At a typical sexual assault trial there’s two people who’d rather not be there: the alleged victim and the alleged accused. From now on I’ll call them the victim and the accused, but that’s without pretending to know where the truth lies.
For both sides, the prosecution and the defence, the advocacy equation applies: know the law (the recipe), assemble the necessary facts for proof (the ingredients), sift all facts through the evidentiary and procedural sieves, cook the whole according to law, and present the finished products like a good cook woos their diners by a presentation of courses that is just right for the season and the diners. For readers who like it simple: know the law, marshal the facts, clear the evidentiary and procedural hurdles, and know your audiences’ needs and wants. Do all of that, add a fair dollop of experience and talent to master the atmospherics and you’ll be persuasive.
To highlight the advocacy difficulties faced by both sides let’s restrict the scenarios to two well known types: 1. The DNA and identification evidence is good so the only factual issue is ‘consent’; or, 2. The claimed event happened a long, long time ago. The victim claims excellent recall. The accused claims no recall at all. The claimed event is ‘fantasy’. In both these scenarios the victim and the accused have provided a statement to the police that has gone to the prosecutor and the defence advocate. While the victim’s statement is a mix of facts and allegations, the accused’s is much shorter - asserting consent in the first case and denial of the event ever occurring in the second.
The usual way in which these cases ‘play out’ is that the victim gives a short and sobbing version of what happened (such as, ‘I met the accused at a party. Later I just wanted to go home. The accused said they’d take me but instead forced her/himself upon me’.) Then the defence lawyer cross-examines so as to suggest that this version is just self-pity and embarrassment for being an easy lay, or is an invention arising from a desire for revenge, some form of madness, or both.
Occasionally the defence strikes it lucky and the victim puts on such a poor performance as witness that the accused can avoid giving evidence. That, though, is the exception. The atmospherics of the here and now is that when ‘consent’ and ‘fantasy’ are the defences then they’d better be substantiated from the mouth of the accused in the witness box.
So the decision maker and anyone in the public gallery gets to hear another short version that is shy of facts and long on assertion. Sometimes it is only slightly expanded from, ‘S/he was up for it, I mean s/he really was’, or, ‘I never laid a finger on them’. The prosecution cross-examines in a perfunctory way. The result is that the decision maker hardly gets to know the accused.
Whatever the decision maker was hoping for from these live characters (a titillating retelling of a date gone wrong, the drama of a family holiday or school camp turned nightmare, the quiet lodger who changes into the rapist etc.) it is likely to be a lot less compelling than they can find and enjoy in the romance, soft porn ‘literature and film’ they can access on their tablet. What they hear in court is so incomplete, even boring, that it’s quite likely that tablet material is privately inserted into the victim’s and the accused’s stories by the decision maker to fill in all the gaps.
‘Telling the story’ is recognised as an advocacy skill but how is that done in sex cases? Most of us don’t give details about our sex activities to outsiders. It’s enough, even when a relationship is over, to say, ‘They were good in bed’, or, ‘The bad sex was just one more reason to get out’. Nothing more is expected. The rest is left to the listener’s imagination. Even the braggers tend to restrict their tales to a small group of listeners that they expect to be impressed. ‘Telling the story of sex’ in a courtroom is an unnatural thing to do. Not only is the story being told to outsiders, it is being manipulated by advocates, and the time and place are not the teller’s choosing.
And then the advocates make it worse by looking towards the witness and expecting the witness to look at them.
Let us be clear: a witness, any witness, should be looking towards the person or people who matter in a courtroom. The decision makers, not the advocates, matter to a witness. Likewise the witness, not the advocates, matter to the decision makers. Therefore the witness should look towards, but not stare at, the decision maker.
The advocate glances at a witness to give reassurance to their own, and to pick up body language cues from any witness. Otherwise the advocate is looking towards the decision maker so as to evaluate their reaction to the questions and answers and to physically remind their witness to look in the same direction. [The exceptions are: 1. when the witness is so emotionally vulnerable that they must have sustained eye contact with their advocate; and, 2. when the witness is so confronting to the decision maker that the advocate deliberately attracts the decision maker to the advocate and away from the witness.]
