Evidence: testimonial evidence

  • Testimonial evidence is given orally by the witness in court.
  • Testimonial evidence is also known as:
    • oral evidence;
    • verbal evidence;
    • testimony; and
    • witness evidence.
  • Testimonial evidence is the primary form of evidence in common law adversarial trials.
    • Documentary evidence is being used increasingly in civil trials (as distinct from criminal trials).
  • The UEL has rules for witness testimony: pt 2.1.
  • Testimonial evidence is preferred in the adversarial system because:
    • the evidence is given under oath or affirmation;
    • the evidence is given directly from the witness’s mouth;
    • counsel can control the presentation of the evidence by questions;
    • the reliability of the evidence may be tested by cross-examination; and
    • the veracity of the evidence may be assessed by the witness’s demeanour.

Key features of testimonial evidence

Testimonial evidence is given under oath or affirmation

  • Oaths and affirmations are essentially promises to tell the truth in court.
  • Swearing an oath or affirmation to tell the truth makes the witness liable to a charge of perjury (punishable by imprisonment) if they lie in court.
  • Some witnesses (such as children) may give unsworn evidence, which permits them to give evidence but does not make them liable to a charge of perjury if they lie.
  • There is no difference between taking an oath or making a promise (affirmation), but those who take an oath may believe they will be punished by God if they lie.

Testimonial evidence is given directly from witnesses’ mouths

  • It is believed by many that:
    • hearing the evidence directly from eyewitnesses (from memory) rather than through documents (such as statements) allows for the best evidence; and
    • hearing what happened from a witness is the closest a trier of fact will come to having experienced the fact directly.
  • Awareness of the serious defects in this model of evidence is increasing:
    • The fragility of human memory means testimonial evidence given months or years after events can be very unreliable because memories fade and become distorted over time.
    • Research indicates human observation of events is highly inaccurate.
    • Testimonial evidence is very time-consuming.
      • This is exacerbated when interpreters are required.
      • However, efficiency should not be determinative in a system that seeks to find the truth in the most fair and open way possible.

Presentation of testimonial evidence is controlled by Counsel

  • Evidence is given in Court through a question and answer form.
  • Each witness is called in turn, examined, then cross-examined.
  • Witnesses cannot ordinarily tell their story without interruption.
    • This can sometimes distort the evidence because it is given in the order that counsel thinks most useful to their case, rather than the way in which people ordinarily recount stories.
  • Witnesses give their evidence in one go; there is no switching between evidence so as to present the evidence in a chronological manner, and witnesses are not normally recalled.
  • There is now provision for evidence to be given in ‘narrative form’ in some circumstances.

Testimonial evidence is tested through cross-examination

  • Questioning of witnesses by counsel is a hallmark of the adversarial system.
  • It has long been thought of as one of the best mechanisms for discovering the truth.
  • It allows counsel to draw out inconsistencies in a witness’s evidence or to expose lies.
  • The value of cross-examination may be over-estimated:
    • Different people respond to cross-examination differently.
    • Some witnesses are inherently vulnerable to cross-examination:
      • They may be perceived as telling lies when they have simply succumbed to clever techniques.
    • Giving evidence in court can be nerve-wracking for witnesses.
    • Those who are less vulnerable may give evidence that appears more credible than it might actually be be (such as regular witnesses like police officers).
  • The vulnerability of witnesses is a very real problem:
    • People communicate and respond to questioning differently depending on age, culture and personality.
    • Judges and juries are not always aware of the differences and the effects they can have on the appearance of truthfulness.
    • Measures have been taken to temper the problem including giving pre-recorded evidence or evidence via CCTV.

The veracity of testimonial evidence is assessed through witnesses’ demeanours

  • It is thought that by watching a witness giving evidence the trier of fact can determine the truthfulness from their behaviour, including body language and mannerisms.
  • Studies show that the ability of humans to detect lies is essentially no better than chance, despite people thinking they are good at knowing when someone is lying.

