the courtroom. It would appear that, in knowing one’s own case, the cross-examiner must be able to condense his arguments into a concise, coherent case theory. Davinder Singh SC puts it:

“All of us know that no matter how many witnesses are called or voluminous the bundles of documents are, it is a rare case which does not ultimately turn on one or two main points, which in turn are dependent on one or two main witnesses and a (small) core bundle of documents.”46

And that:

“It is not without reason that the Court of Appeal requires advocates to distil their arguments into 20 pages and compress the hundreds or thousands of documents at trial into a handy core bundle”46

Similarly, Charles J. Faruki in Cross-Examination That Hurts the Witness, Not You, reminds the cross-examiner that:

“As in so much of the practice of law, editing is important. Once you have a draft of your cross-examination, tighten it by paring it down.”47

And that once this is done, the cross-examiner has a condensed case theory and where he knows it inside and out, he can:

“Plan for the Y’s, the forks in the road: If the witness says A, plan to go here. If the witness instead says B, go there.”48

The above is, but of course, only the beginning. As with most things in life, it is likely that even the best will fail to achieve complete mastery. But to be better today than one was yesterday is as close to perfection as one gets. And so it is, that the cross-examiner and the aspiring advocate must find the courage and commitment to accept that there can be no short-cut in the arduous path of self-improvement.

The Future of Cross-Examination in Singapore

It is foreseeable that certain developments will affect the continued use of cross-examination in Singapore. These developments include the growth of alternative dispute resolution (“ADR”), changing attitudes towards the practice of law in Singapore, and advances in the technological sphere.

Alternative Dispute Resolution

The relatively rapid development and adoption of alternative dispute resolution (“ADR”) in Singapore is one prominent factor which may affect the continued use of cross-examination. The 2018 International Arbitration Survey found that, today, Singapore ranks among the top five most preferred arbitration seats along with London, Paris, Hong Kong and Geneva49. It also found Singapore to be among the top four most preferred seats in all regions, with the sole exception of Latin America49.

While Singapore has been and continues to be prominent in its push to establish itself as an international and regional leader in ADR, such as in arbitration, it would appear that the domestic legal system and community have not been left out in this drive50. The then-Subordinate Courts in Singapore have already been offering ADR through the Primary Dispute Resolution Centre since 199451.

Today, ADR has become further entrenched locally. In 2012, Amendment No. 2 of 2012 to the Subordinate Courts Practice Directions introduced what was termed, “a presumption of Alternative Dispute Resolution (ADR)” for all civil disputes. The effect of the amendment was that, apart from non-injury motor accident and personal injury claims, all other civil matters would be referred for ADR unless the parties have chosen to opt out52. More recently, Amendment No. 1 of 2016 to the Supreme Court Practice Directions made clear that lawyers in Singapore have a professional duty to advise their clients of the ways their disputes may be resolved through the forms of ADR, as well as the necessity of advising clients on potential adverse costs orders should their refusal to engage in ADR be unreasonable53.

The rise of ADR in Singapore cannot be disputed. If, as the saying goes, numbers tell the story, then they certainly do in this case. In 2017, the total sums disputed at the Singapore Mediation Centre was over $2.7 billion; a record-high sum for the centre since its existence54.

The inevitability and roots of the relatively rapid growth of ADR (and the less-formal structure and processes it represents) in Singapore is a matter of discussion for another time. For the purposes of this article, however, it suffices for one to predict that as a greater degree of the supplanting of cross-examination is achieved – through the continued growth and success of ADR – cross-examination, and by extension the formal trial, may possibly begin to suffer a relative loss of importance in the local practice of law. While this is not to say (and indeed, this article will not go so far) that cross-examination may one day become obsolete, a brief examination of the trend might indicate that the possibility will only become more real with the passage of time. For this reason, additional research in the coming years on the extent of the correlation between the rise of one and the fall of the other, will be of great interest.

Changing Attitudes Towards the Practice of Law in Singapore

While changing attitudes towards the practice of law are an inherent part of any legal system’s development, there are certain aspects that are of particular interest due to their potential effects on cross-examination.

