A Personal View – March 2013
From Day One of the Oscar Pistorius Trial, the sequence of events was plainly established: all witnesses would be subjected to a barrage of cross questions by Oscar Pistorius’s council, Barry Roux, all in an attempt to poke holes into their testimony or at best to discredit them.
In this Advocate Barry Roux has excelled.
The tactic has been consistent. Attempt to confuse the witness with questions about the minutiae of their evidence combined with an accusatory sarcastic tone. Both attributes are sufficient to unnerve all but the most confident & self-assured witness.
Does it really make any difference whether Michelle Burger, a neighbour, heard the screams at 3:09 or 3:10 given the fact that most time pieces are inaccurate by a few minutes in any case? But some miserly differences are used as a crowbar to bludgeon the witness into becoming confused & into an admission that maybe they were mistaken on related issues.
Of course, any such admission will be further used both to erode the witnesses’ confidence but furthermore to cast doubts into their reliability & the veracity of their evidence.
Fortunately South Africa does not operate on a jury system so the effect of this type of cross questioning is not as profound as in America for instance where Jonnie Cochran used this successfully in the OJ Simpson Trial. [An aside: With the O meaning Orenthal, no wonder Simpson prefers to be called OJ instead of Orenthal James.]
Nevertheless one needs to question this modus operandi.
This is the nub or essence of this article.
In the Oscar Pistorius case, the accused has already confessed to killing Reeva Steenkamp. What is at issue is whether Pistorius is guilty of murder or culpable homicide.
This fact & this fact alone determined Barry Roux, Oscar’s defence attorney’s task. His overarching strategy is to ensure that Oscar was only convicted of culpable homicide.
His tactics to accomplish this objective was straight forward: to cast doubt & aspersions on the testimony of all the witnesses & their reliability. In the first witness, Michelle Burger, Barry Roux had met his match. Michelle was unflustered & unwavering in her replies not willing to be drawn into the possibility that she might have to been mistaken or mistaken or non compis mentis. She relentlessly stuck to her original story & Barry Roux could not make her deviate despite his persistent badgering.
However her husband in confusion make the unutterable mistake of promising Barry Roux that he would never lie. In a harsh sarcastic tone, Barry Roux seized this comment & implied that he had been less than truthful & wasn’t he supposed to be telling the truth under oath in any event.
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People at Newlands are paranoid today! Is that a cricket bat or a gunshot?!!
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The question that has to be asked is whether this manner of cross questioning is permissible. On the talk radio shows the callers have almost universally lamented & decried Barry Roux’s brutal sledge hammer approach. Furthermore they raise the concern whether this approach will deter future witnesses from testifying in trials. All of these Callers seem to believe that truth will prevail if cross examination is performed in a friendly non-adversarial manner.
There is one instance in which such a non-threatening situation is utterly essential & that is when children are testifying in a rape trial. Given the type of pressure that Barry Roux applied to the witnesses in this trial, these children would quickly become disorientated or even clam up entirely.
In fact in these cases even the court environment itself could be so threatening to these youngsters that the truth will not prevail. It can be argued that in these cases the testimony should be held in a neutral non-threatening environment.
Returning to the Oscar Trial, are there any circumstances in which less adversarial approach he preferable.
Personally I cannot find a solitary instance for a less aggressive approach.
What is at stake? Ten years versus life imprisonment.
Michelle Burger’s testimony is a case in point. Was Barry Roux merely trying to confuse Michelle by submitting that the sound that she heard was a cricket bat & not pistol shots? Perhaps but maybe not. It is not impossible that it was a cricket bat. The type of scream was another issue. On both counts it is not impossible that Michelle Burger was mistaken in that she is not an expert in either issue & it is merely her interpretation of the sounds.
Not only that, as it has been proved conclusively in many psychological tests, one is apt to interpret events through one’s cognitive & experiental learnings. An Inuit is believed to be able to differentiate between ten types of snow but 99% of the world’s population would only be able to identify it as snow – no more & no less.
When one is first presented by the cricket bat hypothesis, one can be quickly dismissive of this attempt at derailing the witness. Yet on sober reflection one cannot dismiss this possibility out of hand.
What happens in the case when a witness is merely an egregious liar? In such cases, even a polygraph test would not implicate the person in lying yet a skilled interrogator will quickly prise apart the finer details to the point where the witness is exposed as a liar.
Given what is at stake, ten years versus life imprisonment can the court afford to pander to the desires of the witnesses not to be exposed as mistaken, unreliable or at worst outright liars?
Of course not!
This presupposes that both the Judge & the Prosecutor are doing their job & ensuring that the Defence Attorney is not transgressing the bounds of questioning.
On balance, justice demands that one errs on the side of caution & that unless compelling testimony can support the State’s version of events, that the accused be given the benefit of the doubt.
In spite of the consternation caused by Barry Roux’s modus operandi, it can in no way be considered unfair & bully boy tactics.
Instead I just hope that I am not forced to testify in a Court of Law & be cross questioned by the likes of Barry Roux.