Outline of key provisions of the Evidence Act 1995 (NSW) concerning testimonial evidence

  • Part 2.1
    • Division 1 — competence and compellability of witnesses
      • Section 12 — competence and compellability
      • Section 13 — competence: lack of capacity
      • Section 14 — compellability: reduced capacity
      • Section 17 — competence and compellability in criminal proceedings
      • Section 18 — compellability … in criminal proceedings generally
      • Section 19 — compellability … in certain criminal proceedings
    • Division 3 — general rules about giving evidence
      • Section 26 — court’s control over questioning of witnesses
      • Section 27 — parties may question witnesses
      • Section 28 — order of examination in chief, cross-examination and re-examination
      • Section 29 — manner and form of questioning witnesses and their response

Verbal evidence in court

These notes drawn from Francine Feld, Theo Alexander and Mirko Bagaric, Uniform Evidence Law: Principles and Practice (CCH, 2nd ed, 2015) ch 3 [3.1]–[3.2.4].

  • Verbal evidence is the most common form of evidence given in courts.
  • Verbal evidence usually involves a person physically appearing and expressing their perception of the relevant event.

Attendance

  • Attendance is normally time consuming, inconvenient and stressful.
  • The importance of verbal evidence is so great that people can be compelled to attend court through a subpoena stamped by the relevant court and served on an individual.
  • The subpoena contains the relevant matter and the date upon which attendance is required.
  • Refusal to attend can result in a charge of contempt of court, which can be penalised with imprisonment.
  • All those served with a subpoena become witnesses.
  • Apart from voting, attending court is the only compulsory activity that all citizens must undertake when requested.
  • A subpoena is not always necessary: many individuals attend voluntarily for various reasons.
  • Subpoenas are served where a party is not certain that an individual will attend court.
  • Police and prosecution agencies subpoena all witnesses as a matter of policy.

Choosing witnesses

  • A party’s most important consideration when determining whether to call a person as a witnesses is whether the evidence they give will be favourable to the case.
  • Best practice is to interview the prospective witness beforehand and request they sign a document detailing their account to predict what the witness will say in court.
  • It is rare for a witness to renege, but if they do the statement may be used to discredit them.

Competence and compellability

  • Competence and compellability are related but distinct concepts:
    • Competence focuses on who is qualified to give evidence in court.
    • Compellability focuses on who can be forced to give evidence.
  • The general rule is that all individuals are both competent and compellable, but may be subject to certain exceptions.

Lack of capacity under UEL s 13

  • It is presumed that a person is competent unless the contrary is proved.
  • Young people and the mentally impaired are deemed not competent.
    • All adults not suffering any type of manifest mental impairment are presumed competent.
  • A person is not competent to give evidence about a fact if, for any reason (including mental, intellectual or physical disability), they cannot overcome an incapacity to:
    • understand a question about the fact; or
    • give an answer that can be understood to a question about the fact.
  • This does not prevent them from being competent on other facts.
  • The legislation provides for two types of testimonial evidence:
    • sworn evidence; and
    • unsworn evidence.
  • A person is not competent to give sworn evidence about a fact if they do not have the capacity to understand that they are under an obligation to give truthful evidence.
  • A person who is incompetent to give sworn evidence may give unsworn evidence if the court has told them that:
    • it is important to tell the truth;
    • they may be asked questions that they do not know or remember the answer to, and should tell the court if this occurs; and
    • they may be asked questions that suggest certain statements are true or untrue and that they should agree with the statements that they believe are true and should feel no pressure to agree with statements they believe are untrue.
  • Sworn and unsworn evidence do not seem to be different in qualitative terms.
    • Unsworn evidence has probative weight and the UEL does not state that it is necessarily a lower type of evidence.
  • The level of cognitive ability is similar for sworn and unsworn evidence.
    • Both require that the witness has capacity to understand and answer relevant questions.
    • A witness must understand they have an obligation to tell the truth in order to give sworn evidence, but if they cannot comprehend this they may still be able to understand and answer questions, and therefore give unsworn evidence.
      • The requirement that the judge inform the unsworn witness to tell the truth seems futile given they cannot comprehend a duty to tell the truth.
    • The witness must be able to give answers that can be understood.
  • Although the legislation contains relatively simple tests, there are no objective standards governing witness capacity (such as to understand the concept of ‘obligation’).
    • Ultimately, issues of competence are determined by the impressionistic views of the judges regarding the intelligence and articulation of prospective witnesses.
    • The main criteria that govern the application of the tests and the age of the child or apparent intelligence of the witness — precedent is of little value.
  • This area of law could be improved by removing the uncertainty, and using fixed age and scientifically-determined IQ thresholds for competence.
    • Where the criteria are met but the person remains unable to comprehend the notion of truth, no or little importance should be given to their evidence.

