Adversarial Anxieties: Let’s not stop asking questions

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]

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About Richard Moorhead

Director of the Centre for Ethics and Law and Professor of Law and Professional Ethics at the Faculty of Laws, University College London with an interest in teaching and research on the legal ethics, the professions, legal aid, access to justice and the courts.
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15 Responses to Adversarial Anxieties: Let’s not stop asking questions

  1. Anonymous (name supplied) says:

    Absolutely nothing wrong with the adversarial system, nor that it was unfairly applied here.
    Questioning an accuser’s credibility and validity of the accusation is every defendant’s right, especially when there is no shortage of “victims” willing to spout false accusations of rape or historic sexual offences, spurred on by the no-questions-asked compensation culture.

    Sexual offences and historical sexual offences particularly, require virtually no burden of proof other than the “victim’s” word, unlike just about every other offence on the lawbook.
    So, continue questioning, probing and testing the complainant’s validity.
    I feel for this particular complainant, a lot more was going on to cause her to take her own life, as most don’t.
    And for the cries that she should have received counselling, that’s what Victim Support are there for.

  2. Anonymous (name supplied) says:

    “Prisoners who protest innocence and commit suicide in prison rarely have the luxury of being labelled innocent.”

    I would add that I’ve been through the justice system, and found it to be thoroughly wanting. Despite my accuser being caught lying in court on days 1 and 2, and shown to be lying, the jury disregarded the lack of evidence and convicted me of something I am innocent of, and it’s destroyed my life as a result. I’m only here because I have a good family, but it’s not without also relying heavily on psychiatrists and antidepressants.
    The media in this country uses every single day to publish reports and nurture bad feeling towards anyone unlucky enough to be accused of any sort of sexual offence, to the point where it’s virtually impossible to have a jury which doesn’t consist of already-biased bigots.
    As I found.
    You cannot expect a just trial if the jury merely disregard the evidence and adjudge with their preconceptions.
    The entire system needs an overhaul, not just for the victims, but for everyone. It’s not just accusers who accord the title “victims” of this farce.

  3. Irvin Waller says:

    It is time for UK justice, and particularly law teachers, to embrace a modicum of internationally recognized rights also for the victim. A good start would be specification of those rights in legislation and legally aided representation in criminal courts to defend them. See http://bit.ly/STvHrC

    • Anonymous (name supplied) says:

      Victims already have a modicum of rights. However, taking their word as gospel should not be one of them.
      There are too many liars out there.

      The question raised in this case is not that the victim was questioned harshly, but come on, how deluded/ill-informed was she? Commonsense tells you she only had to sit in on a rape trial herself to see how the line of questioning goes, even if the PLO failed to explain it to her.
      So she was called a liar and a fantasist. So what? I’ve been called a paedophile, which is FAR FAR worse, even more so when you’re innocent, yet I haven’t killed myself.

      I also question the logic of bringing a case in which the sole complainant is so fragile.
      The case should have been shelved until such time as she was a stronger person, or had had more information to hand so that this wouldn’t have come as the huge shock it did, or should have depended also on the testimony of the other victims in this case.
      Blaming the Barrister or the questioning is a knee-jerk reaction, not a logical one.

  4. TST says:

    Our Courts should also be taking account of the potential for cross examination to provoke flashbacks or trigger post traumatic stress disorder. The links between sexual abuse and PTSD or Complex PTSD are well established. It is also acknowledged that one of the most important issues for a victim is being believed. This is why being called a ‘fantasist’ has such a toxic impact on victims. Where is the evidence that calling a victim such names ensure justice?
    This is why cross examination of victims needs to be reconsidered.

  5. Nic Maurer says:

    It is also acknowledged that one of the most important issues for a DEFENDANT is being believed.