Breaking of eye contact by witness and advocate brings advantages to both. For the witness the freedom from eye contact allows them to be less aware of the courtroom and so a bit freer to tell the story. For both witness and advocate the lack of eye contact allows both to focus upon the story that must, however unwillingly, be well and truly told. For the decision maker the ‘face on’ view of the witness gives them more connection to that witness, and an enhanced opportunity to weigh up how, for what and why a witness is believable.
For the advocate there are always multiple audiences at a trial. The advocate must recognise and do their best to respond to the emotional wants and the objective needs of each of them. Witnesses want to be believed. Decision makers want to have believable facts to which they can apply the objective criteria of the law. Both witnesses and decision makers want to feel respected. When the advocate ceases wanting to be the centre of attention those audiences benefit, and so does the advocate.
With the witness and their advocate freed from the expectation that they will look at each other, both are able to concentrate on the story that must be told. For both victim and accused it is essential that their advocate:
• is adept at creating visual images through the witness’s answers for the decision maker;
• gives the decision maker sufficient time - by being silent - to allow the decision maker to reflect on the answer;
• uses tone that is ‘right’ for the occasion and changes appropriately; and,
• is able to listen to, analyse and then apply the answers given by their witness.
Most advocates never acquire those skills. They are forever stuck at the level of the form of the question – both in their own questioning and recognising opportunities to object to an opponent’s question.
The direct examination of a victim or accused in a sex case requires the advocate to manage the witness so that the witness tells an interesting story in an incremental way that creates clear images in the mind of each decision maker. Usually this means that any earlier written statement by the witness will be both incomplete and will set out the events in a time driven order that will be boring to most listeners. The incompleteness is the result of those who write statements not understanding that it is facts not fact summaries or inferences that are evidence. The boredom reflects our listeners' short attention spans and the need to capture and then keep their interest by repeated drama jabs.
To succeed the advocate uses written statements as just a starting point. The advocate roughs out the story, picks a high point to start with, and another to finish, and marks the troublesome stuff to bury in the middle. The topics are now clear. When questioning on a topic the advocate must ‘see’ in their mind the 3D representation that is being described by the witness. That ‘sight’ is impossible if the advocate is maintaining eye contact with the witness. ‘Seeing’ the scene also allows the witness to be slightly removed from the embarrassment of telling this story in public. They too focus on the images, not the courtroom. It’s not enough for the witness to say that clothing came off. What matters is the detail of how it came off. That’s not one question. It may be quite a few when ‘consent’ is the issue at trial.
The prosecutor sits down. The defence advocate rises to cross the victim. An early gift is that the victim has told their poor story only to the prosecutor. The decision maker is at a distance and never looked into the face of the victim. The victim now looks at the defence advocate who silently thanks the prosecutor for bad witness management. Throughout the cross the victim will be re-victimised and the decision maker will only see the victim’s face when the victim needs to escape from the questioning, that is, seems to be caught out.
The defence advocate is about cross-indoctrination. Here is the chance to have the decision maker see another story, one that has the accused being acquitted. The cross starts wide, out at an innocuous place. There can be questions about going on a date, dates being followed by sex, all such questions re-setting the scene for each decision maker. That done then every factual hole in the victim’s story is an opportunity for a creative, but reasonable idea. ‘You told us that your clothes came off didn't you?’ ‘Let’s explore that’. And then follow a series of questions. ‘You took off your shoes?’ ‘You know the accused’s prints and DNA weren’t found on the shoes?’, nor, “ …on this or that piece of clothing?’ ‘You had them all on when you went in?’ “You had them all on when you left?’ ‘But in between you did…[this and that]?’