Compellability

  • Subject to certain exceptions, all competent witnesses are compellable.
  • The less common (‘minor’) exceptions to compellability include:
    • The Queen, her representatives, and the leaders of other countries: UEL s 15(1).
    • Members of an Australian Parliament, if court attendance would prevent them attending a sitting of Parliament: UEL s 15(2).
    • Judges and jurors, unless in the case of jurors the matter could affect the conduct of the proceeding: UEL s 16.
    • Circumstances where it is likely that capacity to give evidence could only be achieved after considerable cost or delay, and the subject matter of the evidence has already been obtained from another person: UEL s 14.
  • Family members of the accused are not compellable:
    • Family members of the accused may apply to the judge to be excluded from giving evidence under UEL s 18:
      • This only applies to criminal proceedings.
      • The spouse, de facto partner, parent or child may object to being required to give evidence generally, or evidence of a communication between the person and the accused as a witness for the prosecution.
      • The Court must grant the application if it finds that harm would be likely be caused to the prospective witness or to the relationship, the nature and extent of which outweighs the desirability of the evidence being adduced in court.
      • The Court may take into account:
        • the nature and gravity of the offence;
        • the substance and importance of any evidence that the person might give and the weight that is likely attached to it;
        • whether any other evidence concerning the matters to which the evidence would relate is reasonably available to the prosecutor;
        • the nature of the relationship; and
        • whether the person would have to disclose matter received in confidence.
    • UEL s 18 has no application to certain offences against children: UEL s 19.
    • UEL s 18 recognises that if a family member gives evidence against the accused it may be viewed by the accused as a betrayal — the rationale for the provision is loyalty.
      • Loyalty is a desirable virtue, and one that should be promoted by law: see, eg, Mirko Bagaric and Richard Haigh, ‘Loyalty and the Law: Dealing Legally with Mothers, Archbishops and Football Clubs’ (2001) 10 Nottingham Law Journal (UK) 1.
      • Although such an emphasis is placed on loyalty, in practice applications for exclusion nearly always fail — judges rank the need for evidence above the interests of the relationship: see, eg, R v Flentjar (No 2) [2008] NSWSC 648; R v Fowler [2000] NSWCCA 342. Cf DPP v Nicholls [2010] VSC 397 (the only case where an application was upheld, but the Court still admitted a written statement by the spouse against the accused).
  • The accused cannot be compelled to give evidence.
    • This is based on the long-protected notion of the right against self-incrimination.
    • UEL s 17 deals with competence and compellability of the accused in criminal proceedings:
      • It only applies to criminal proceedings.
      • It excludes an accused from competency to give evidence for the prosecution.
      • It excludes an associated accused from competence for or against the accused, unless being tried separately from the accused.
        • An associated accused is a person who has been charged with an offence that relates to the offence for which the accused has been prosecuted, where prosecution has not been finalised: UEL pt 1 Dictionary.
    • UEL s 20 permits the judge or non-prosecuting party to comment on a failure of the accused to give evidence:
      • It only applies in a criminal proceeding for an indictable offence.
      • Unless the comment is made by another accused in the proceeding, the comment must not suggest that the accused failed to give evidence because they were, or believed they were, guilty.
    • UEL ss 17, 20 confer the right of silence on an accused at trial.
      • This right also exists at the pre-trial stage: UEL s 89.
      • The right has been modified in New South Wales: Evidence Act 1995 (NSW) s 89A.

Presentation of witness testimony

These notes drawn from Jill Hunter and Kathryn Cronin, Evidence, Advocacy and Ethical Practice: a Criminal Trial Commentary (Butterworths, 1995) 301–13.

  • The presentation of information in court typically involves the prosecution opening its case by setting the factual scene and summarising the evidence that supports its case.
    • The prosecution calls its witnesses, who are questioned and then cross-examined by the defence in turn.
    • When the prosecution has closed its case, the defence case follows similarly.
  • Information is not presented in a chronological story format.
    • The question-and-answer format results in fragments of information that jurors arrange into the story as the evidence unfolds.
    • Jurors must order and understand the details presented.
    • The narrative style introduced by the prosecution does not reappear until the defence opens its case.
  • Final summation is a recap of the cases by the parties and then by the judge.