In his address at the admission of advocates and solicitors in 2016, Sundaresh Menon CJ highlighted that the growing commercialisation of the practice of law in Singapore has changed billing perceptions55 and that the resulting perspective of “priority of profit” would damage young lawyers56. More recently, Deputy Attorney-General of Singapore, Hri Kumar Nair, in a Singapore Academy of Law article published this year, echoed the Chief Justice’s sentiments57 and further referred to Nicholas Poon’s Singapore Academy of Law article on the decline of oral advocacy opportunities, especially for junior lawyers58.

Poon found that advocates now have increasing difficulty in maintaining a consistent schedule of hearings in both the High Court and the Court of Appeal as lead counsel59. He suggests that the lack of continued opportunities as lead counsel has a direct impact on advocates, in that they now have less chances to hone their skills in oral advocacy60.

This is further complicated by the fact that for years there has been a flight of lawyers from the industry61 as well as a “hollowing out” of mid-career lawyers in Singapore62. Sundaresh Menon CJ – again, in his 2016 address at the admission of advocates and solicitors – stated that, at the time, mid-tier lawyers constituted fewer than 10 percent of the legal profession within the preceding five years63.

Therefore, the exit of mid-tier lawyers from the industry before they themselves have achieved a high level of proficiency in cross-examination and oral advocacy and before they can pass down what they have learned to junior lawyers in their practices, together with the trend of declining oral advocacy opportunities for junior lawyers, represents a potent mix that may lead to a degradation of the standard of lawyers, with regard to cross-examination skills, in Singapore.

Technological Advances

Advances in the technological and digital sphere represent yet another aspect of change with significant implications on the future of cross-examination. In his address at the Opening of the Legal Year 2017, Sundaresh Menon CJ noted that while technology has already been put into use for the work of the legal profession, it has not affected the profession as much relative to other industries64. This does not appear to be entirely surprising since, as Menon CJ suggests, lawyers:

“are notoriously resistant to change – perhaps an inevitable characteristic of a profession whose principal function is to uphold an enduring and stable system of rules around which society can structure its interactions.”64

It would appear, however, that the dawn of change is coming and faster than ever before. In Singapore today, “Technology Courts” exist in the Supreme Court65. These courts provide lawyers with the use of audio-visual technology in the form of video-conferencing facilities, and can allow the provision of testimony from vulnerable witnesses or witnesses overseas, subject to the relevant provisions under the Evidence Act65.

More recently – just last year – the “Speech Transcription System” was announced and projected for implementation in 202066. When this is accomplished, judges, and of particular interest to this article, prosecutors and defence counsel, will have access to transcripts of oral evidence and proceedings on individual monitors within the courtroom66. The likely effect of this, one might imagine, is that advocates would be able to pinpoint in real-time during cross-examination, particular sections of oral testimony that are of interest to them.

A point has been reached where the effects of digitalisation worldwide can no longer be ignored or denied. Lawyers must not only cease resisting the impending technological changes in the near-future and instead, embrace them fully lest they be left behind. Therefore, the modern advocate, in cross-examination or otherwise, must be prepared to adapt and make full use of that which the future places at their fingertips.

Conclusion

It is hoped that this article has achieved its goal of taking an introspective look into the legal construct that is cross-examination. More importantly, and especially so in this age of disruption, it hopes to have provided a brief glance at the future of cross-examination in Singapore and the various issues that may influence its evolution and continued use.

Written by Andre Lam and Teo Chee Yuan

Special thanks and appreciation goes to Dr. Cheah Wui Ling, Assistant Professor at the Faculty of Law, National University of Singapore, for her valuable assistance in referring one of the writers to Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions by Nancy Amoury Combs.