It’s a myth that a cross-examiner has to control a target witness by looking at them, just as it’s a myth that some kind of verbal aggression is the mark of good cross-examination. ‘Never be nasty until you have exhausted the benefits of being nice’ should be a mantra for all ‘about to strike’ cross-examiners. The decision making audience can be carried to the advocate’s destination on a boat of sweet reasonableness. Every so often there will be change of direction and a change of pace. The audience will take it all in. Surely, along the way the target may drown but there’s no reason to be triumphant about that. Pity is a better emotion.
For the fantasy defence it’s nice to be able to show that the victim’s timing is hopelessly wrong (eg. during that summer holiday the accused was a long way away). However, the problem that faces innocent and guilty alike for remote events is that they just don’t know where they were at the time of the alleged event. If they ever remembered then time has erased that memory. A technique for cross of the victim is a form of impeachment: ‘You’ve told your story as best you can remember?’ ‘Those are clear memories?’ ‘Memories that haunt you?’ ‘And yet, you didn't tell us about such and such, did you?’ ‘Surely you must remember that detail?’ These last questions become the refrain for all that is not remembered or was not disclosed during the direct. In the cross-indoctrinator’s fantasy world it all ends with the victim saying, ‘I can’t remember’, whereupon the advocates mutters, ‘Can’t remember or can’t invent?’ and is indifferent to the answer because the decision makers (at least enough of them to thwart a conviction) have already dismissed the witness.
When the prosecutor cross-examines an accused then the contrasting stories have been heard from both sides. The prosecution story should have been undermined by an early cross-indoctrination of the decision makers by the defence advocate’s cross of the victim. Since then the decision makers have also heard the accused’s version (that should, of course, match the cross-indoctrination). The prosecution must establish not only that the victim’s story is to be preferred but that it is to be preferred beyond a reasonable doubt.
If the prosecution advocacy on the direct of the victim was poor, and the defence presentation has been good, then the prosecution will fail. Their cross will look desperate, especially if the decision maker has had plenty of time to listen to the accused’s detailed account and watch the accused’s face. Just as governments are said to lose elections, rather than the opposition win them, so too do prosecutors lose cases, rather than the defence win them. In both cases the government or the prosecution throw away a position of strength. The opposing side fills the void.
Where the advocates are evenly matched then the prosecutor can reinforce the credibility of their victim by structuring the cross of the accused around the telling details of the victim’s memories. The embedded argument is that such details can’t be invented – they ring of truth. The decision maker needs to be lead to this position: acceptance of the victim’s story coupled with no need to decide if the accused has no memory or is faking no memory.
What of redirect? No mention of that so far and for good reason: it’s pointless when the horse has bolted. A good direct anticipates the cross and reduces the target size of the witness. Redirect is then a sparingly used tool, taking up the witness’s invitation to go there safely because during cross the witness uttered the phrase (rehearsed pre-trial) to the cross-examiner, ‘Would you like me to explain?’ The cross-examiner would not like that, but the witness’s advocate can return to the point, if necessary, without fear of failure.
Too many prosecutors and their assistants tell their victim witnesses that it will be hard to give evidence but the witness can do it, then fail to teach those witnesses how to do it. For so long as those prosecutors are wedded to the error that the witness and the advocate must look at each other and ignore the decision maker there is no hope. It’s not much better when the victim gives evidence by remote CCTV. Too often the victim is distracted by a monitor in their remote room, so that the decision makers see a witness who is not looking towards them.
The accused is in the courtroom. A good defence always shows those in the courtroom that there is teamwork between accused and their lawyers. If the defence advocate ignores the accused– as is often the case- then decision makers find it easy to see them as guilty. The defence advocate needs to show the decision maker that the accused matters, that the accused and the advocate respect the decision makers.
Questioning about sex brings atmospherics to the forefront of advocacy. Basic knowledge about how to form questions and make objections is too little skill. The atmospherics of a sexual assault case are ever present: advocates, of whatever side, who ignore the atmospherics deserve to lose, but their clients don't deserve that.
Hugh Selby ©