Question-and-answer and narrative forms

  • The Australian Law Reform Commission suggested that the narrative form may be preferable, citing psychological studies that indicate the question-and-answer form can distort the content of witnesses’ testimony: Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) vol 1 [607]–[609].
  • The earlier Marquis study found that questioning promoted recollection and more complete witness accounts, more than compensating for distortions caused: K H Marquis, J Marshall and S Oskamp, ‘Testimonial Validity as a Function of Question: Form, Atmosphere and Item Difficulty’ (1972) 2 Journal of Applied Social Psychology 167.
  • Lind et al found that the narrative style creates an impression of more credible witnesses than the fragmented question-and-answer format: E A Lind et al, ‘Social Attributions and Conversation: Style in Trial Testimony’ (1978) 36 Journal of Personality and Social Psychology 1558.
    • Control of witnesses is perceived as reflecting counsel’s low evaluation of the witness, and greater freedom in testifying is taken to correlate with a high opinion of the witness.
  • The research therefore suggests that:
    • the approach to eliciting testimony influences content, completeness and reception; and
    • directed testimony can increase recall at the expensive of accuracy and credibility;
  • The value of the studies is uncertain due to the experimental settings that fail to replicate the courtroom context and dynamics of lawyer-witness interaction.
  • The Australian Law Reform Commission recommended use of narrative form where appropriate.
  • The legislation allows for a party to have its witnesses testify in narrative form, subject to the Court’s approval: UEL s 29.
    • A party may question a witness in any way it thinks fit, subject to ch 2 and directions of the Court.
    • The Court may direct a witness to give evidence wholly or partly in narrative form.
      • The Court may direct this:
        • on its own motion; or
        • on application of the party who called the witness.
    • The direction may include directions about the way in which evidence is to be given.
    • Evidence may be given with explanatory material if the material would be likely to aid comprehension of other evidence.
  • Under UEL s 26, the Court may make orders regarding witnesses ‘as it considers just’ in relation to:
    • the way witnesses are to be questioned;
    • the order in which they testify;
    • the presence of behaviour ‘of any person in connection with the questioning of witnesses’; and
    • the production of documents and things in connection with the questioning of witnesses.

Party control of witnesses

  • Justice Peter Young, ‘Practical Evidence: Unresponsive Answers’ (1991) 65 Australian Law Journal 344:

    Each experienced counsel … acquaints witnesses with the way … they should behave when being cross examined. It is fairly common for counsel … to tell the witness that [they] must listen to the question asked and then answer that question, and only that question, as briefly as possible. Many counsel tell witnesses that they should answer ‘Yes’ or ‘No’ to the questions in cross-examination: unless they consider that such an answer might be misunderstood, in which case as brief an answer as possible must be given. The witness is reminded that the usual consequence of a long-winded answer is that the cross-examiner gains more ammunition to fire back at the witness than would have been the case had the witness kept the answer brief.

  • The law reinforces the desirability of party control to such an extent that if a witness is ‘out of control’ and volunteers information unresponsively, the Court is obliged to strike out the answer if requested by counsel.
  • In A Judge of District Courts; Ex Parte McNamara (1990) 48 A Crim R 660 (Queensland Supreme Court, Full Court):
    • The prosecution sought pre-trial orders to suppress the identity of a complainant it intended to call as a witness.
    • The trial involved a charge of official corruption by police officers relating to a prostitution ‘protection racket’.
    • The witness wished to have her identity concealed because she feared publicity would cause embarrassment by revealing she had worked as a prostitute in the past.
    • McPherson J cited evidence law commentators and 19th century English case law that demonstrated common law resistance to protecting witnesses from embarrassment.

      He or she is exposed to scrutiny in the witness-box not as an “airy nothing” but as an identifiable person with a local habitation and a name.

      It may be asked whether a person should or need be subjected to the ordeal envisaged by the complainant here. The question was at one time the subject of extensive debate by textwriters on the law of evidence. Wigmore on Evidence (Chadbourne revised ed), Vol IIIA, … points out (859, [986]) that a privilege against “disgracing answers” clearly existed in the early 1700s; ‘but in some obscure way the privilege fell into disuse, and its exercise was not revived again until the beginning of the 1800s’.

