Cross-Examination: Seemingly Ubiquitous, Purportedly Omnipotent, and “At Risk”

Abstract

Cross-examination is viewed as a core aspect of the trial process, both criminal and civil, and its use and purported power are omnipresent in the American adjudicative system. Indeed, this role is confirmed in the abundance of literature (both fictional and educational) involving cross-examination, and its increasing prominence in the law school curriculum. This article confirms the exalted status cross-examination has achieved and arguably retains in the American trial and fact-finding process, while simultaneously identifying its frailties: its ineffectiveness as a truth-discerning tool in varying contexts; trends in constitutional law that will eliminate the requirement of cross-examination for expanding categories of witnesses; and the impact of technology and popular media on the learning processes and expectations of jurors. Particularly because of the transformation of hearsay law and the continuing trend toward visual rather than aural learning and knowledge accumulation, cross-examination may play a reduced role in the trial process and its form may need to be reinvented.