Bibliography

[1] Evidence Act (Cap 97) Rev Edn 1997 (“Evidence Act”)

[2] Wong Kai Chung v The Automobile Association [1992] SGHC 16

[3] https://www.inbrief.co.uk/court-proceedings/cross-examination/

[4] California v. Green, 399 U.S. 149, 158 (1970) (quoting 5 JOHN HENRY WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 1367 (3d ed. 1940))

[7] Rule 8(1) (c) PCR 2015

[8] Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 2011 (cited in PP v Xu Jiadong [2016] SGMC 38)

[11] https://www.lawcrossing.com/article/900008914/Historical-Progress-and-Purposes/

[12] Frank R. Herrman & Brownlow M. Speer, Facing the Accuser: Ancient and Medieval Precursors of the Confrontation Clause, 34 VA. J. INT’L L. 481, 540-43 (1994) (discussing the writings of Pierre Ayrault, found in L’ORDRE, FORMALITÉ ET INSTRUCTION JUDICIAIRE 1.5 (1588)).

[13] FRANCIS L. WELLMAN, THE ART OF CROSS-EXAMINATION 7 (4th ed. 1936).

[14] John H Langbein, The Origins of the Adversary Criminal Trial (Oxford University Press, 2003) 168-70

[15] Benjamin L. Tompkins, Andrew Alexander, with Hon. J. Thomas Marten, “Tips from the Bench: Cross-Examination” (7 November 2018), online: American Bar Association <www.americanbar.org/groups/litigation/committees/trial-evidence/practice/2018/tips-from-bench-cross-examination/?q=&fq=(id%3A%5C%2Fcontent%2Faba-cms-dotorg%2Fen%2Fgroups%2Flitigation%2F*)&wt=json&start=0>

[16] Evidence Act (Cap 97, 1997 Rev Ed) s 151

[17] Evidence Act (Cap 97, 1997 Rev Ed) s 153

[18] Evidence Act (Cap 97, 1997 Rev Ed) s 154

[19] Evidence Act (Cap 97, 1997 Rev Ed) s 154A

[20] Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 at [2]

[21] Law Society of Singapore v Wong Sin Yee [2018] 5 SLR 1261 at [45]

[22] Ministry of Law Singapore, “Strengthening Singapore’s Criminal Justice Framework – Implementation of Criminal Justice Reform Act 2018 and Evidence (Amendment) Act 2018 Provisions” (31 October 2018) Ministry of Law Singapore <https://www.mlaw.gov.sg/content/minlaw/en/news/press-releases/Strengthening-Singapore-Criminal-Justice-Framework-Implementation-of-Criminal-Justice-Reform-Act-2018-and-Evidence-Amendment-Act-2018-Provisions.html>

[23] Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94

[24] The Law Society of Singapore, “Cross-Examination of Vulnerable Witnesses: A Best Practices Toolkit (I)” (2018), online (pdf): The Law Society of Singapore <https://www.lawsociety.org.sg/portals/0/ResourceCentre/FreePublications/pdf/Best_Practices_Toolkit_on_Cross-Examination_of_Vulnerable_Witnesses.pdf>

[25] Singapore Parliamentary Debates, Official Report (19 March 2018) vol 94 (Kok Heng Leun, Nominated Member of Parliament)

[26] Public Prosecutor v Abdul Naser bin Amer Hamsah [1996] 3 SLR(R) 268 at [3]–[5]

[27] Public Prosecutor v Abdul Naser bin Amer Hamsah [1996] 3 SLR(R) 268 at [22]

[28] Public Prosecutor v Abdul Naser bin Amer Hamsah [1996] 3 SLR(R) 268 at [9]

[29] Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010) at 105

[30] Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010) at 103

[31] Nancy Amoury Combs, Fact-Finding Without Facts: The Uncertain Evidentiary Foundations of International Criminal Convictions (New York: Cambridge University Press, 2010) at 105

[32] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 14

[33] Eleanor Wong, Lok Vi Ming SC & Vinodh Coomaraswamy SC, Modern Advocacy: Perspectives from Singapore (Singapore: Academy Publishing, 2008) at 114

