Slow-motion car crash of cross-examination

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IOL SAFRICA-PISTORIUS-_0304_11 REUTERS Barry Roux, lawyer for Olympic and Paralympic track star Oscar Pistorius. Picture: Siphiwe Sibeko

Pretoria - Barry Roux SC peered over his spectacles. He folded his hands and spoke as if he was Charl Johnson’s disappointed father.

“It’s not only about credibility, Mr Johnson, it’s about people that genuinely believe something happened. It’s a different question if it’s correct,” he said. “However, let us take the facts now.”

Following the trial from her home, Mia Swart’s mother told her she could not believe Roux spoke to witnesses like that.

But Swart, a University of Johannesburg law professor, knows there is nothing extraordinary about the bullying, aggression and even the “ripping to shreds” of evidence during a cross-examination.

“He is not unusual in any way,” said Professor Managay Reddi, dean and head of the school of law at the University of KwaZulu-Natal.

But for the layman who has never attended a murder trial, stuck in traffic hearing the witness’s voice getting heavy with self-doubt, the prospect of facing Roux or one of his colleagues is a scary one.

The dignified and intelligent Michelle Burger was left in tears. She said she and her husband had not wanted to come forward; they had wanted to stay away from the spotlight. They had given a statement out of a sense of moral obligation – weeks after the event. