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Published: Tuesday, 2014/03/11
COMMENTS have been made that the admittedly excellent cross-examination by Barry Roux in the Oscar Pistorius trial has left the prosecution case floundering. Here are some alternative insights.
1. What is to be made of the fact that witnesses have contradicted each other?
Three witnesses have testified that they heard screaming and sounds like gunshots. Their accounts differ from one another in detail such as the number of shots, the time pauses between the sounds, the order in which the screams and shots occurred, the nature of the sounds and so on. Does this mean that one or all of them are unreliable, and that their testimony must be rejected in its entirety?
Human beings all differ from one another in their abilities to receive information through perceptory senses, interpret it, store it away in their brains and later retrieve it. Our characters, backgrounds and general disposition to dramatic events also influence the amount of weight, or importance we attach to an item of information.
Recently, my wife and I were discussing a social event we had attended some time ago. She was able to recall detail such as the style and colour of the hostess’s dress and decorative arrangements on the dining-room table. I could remember none of that. But I did remember detail of a conversation I had with one of the guests about selections to the Proteas cricket team.
The point is that if we had later been called on to testify about the occasion, my testimony would have differed from hers in a number of items of detail. It is, therefore, to be expected that different people will describe an account differently and even, in some instances, differ with one another in their recollection of detail.
In S vs Ngcobo (1986), Judge J.N. Didcott referred to an experiment done in the U.S. some years ago. The television viewers of the nightly news on a particular channel were treated to a staged handbag-snatching incident. The film showed a young woman walking in a passageway. A man wearing a leather jacket, who had been lurking in the background, suddenly ran towards the woman, grabbed her handbag and knocked her down. For a second or two he ran face forward towards the camera. The entire incident lasted 12 seconds. An identification parade, which included that attacker and five others who resembled him, was then presented. Viewers were invited to make an identification of the attacker, having been told that he might or might not be included in the line-up. Over 2 000 calls came in. Only 14,1% made the correct identification. The judge remarked that a blind guess statistically would have had a 14,3% chance of being correct.
It is, therefore, to be expected that witnesses will differ from one another in a certain amount of detail. These differences enhance, rather than detract from, the credibility of a witness.
The prosecution clearly want to prove that the woman’s screams came before the shooting. If differences are shown to exist as to when exactly the screaming occurred, the court may still be in a position to make a factual finding on the point when it considers all the evidence in its totality. In other words, if it were proved that Reeva Steenkamp locked the toilet door and that she carried her cellphone with her into the toilet, these facts could assist in rendering one or more of the witness testimonies more probable than another (or the others).
2. If it has been shown that a witness has been untruthful in one respect, does it mean that the court must reject his or her testimony in its entirety?
Roux engaged the first two witnesses extensively on the striking similarities in their police statements. He attacked their credibility in so far as their claims of not having collaborated (or even spoken about the event) is concerned. He will no doubt argue that they are not to be believed. He may go so far as to argue that the evidence of Michelle Burger and her husband should be rejected in its entirety.
There is a maxim, sometimes quoted in our law, which goes like this: falsum in uno, falsum in omnibus. Loosely translated it means that if a story is false in one respect, it must be false in all respects. The maxim does not correctly reflect the way our courts approach those situations. The courts have said that in proper circumstances it is permissible to accept a portion of the evidence of a witness, but to reject another part of it.
3. Objective evidence and the probabilities are likely to play a decisive role.
This trial has shown just how fragile witness testimony can be. The crucial importance of objective evidence will soon become clear.
Evidence relating to the injuries to the body of Steenkamp, the trajectory of the bullets that were fired, and records of cellphone calls made or received, are matters about which there will be far less room to create doubt.
Then there will be the probabilities. In all likelihood, Pistorius will have to take the witness stand. He is the only living person who truly knows what happened that night.
We already know his version of events in broad outline. He will be cross-examined in great detail about his movements in the house and the decisions he made at the time.
It is going to be suggested to him that it is improbable that he would not first have verified Steenkamp’s whereabouts before going after an intruder; that given his disability it is improbable that he would have gone forward to confront an intruder rather than try and hide from him; that it is improbable that he would have told the security inspector that things inside his house were “fine”, unless he had something he wanted to hide; that it is improbable that Steenkamp would have locked herself in the toilet unless she was trying to escape from him; and so on.
The court will attach considerable weight to the probabilities. The court is likely to follow the English philosopher Hume’s assertion that the “great a priori improbability of some assertions outweighs the force of testimony otherwise reliable”.
Patrick Stilwell is an attorney and professional arbitrator who recently published a book on cross examination.