[34] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 84

[35] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 86

[36] Benjamin L. Tompkins, Andrew Alexander, with Hon. J. Thomas Marten, “Tips from the Bench: Cross-Examination” (7 November 2018), online: American Bar Association <www.americanbar.org/groups/litigation/committees/trial-evidence/practice/2018/tips-from-bench-cross-examination/?q=&fq=(id%3A%5C%2Fcontent%2Faba-cms-dotorg%2Fen%2Fgroups%2Flitigation%2F*)&wt=json&start=0>

[37] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 156

[38] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 155

[39] Eleanor Wong, Lok Vi Ming SC & Vinodh Coomaraswamy SC, Modern Advocacy: Perspectives from Singapore (Singapore: Academy Publishing, 2008) at 111

[40] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 174

[41] The Honourable Roger E. Salhany, Michael D. Edelson & W. Vincent Clifford, Cross-Examination: The Art of the Advocate, 4th ed (Toronto: LexisNexis Canada, 2016) at 173

[42] Eleanor Wong, Lok Vi Ming SC & Vinodh Coomaraswamy SC, Modern Advocacy: Perspectives from Singapore (Singapore: Academy Publishing, 2008) at 154

[43] Eleanor Wong, Lok Vi Ming SC & Vinodh Coomaraswamy SC, Modern Advocacy: Perspectives from Singapore (Singapore: Academy Publishing, 2008) at 155

[44] Thomas C. O’Brien & David D. O’Brien, “Effective Strategies for Cross-Examining an Expert Witness” (2017) 44:1 ABA Litigation Journal 26 at 26

[45] Thomas C. O’Brien & David D. O’Brien, “Effective Strategies for Cross-Examining an Expert Witness” (2017) 44:1 ABA Litigation Journal 26 at 27

[46] Eleanor Wong, Lok Vi Ming SC & Vinodh Coomaraswamy SC, Modern Advocacy: Perspectives from Singapore (Singapore: Academy Publishing, 2008) at 105

[47] Charles J. Faruki, “Cross-Examination That Hurts the Witness, Not You” (2007) 33:3 ABA Litigation Journal 38 at 39

[48] Charles J. Faruki, “Cross-Examination That Hurts the Witness, Not You” (2007) 33:3 ABA Litigation Journal 38 at 40

[49] White & Case, Queen Mary University of London & the School of International Arbitration, “2018 International Arbitration Survey: The Evolution of International Arbitration” (2018), online (pdf): White & Case <https://www.whitecase.com/sites/whitecase/files/files/download/publications/qmul-international-arbitration-survey-2018-18.pdf>

[50] Deborah Chua, “The Current State of Alternative Dispute Resolution in Singapore” (January 2013), online: Law Gazette <http://v1.lawgazette.com.sg/2013-01/650.htm>

[51] District Judge Dorcas Quek & District Judge Seah Chi-Ling, “Finding the Appropriate Mode of Dispute Resolution: Introducing Neutral Evaluation in the Subordinate Courts” (November 2011), online: Law Gazette <http://v1.lawgazette.com.sg/2011-11/247.htm>

[52] Subordinate Courts of the Republic of Singapore, “Practice Directions Amendment No. 2 of 2012” (2012), online (pdf): State Courts of the Republic of Singapore <https://www.statecourts.gov.sg/cws/Lawyer/Documents/PD%20Amendment%20No%202%20of%202012(2).pdf>

[53] Supreme Court of the Republic of Singapore, “Supreme Court Practice Directions (Amendment No. 1 of 2016)” (2016), online (pdf): Supreme Court of the Republic of Singapore <https://www.supremecourt.gov.sg/docs/default-source/default-document-library/rules/pd-amd-no-1-of-2016.pdf>

[54] Singapore Mediation Centre, “Total disputed sums mediated at Singapore Mediation Centre crosses $2.7 billion in 2017 – the highest ever in the centre’s history” (16 January 2018), online (pdf): Singapore Mediation Centre <http://www.mediation.com.sg/assets/Uploads/News-Release-Total-disputed-sums-mediated-at-Singapore-Mediation-Centre-crosses-2.7-billion-in-2017-the-highest-ever-in-the-centres-history-FINAL.pdf>