  6. Nic Maurer says:

    “Our Courts should also be taking account of the potential for cross examination to provoke flashbacks or trigger post traumatic stress disorder.”
    That is, unfortunately, the price you pay for testifying in court. No one forces you to. But to make an omelette you have to break an egg.
    You could have a Statement of Fact, which would save testifying, but a defendant has every right to contest it – and force you to testify – if they dispute the accusation.
    Sadly, there is no way to avoid testifying if you want to give your evidence.

  7. Pingback: Morning Round-Up: Monday 11 February | Legal Cheek

  8. Pingback: Liberté, égalité, fraternité: Professional Principles en France | Lawyer Watch

  9. Two points, if I may.

    First, as I understand it, the accused was acquitted of the rape. That seems to suggest that, in respect of that charge, the jury were unsure, even though they convicted of the sexual assaults. It is, of course, impossible to know why they did so. But it does seem to indicate that the system worked robustly enough to permit the jury to discriminate between the different allegations and, as a result, a man was acquitted of a serious charge. Whilst the death of a vulnerable person – linked to the trial process or not – is always a matter of regret, it must be the case that so too is the conviction of an innocent man.

    Secondly, it is now common ground that women who are raped do not behave as we would instinctively expect them to behave, or as they would expect to behave. The expert consensus is that human reactions to fear can lead to a submissive presentation, the aim being to preserve bodily health. Rape victims are frequently left distressed and perplexed by their own behaviour. It may be time for the Courts to permit evidence of such reactions, in much the way that other expert evidence is permitted. It would be difficult, because it would still have to be left to a jury to say whether that reaction was present in a particular case, but it may be an important tool to assist the jury to determine the truth. Given the jury’s verdict, it is impossible to say that this would have made a difference in this case and I do not make any such suggestion. Rather, if we are focussing on potential changes, this may be one to consider.

    • TST says:

      Unfortunately, there is much research that reveals that as a society attitudes are often swayed by pre-existing negative myths and stereotypes around rape and rape victims (smith & Frieze 2003, McMillan & Thomas 2009, Boher et al 2009, Moor & Farchi 2010, Grub & Tarn 2011) that lower empathy towards victims, and therefore expert evidence may be useful in presenting the range of different behaviours that a victim might display. However, I would go further and suggest that because of the complexities of such cases specialist courts should be introduced as in domestic violence.

  10. Alan says:

    Despite the reassurances by members of the profession and the judge that the adversarial system has worked as it should in this case, there is understandable public concern. Vulnerable witnesses are not a new challege for the system and the outcome is not one that the public is likely to consider as an indicator of a system that is fit for purpose. Barristers do owe other duties than to their clients and the Court. No lawyer may deceive or lie to a third party, including a witness. Lawyers may not demean or humiliate witnesses. All lawyers are required to be independent of their clients. From these duties, in other parts of the world efforts are being made to foster the belief that witnesses also have rights. There is no reason why we should not do so also. For example where a lawyer repeatedly tell a witness that they are a liar rather than the more eliptical ‘ I put it to you that you are a liar’ it might be argued that the lawyer risks giving the appearance that this is his viewpoint as well as his client’s. This could be an indication of insufficient independence from one’s client.
    Defence lawyers will probably say that their job is difficult enough. This case is an indicator , however, that we are still not doing enough to protect witenesses. The adversarial system relies on witnesses being willing to come forward. Particiapting as a lay witness ( as opposed to expert witness ) is rarely a pleasant experience without the adversarial system making it a much worse one.

  11. Nick Diable says:

    The one thing I’ve yet to hear from anyone is a suggestion about what system we use in place of the current one. Even in Europe criminal trials are adversarial.

  12. Joan says:

    In response to TST-yes, and asking a woman if she is a ‘fantasist’ -and not just a liar-plays into these myths and prejudices in a fairly unpleasant way. Could I just draw attention to the work of Ellison and Munro on these issues and reform suggestions (Ellison is at the School of Law, Leeds whilst Munro is at Nottingham)

  13. Winifred says:

    This website was… how do I say it? Relevant!!
    Finally I have found something which helped me. Thank
    you!

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