      By 1853 Starkie’s treatise had reached its fourth edition, in which (207–8) the opposing considerations are lucidly stated:

      it is highly desirable that the jury should thoroughly understand the character of the persons on whose credit they are to decide upon the property and lives of others; and neither life nor property ought to be placed in competition with a doubtful and contingent injury to the feelings of individual eyewitnesses. On the other hand, it may be said that it is hard that a witness should be obliged upon oath to accused himself of a crime, or even to disgrace himself in the eyes of the public; that it is a harsh alternative to compel a man to destroy his own character, or to commit perjury; that it is impolite to expose a witness to so great a temptation; and that it must operate as a great discouragement to witnesses, to oblige them to give an account of the most secret transactions of their lives before a public tribunal.

    • McPherson J refused the suppression order, but left it open for the trial judge to make an order at the trial.
    • His Honour summarised the reluctance of courts to keep witness identities secret:

      Whether [the witness] will maintain her determination [not to testify if her identity is disclosed] in the face of the assembled trial court remains to be seen. It may be salutary for her, and for the integrity of the legal system, if she be asked to give her name in the presence of the jury. If she then declines to do so the jury may find her refusal to answer of assistance in assessing her credibility. The judge at trial may then need to decide whether he should commit her for contempt, or can extend to her some measure of the protection that she now claims.

  • Kicking back against lawyers or tactics of control may be ill-judged or intemperate, thus damaging the party’s case.
    • It may justify admonition from the judge or from counsel.
    • Control of counsel by judges and control of witnesses by counsel, while presented as aiding mutual comprehension, may have the incidental effect of being coercive and humiliating for the person being rebuked: Robyn Penman, ‘Facework and Politeness: Multiple Goals in Courtroom Discourse’ (1990) 9 Journal of Language and Social Psychology 15.
    • Witnesses can, sometimes, successfully challenge the trial process by subtle non-cooperation.
  • Social psychological studies have indicated the following factors influence perceptions of witnesses as reliable and truthful:
    • social attractiveness;
    • the speed of speech;
    • gender;
    • accent or dialect; and
    • confidence that is displayed in answering questions.
  • Similarly, studies suggest the following affect the way jurors may interpret testimony:
    • the format of questioning;
    • different speech styles; and
    • the appearance of participants.
  • Social psychology research can be used to enhance advocacy goals.
  • Bennett and Feldman’s thesis on ‘storytelling’ is that jurors arrange trial information into a narrative framework and then evaluate it with the plot as the centrepiece: W L Bennett and M S Feldman, Reconstructing Reality in the Courtroom (Rutgers University Press, 1984).
    • Given the prosecutor’s opening statement is the first time that the jury hears a possible narrative plot, they may have already settled on the story before the defence has an opportunity to present its narrative.
    • The prosecution presents first because the prosecution has the burden of proof, but this may be a significant persuasive advantage.
  • Courts are willing to suppress the identity of a limited range of witnesses:
    • Victims of blackmail on the basis that to do otherwise would make it difficult to prosecute for the offence: Socialist Worker Printers and Publishers Ltd; Ex parte A-G [1975] QB 637, 650.
    • Informers: Cain v Glass (No 2) (1985) 3 NSWLR 230, 246–247; Re v Savvas (1989) 43 A Crim R 331.
    • An accused wishing to avoid publicity that might adversely affect a pending murder trial: Re Mr C (1993) 67 A Crim R 562.
    • Children: see, eg, Children (Criminal Proceedings) Act 1987 (NSW) s 11.