[55] Supreme Court of the Republic of Singapore, “Address by the Chief Justice” (26 August 2016) at 33, online (pdf): Supreme Court of the Republic of Singapore <https://www.supremecourt.gov.sg/Data/Editor/Documents/CJ%20Mass%20Call%20Speech%202016%20on%2026%20August%202016%20(Final).pdf>

[56] Supreme Court of the Republic of Singapore, “Address by the Chief Justice” (26 August 2016) at 34, online (pdf): Supreme Court of the Republic of Singapore <https://www.supremecourt.gov.sg/Data/Editor/Documents/CJ%20Mass%20Call%20Speech%202016%20on%2026%20August%202016%20(Final).pdf>

[57] Deputy Attorney-General of Singapore, Hri Kumar Nair SC, “In Search of Purpose and Mentorship” (26 November 2018) at 5, online (pdf): Singapore Academy of Law Practitioner <https://journalsonline.academypublishing.org.sg/Journals/SAL-Practitioner/Advocacy-and-Procedure/ctl/eFirstSALPDFJournalView/mid/589/ArticleId/1341/Citation/JournalsOnlinePDF>

[58] Deputy Attorney-General of Singapore, Hri Kumar Nair SC, “In Search of Purpose and Mentorship” (26 November 2018) at 6, online (pdf): Singapore Academy of Law Practitioner <https://journalsonline.academypublishing.org.sg/Journals/SAL-Practitioner/Advocacy-and-Procedure/ctl/eFirstSALPDFJournalView/mid/589/ArticleId/1341/Citation/JournalsOnlinePDF>

[59] Nicholas Poon, “The Decline of Oral Advocacy Opportunities: Concerns and Implications” (6 September 2018) at 25, online (pdf): Singapore Academy of Law Practitioner <https://www.sal.org.sg/Portals/0/(2018)%20SAL%20Prac%201_Decline%20of%20Oral%20Advocacy%20(Published%20on%206%20September%202018).pdf?ver=2018-09-13-112630-233>

[60] Nicholas Poon, “The Decline of Oral Advocacy Opportunities: Concerns and Implications” (6 September 2018) at 29, online (pdf): Singapore Academy of Law Practitioner <https://www.sal.org.sg/Portals/0/(2018)%20SAL%20Prac%201_Decline%20of%20Oral%20Advocacy%20(Published%20on%206%20September%202018).pdf?ver=2018-09-13-112630-233>

[61] Samuel Ang, “Flight of Legal Eagles” (May 2006), online: Law Gazette <http://v1.lawgazette.com.sg/2006-5/May06-feature1.htm>

[62] Zhaki Abdullah, “Burnout leads to ‘hollowing out’ of mid-career lawyers”, The Straits Times (28 August 2016), online: <https://www.straitstimes.com/singapore/burnout-leads-to-hollowing-out-of-mid-career-lawyers>

[63] Supreme Court of the Republic of Singapore, “Address by the Chief Justice” (26 August 2016) at 15, online (pdf): Supreme Court of the Republic of Singapore <https://www.supremecourt.gov.sg/Data/Editor/Documents/CJ%20Mass%20Call%20Speech%202016%20on%2026%20August%202016%20(Final).pdf>

[64] Singapore Academy of Law, “Opening of the Legal Year 2017” (9 January 2017) at 14, online (pdf): Singapore Academy of Law <https://www.sal.org.sg/Portals/0/PDF%20Files/Speeches/Opening%20of%20Legal%20Year%202017%20-%20Response%20by%20The%20Honourable%20the%20Chief%20Justice.pdf>

[65] Supreme Court of the Republic of Singapore, “Technology Courts Booking”, online: Supreme Court of the Republic of Singapore <https://www.supremecourt.gov.sg/services/court-services/technology-courts-booking>

[66] Tan Tam Mei, “State Courts to use system that instantly transcribes court proceedings”, The Straits Times (14 December 2017), online: <https://www.straitstimes.com/singapore/courts-crime/state-courts-to-use-system-that-instantly-transcribes-court-proceedings>

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