Dr Natalie Martschuk1, Dr Sonja Brubacher1, Prof Martine Powell1
1Griffith University, Australia
Biography:
Dr Natalie Martschuk is a Research Fellow at the Griffith Criminology Institute. Dr Martschuk is a psychologist, holding a PhD in Legal Psychology. She has over 10 years’ experience conducting research that involves empirical legal studies that foster evidence-based decisions to promote social justice in Australia and internationally. Her research includes jury decision-making, investigative interviewing strategies, questioning at trial, witness reliability and credibility, using quantitative and qualitative research methods, and meta-analyses.
Cross-examination–of children in particular–is arguably the most criticized of all legal procedures. Efforts to improve the practice have had some success but cross-examination questions remain complex; obtaining the voices of the defense barristers who conduct cross-examination may provide insight as to why. The aim of the present research was to ask defense barristers and other legal professionals about their decision-making when cross-examining young complainants. Focus groups and individual interviews were conducted with 19 professionals with direct experience related to the cross-examination of children. Participants were asked about the strategies they use and the factors that influence them. They were also asked for their perspectives on how to ask questions of children in ways that addressed children’s developmental limitations while maintaining fairness to their client. Participants considered the rules of the court, the client’s instructions, the complainant, and case factors in their approach to cross-examination. The analyses revealed three overarching themes: (i) How tactics are used depends on myriad factors; (ii) Obligations to client versus concern for complainant requires a delicate balance; and (iii) Solutions for ‘better’ cross-examination must consider defense’s perspectives. Changing cross-examination to achieve balance between defense’s obligations and complainant needs is possible, but the complexity of individual case factors on decision-making approaches may necessitate case-by-case analyses before general principles can be identified.