Issues of communication for witnesses

  • Until 1731, proceedings in England were pleaded in English, argued in French, and the Court’s decrees were enrolled in Latin: see P W Young and M W Young, ‘Legal Language’ (1990) 64 Australian Law Journal 761.
    • English courts would go to considerable lengths to provide interpreters for non-English defendants: see, eg, R v Borosky (1682) 9 Cob St Tr 1.
  • In 1731, English became the language of the courts: Proceedings in Courts of Justice Act 1730, 4 Geo 2, c 26.
    • The Act stated that ‘many and great mischiefs do frequently happen … from the proceeding in courts of Justice being in an unknown language, those who are summoned and impleaded having no knowledge or understanding of what is alleged for or against them’.
    • NSW and Victoria are the only states where the 1731 Act has been repealed.
  • Fairness in court proceedings requires that they be understood by all involved.
    • A judge or magistrate may translate a non-English document which has been put into evidence, but procedural fairness requires that the translation be put to the parties: Zoeller v Federal Republic of Germany (1989) 91 ALR 341.
  • An interpreter has the task of removing linguistic and cultural barriers that prevent a witness understanding or communicating in the proceedings.
    • This is most common where the witness does not speak English.
    • This may also occur where the witness is deaf or mute: see, eg, Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414.
  • Non-English speakers have participated in criminal trials in Australia since early times, coming from a wide variety of European, Asian and Pacific cultures.
  • Witnesses who do not speak English have the right to have questions put in their own language and their answers interpreted: see, eg, Dairy Farmers Cooperative Milk Co Ltd v Acquilina (1963) 109 CLR 458, 464; R v Johnson (1987) 25 A Crim R 433 (Queensland Court of Criminal Appeal); Gradidge v Grace Bros Pty Ltd (1988) 93 FLR 414 [18]–[19]. See also P W Young and M W Young, ‘Legal Language’ (1990) 64 Australian Law Journal 761; A Crouch, ‘The Way, the Truth, and the Right to Interpreters in Court’ (1985) 59 Law Institute Journal of Victoria 687.
    • This was previously at the discretion of the trial judge.
    • Court practice and statutory amendments have shown an appreciation of the need to assist trial participants.
  • Use of interpreters is not without controversy.
    • Hatzigeorgalis v Ange (No 1) (Unreported, Supreme Court of New South Wales Equity Division, Young J, 27 March 1991) demonstrated this:
      • A Greek-speaking witness claimed that questioning conducted with the interpreter and questioner speaking at the same time was distracting and unfair, and requested that the counsel punctuate their sentences with pauses to permit partial translations during questioning.
      • Young J rejected the request on the basis that the distraction should be taken into account by the listener and that interpretation in the manner requested could lead to an abuse of the right to use an interpreter by allowing the witness extra time to answer a difficult question if they understand some English.
        • This criticism is recurring in relation to the use of interpreters.
  • Interpreters have significant limits in resolving communication difficulties:
    • There is debate about how interpreters fix on the meaning of words.
    • Some interpreters may not give an accurate interpretation of the speaker’s words.
    • A literal translation is not necessarily more precise than a conceptual translation: Australian Law Reform Commission, Evidence, Interim Report No 26 (1985) vol 1 [284].
      • In a trial involving a charge of sexual assault, the wife of the accused was asked ‘Is your husband infatuated with your daughter [the complainant]?’ which was translated literally as ‘Does your husband love his daughter?’; the wife answered affirmatively.
  • Cross-cultural misinterpretations are not always remedied by interpreters:
    • D Eades, Aboriginal English and the Law (Queensland Law Society Continuing Legal Education Department, 1992) 26:

      Aboriginal English speakers often agree to a question even if they do not understand it. That is, when Aboriginal people say ‘yes’ in answer to a question it often does not mean ‘I agree with what you are asking me’. Instead it often means ‘I think that if I say “yes” you will see that I am obliging, and socially amenable and you will think well of me, and things will work out between us’.

    • ‘… silence … can easily be misinterpreted as evasion, ignorance, confusion, insolence or even guilt’ in the courtroom, but do not have the same interpretation in Aboriginal culture.
    • Direct eye contact is associated with honesty and confidence in Anglo-based middle class cultures, but in other cultures this may not be the case — averting eye contact can communicate recognition of authority instead.
  • Counsel will often fail to anticipate potential linguistic or cultural misunderstandings.
    • Where they are anticipated, it is acceptable to discuss with the interpreter their understanding of the term and ensures they can translate accurately.
  • Research indicates that child witnesses appear more effective and competent (‘[a]nswered more questions, were less anxious and unhappy and generally more cooperative’) when language was tailored to their level of comprehension: J Cashmore and K Bussey, ‘Child Witnesses in Court’ (1989) 1 Judicial Officers Bulletin 3.
  • Cross-examination may challenge testimony, and some lawyers may attempt to confuse a witness in cross-examination.
  • Children may have particular difficulties with the specific vocabulary used by lawyers (such as the words ‘taunt’ and ‘fabrication’, and forms of legal address, idioms and double negatives), as well as complex and repetitive questions: M Brennan and R Brennan, Strange Language: Child Victims Under Cross Examination (RMIHE, 1988).
  • Legal language employed by lawyers often uses phrases like ‘is that not true?’ or ‘is that not right’ which can have a confusing effect.
  • Jumping between topics and shifting from highly personal to mundane questions can cause the witness to become disorientated and confused about the general line of questioning.
  • According to M Brennan and R Brennan, Strange Language: Child Victims Under Cross Examination (RMIHE, 1988) 66, by nominalising language to preserve their clients’ distance from the criminal activity being investigated, lawyers may also confuse children in particular:

