Putting your case: a follow up

There are some excellent blogs by barristers defending cross-examination techniques, especially in cases where it is essentially a matter of one person’s word against another.   Felicity Gerry has written eloquently here.  Francis Fitzgibbon QC has written two excellent posts (here and here).  All three posts are measured, intelligent but (on my reading) protective of the current system and approach.  Of particular interest is this passage from Francis, which I hope captures the essence of his point:

It’s a rule of basic fairness that witnesses, whoever they are, should have that opportunity. If the jury or judge hasn’t assessed how the witness responds to the opposing case being put, it becomes much harder to decide whether the allegation is true and the evidence for it reliable.

In a case of historic sex abuse, for example, where no significant evidence except the word of the defendant and the complainant survives after many years of silence, the defence is likely to be a simple denial, accompanied with the allegation that the complainant has invented the allegation for reasons of their own. The defendant’s case in 2013 may be that he accepts he was in a relationship with the complainant’s mother in 1983, but that he never touched the complainant, and she must be making it up. There’s nothing else to go, so the way in which the witness deals with the defence case, as put to her, is an important part of the evidence for the court to consider. As I suggested in an earlier post, the maxim ‘show don’t tell’ is a good one to follow in cross-examination, but if the defence is that the allegation is a fabrication, the witness must have the opportunity to deal with it squarely. A sincere and outraged denial can speak volumes about the witness’s credibility.

Now there is a lot of sense in this passage but there is, to my mind, a weakness too. I have written a comment for Frances’ blog along these lines:

The issue has to be how [an allegation of fabrication] is put. And what is really learned once it is put. It would be interesting to know whether the model of polite but robust approach with judge intervening (“probably”) that you advocate is the approach taken as often as it should be. You say, “A sincere and outraged denial can speak volumes about the witness’s credibility.” Well, maybe it can – but does it? I am not as convinced as you are that oratorically convincing denials are – in and of themselves – evidence of the veracity of a witness. I thought instantly of Jonathan Aitken’s ‘sword of truth’ when he announced his intention to sue the Guardian. My recollection is he was undone by a hotel receipt not the strength or otherwise of witness conviction. Again, that is not to say that a witness should be denied the chance to rebut an accusation made against them, – of course they should; but it seems to me a great deal of emphasis is placed on folkish concepts of how we “know” when someone is telling the truth or lying.

To give you an example, I was struck by this passage from the British Psychology Society report I linked to in my blog (http:\\lawyerwatch.wordpress.com):

“The vividness of mental imagery is poorly related to memory accuracy (3.vii.23). Some studies have reported a negative vividness–accuracy relationship, with vivid imagers more likely to confuse false with genuine recollection because they are more able to imagine the misleading information as if it had actually occurred (3.vii. 11, 29 & 30). Imagining something happening can lead to distortions in memory, with an individual confusing an imagined event for something that actually happened (3.vii.13 & 14).”

I suspect sincerity and outrage may be analogous to vividness. I suspect advocates too rely on vividness in painting a picture of witnesses. To suggest a witness is a fantasist is more vivid than to simply suggest they are mistaken; or they are lying. I do not criticise the QC in the Andrade case for that because I have not seen the transcript and, in any event, the clients instructions and rest of the case may (or may not) have given the fantasist suggestion some substance. But if, as the Times report suggested, the judge did indicate misgivings during the trial, it seems to me the case is one in which questions should be asked without anyone jumping to conclusions about the answers. I understand that a solicitor present for most of the cross-examination says this did not happen (on what she saw). Of course, the judge issued a robust defence of the barrister once the death of Ms Andrade was announced. That is consistent with the barrister having done nothing wrong in his eyes, but also with the judge seeing that any concerns he might have had about the cross-examination being (understandably) outweighed by the opprobrium that would be heaped upon the barrister if criticisms were allowed to stand uncorrected. On the evidence that has emerged so far, I prefer the judges view given at the end of the trial; but I do not know.

2 thoughts on “Putting your case: a follow up

  1. Thanks for picking this up. Of course it’s not always easy to tell when you’re being lied to, in Court or anywhere. The Aitken case shows that you need something solid and independent to nail a lie (though his overdone rhetoric wd certainly have rung alarm bells for me – doth protest too much). What if it really is just word v word? I’m confident that between them, a group of twelve individuals are likely to offer a better assessment than just one person, because of the different life-experiences they bring to the process. To call the jury’s work ‘folkish’ is ambiguous: in a strong sense, of course it’s folkish – we trust the non-specialist public to make difficult decisions, and they give the process legitimacy. The value of the jury is its folkishness in that sense. But I detect a criticism, that the jury lacks expertise when it comes to understanding mental states and representations of those states in words. To which my answer is: who should we trust to have a better understanding and therefore a better ability to make the decisions that we give to juries?

    1. Thanks Francis. I’m not criticising juries and even less am I advocating something other than jury trial. It’s your claim that, ” A sincere and outraged denial can speak volumes about the witness’s credibility,” that is the sort of thing that I am taking aim at as folkish (in as gentle a way as I can muster). A blunter way of putting what I was saying in my first post was, [some of] our ideas about credibility may be built on sand. Where that leaves us, I am not sure, but it does raise questions about the point at which restraint in cross-examination should be shown. As, I think we both agree, this may be about the how of questioning not the what questioning should be about.

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