The tragic death of Frances Andrade is being linked with her experience of the criminal justice system; both her cross-examination (see the Guardian story here) and alleged inadequacies in witness support (see the Evening Standard here). It’s fair to say that a causal link between Ms Andrade’s death and the trial is speculation; albeit highly plausible given the proximity of her death to the trial.
On what has emerged so far it is difficult to see that Defence Counsel did anything wrong. The cross-examination as reported in the Guardian simply suggests the defence being put to the witness, as it had to be.
When Kate Blackwell QC, Brewer’s barrister, alleged her account of being raped by the Brewers at their house was “utter fantasy”, Andrade loudly replied: “Bollocks”.
“You have told this jury a complete pack of lies about the visit to this house,” said Blackwell.
Andrade replied: “This is why cases don’t come to court. This happened.”
“You spent the night lying next to two of your rapists?” asked the barrister, referring to Andrade’s account of sleeping three in a bed with the Brewers after she said they had raped her.
Andrade answered: “But this happened. I felt guilty, I did not know how to get out of it.
“This is a lie,” said Blackwell. “You could have left the house at any time.”
Andrade replied: “You have got no idea clearly about what it is like to be raped. You have clearly no feminine understanding of what someone goes through like that. What shock your body goes through. How you almost feel you deserve it.”
Judge Martin Rudland said on Thursday that Blackwell had been “perfectly proper and correct in her examination of all the witnesses in this case”.
Barristers know very well their duty to “promote and protect fearlessly and by all proper and lawful means the lay client’s best interests and do so without regard to his own interests or to any consequences to himself or to any other person”. The absence of regard point, whether one supports it or not, is an important part of the obligation. Of course, “A barrister [also] has an overriding duty to the Court to act with independence in the interests of justice: he must assist the Court in the administration of justice and must not deceive or knowingly or recklessly mislead the Court.” The extent to which this restrains an individual barrister, defending a client with a defence that has to be (or the defendant wants) putting is very limited.
But accepting (on the details that have emerged so far) that what happened here accorded with the rules and culture of the justice system does not stop us asking broader questions. The model of adversarial zeal is justified on the basis it is the best known approach to protecting the rights (of the accused) and to finding out the truth. All sides of a dispute are aired without restraint and adjudicated upon is the basic idea. The strength of this truth claim is untested, in some senses untestable. We sense that sometimes it works and sometimes it does not but we rarely know. What we do know is that victims feel harmed by the process of cross-examination. That the approach of barristers appears, to them at least, to be a game, an attempt to humiliate and confuse rather than to test their evidence. But of course that is one side of the story only. Whilst our sympathies quite naturally lie in general terms with these witnesses, they do not always have a monopoly on truth. Prisoners who protest innocence and commit suicide in prison rarely have the luxury of being labelled innocent.
The concerns of victims, however, do I think mean we should look conscientiously at the probative value of cross-examination techniques. I was intrigued to read a study published by British Psychological Society, “Guidelines on Memory and the Law Recommendations from the Scientific Study of Human Memory”. It aims to provide, “a far more rigorously informed understanding of human memory than that available from commonly held beliefs. In this respect they give courts a much firmer basis for accurate decision-making.”
Consider these examples from the executive summary, and how an advocate might cross-examine against them:
“Memories are records of people’s experiences of events and are not a record of the events themselves. In this respect, they are unlike other recording media such as videos or audio recordings, to which they should not be compared.
“…memory is prone to error and is easily influenced by the recall environment, including police interviews and cross-examination in court.
“Memories are time- compressed fragmentary records of experience. Any account of a memory will feature forgotten details and gaps, and this must not be taken as any sort of indicator of accuracy. Accounts of memories that do not feature forgetting and gaps are highly unusual.
“Memories typically contain only a few highly specific details. Detailed recollection of the specific time and date of experiences is normally poor, as is highly specific information such as the precise recall of spoken conversations. As a general rule, a high degree of very specific detail in a long-term memory is unusual.
“Recall of a single or several highly specific details does not guarantee that a memory is accurate or even that it actually occurred. In general, the only way to establish the truth of a memory is with independent corroborating evidence.
[And so on, the report is well worth a read]
So this report suggests that, in terms of questioning witness credibility, one should be wary of comparing a witnesses recollection with other records; what they say in the police station compared with what is said in court; or labouring gaps in accounts. One should be wary of being persuaded by highly specific and detailed recall.
Some, if not all, of these lines of questioning are mainstays of defence cross-examination. And if memory is so uncertain, advocates are entitled to ask, “Are you seriously suggesting I cannot put these questions?” To which the answer (I imagine) is, “No, but are you seriously suggesting we should trust the answers that such questions produce?” That this leaves us in something of a Catch 22 is obvious but it also creates a little space within which we can develop some awareness of weaknesses in the assumptions upon which witness credibility evidence is founded. Perhaps that will encourage us to be a little less dismissive that harms caused by the justice system are simply an awful but necessary price to be paid. And perhaps we can find ways of looking constructively at how best to cross-examine, which does not assume either side has a monopoly on truth.
[A comment made to me is that calling some of these people “victims” prejudges the matter. It’s a fair point. I had in mind, though, those that have given evidence and the defendant had been convicted, i.e.not those that have lost their case]