    … young children … are being asked to answer questions about the details of their assault as though they had been watching rather than participating. Given the highly personal and traumatic aura which surrounds incidents of child sexual assault, the process of nominalisation can only be construed as adding to the language pressures exerted on the child in court.

  • Lawyers often ask long, complicated, multifaceted and unclear questions with a ‘convoluted preamble, confused centres and rhetorical endings which invite no response’, though an answer is still required: M Brennan and R Brennan, Strange Language: Child Victims Under Cross Examination (RMIHE, 1988) 66.
  • Witnesses can have difficulty understanding what is expected of them when counsel use their previous statements in a questioning format, prefaced by phrases such as ‘I put it to you’ or ‘I suggest to you’.
    • This is a particular problem for children who are often expected to recall exact words uttered during events that took place long before the trial, and are constrained to give a yes or no answer.
  • Children feel resentment if a judge does not intervene to protect them from ‘totally irrelevant things’ and should avoid being made to feel alienated.
  • In some jurisdictions special arrangements can be made for particularly vulnerable witnesses such as children under a certain age and persons with intellectual impairment or cultural differences, to mitigate the traumas associated with testifying.
    • This may include screening the accused from the witness, allowing a support person to accompany the witness, or recording the witness’ evidence.
      • These methods do not address communication difficulties, however.
  • The basic rules for questioning immature, non-native English speaking, intellectually incapacitated, or otherwise impaired witnesses are to:
    • use simple, direct and specific questions;
    • favour the concrete over the abstract, direct over the circular, and use active rather than passive voice;
    • introduce unfamiliar words first, before using them in a question — ensure the witness understands what the words mean before putting them into context, and then asking the question.
    • avoid parenthetic asides;
    • limit each question to one point;
    • avoid asking the witness to make general comparisons directly — allow the tribunal to draw the comparisons; and
    • put questions relating to length of time, frequency, etc, into the concrete: this may involve breaking the inquiry into several questions such as ‘did you see him in December?’ and ‘did he come each week?’

Problems with witness testimony

False memories

These notes are derived from ABC Television, ‘False Memories’, Catalyst, 18 March 2010 (Dr Jonica Newby) <http://www.abc.net.au/catalyst/stories/2848614.htm>.

  • It can be possible for accusers to vividly remember something that never happened, and false memories can easily be created.
  • In 2002, defrocked Catholic priest Paul Shanley became the ‘most hated man’ in Massachusetts.
  • Shanley was convicted of serial child abuse in 2005 and imprisoned.
  • In the Shanley case, the prosecution dropped three of four alleged victims, leaving one to testify.
  • The jury was confident enough to convict, and Shanley was sentenced.
  • The accuser claimed the events were so traumatic that he had walled off the memory in his mind, having no recollection of the abuse until he was an adult, when he saw reports of Shanley in the news and the memories came flooding back.
  • Associate Professor James Chu of the Harvard Medical School claims that victims of repeated abuse are much more likely to block it out eventually than if it has only happened once or twice.
    • According to one theory on repression there is some kind of process, itself unconscious, that makes things that are too overwhelming or too conflictual unavailable to a person’s conscious memory.
    • Other scientists say that there is no good evidence that memory repression exists.
  • Professor Elizabeth Loftus of the University of California, Irvine claims that there is very little credible scientific evidence in support of memory repression.
    • A multi-study analysis of 11,000 victims of torture and other major trauma found no cases of memory repression.
    • Regardless of how logical the theory may sound, it is allegedly flimsy.
    • Professor Loftus does not suggest that the victim did not believe what they said, but that false memories are easy to implant, and that there is almost a recipe for doing so:
      • make a person believe that an experience is plausible;
      • try to get the person to believe it happened to them; and
      • embellish the belief with sensory detail, engage them in imagination exercises; something that will add detail to that belief.
    • Professor Loftus can implant a false memory of being sick after eating strawberry ice cream in about 25% of subjects.
  • According to Associate Professor Chu, there were many things that made the victim’s evidence believable such as memories of shapes, archways and the room where the abuse occurred.
  • Professor Richard McNally of Harvard University suggests that ‘alien abductees’ are experiencing an episode of isolated sleep paralysis, accompanied by hallucinations upon awakening.
    • People who experience this may seek out ‘experts’ in ‘alien abduction’, be hypnotised and start to generate imagery of what happened next, causing vivid memories of being in ‘spaceships’, being sexually probed, having intercourse with aliens, and so on.
    • Alien abductees have very pronounced psychophysiological reactions to abduction scripts of a magnitude at least as great as with childhood abuse survivors, war veterans, and combat-related post-traumatic stress disorder.
    • The false memories of trauma are just as powerful as the genuine memories.
    • Professor McNally sees no evidence that the mind can repress trauma.
      • The more traumatic the event is at the time, the more likely you are to remember it, especially if it is repeated: you don’t find people forgetting they were in Auschwitz.
  • The ‘Memory Wars’ have two sides:
    • One side holds that repeated traumatic events can be walled off in the mind.
    • The other side says repression is not possible.
  • Professor Loftus alleges that there were anomalies in the victim’s testimony in the Shanley case.
    • When first informed of the accusations, the victim’s reaction was surprise.
    • The victim learned that somebody he used to know was making accusations.
    • The victim went to see a doctor in the military and spent a long time with them.
    • There was a lot of suggestion in the story as the victim went from having no memory to having ‘memory of years of brutalisation supposed repressed.’
  • According to Robert Shaw Jnr (Paul Shanley’s attorney), the victim wondered to himself in a personal journal whether it had actually happened, or whether he merely thought it had happened because it happened to a friend of his.
  • All four victims claimed repressed memory.
  • Shaw ran Shanley’s appeal on the basis of lack of scientific support for repressed memory, ‘the only evidence against him.’
    • Professors Loftus and McNally, as well as a further 100 memory experts, signed a brief to the effect that repressed memory had no scientific basis.
  • The 2009 appeal had three possibilities:
    • the victim had lied;
    • the victim was telling the truth, but had repressed the memories; or
    • the victim has a false memory.
  • Repressed memory is the least scientifically-supported hypothesis.
  • The appeal was dismissed on the basis that the Court did not find anything problematic with admitting evidence of repressed memory.

Unreliability of eyewitness testimony

These notes are derived from WFMY News, ‘Eyewitness Testimony’, 9 February 2004 <https://www.youtube.com/watch?v=LRVtYqUcXk4>.

  • To test the accuracy of witness testimony, WFMY conducted an experiment.
  • A person walks into a full lecture theatre and takes the professor’s briefcase.
  • The students were asked to describe the perpetrator.
    • Most students accurately remembered the perpetrator’s clothes, but many did not.
    • Few students remember the perpetrator’s face and hair colour and length.
  • The professor brought the perpetrator in, but claimed he was bluffing and the person was not the perpetrator.
    • Very few students believed it was the same person.
  • Investigators can knowingly or unknowingly influence eyewitnesses.

These notes are derived from Experimental Psychology, ‘Change Blindness’ <https://www.youtube.com/watch?v=38XO7ac9eSs>.

  • An experiment by psychologists Dan Simons and Chris Chabris revealed that the human brain processes very little of what comes in through the eyes.
  • Outline of the experiment:
    • The subject comes up to the counter and is handed a consent form by the first experimenter.
    • As soon as the consent form is signed the subject hands it back to the first experimenter.
    • The first experimenter ducks under the counter to put the form away.
    • The second experimenter then stands up and hands the subject a packet of information and directs the subject into a hallway to be asked questions about it.
    • In 75% of cases, subjects will not notice the change between the experimenters: this is called ‘change blindness’.
    • Humans often miss significant changes to our visual world from one view to the next.
    • These changes are obvious to people who know they are going to happen.
  • Some people notice the changes, and others don’t, but it is unclear whether this is because some people are simply better at recognising changes, or whether it is because some people happen to be paying attention to a particular detail that changes.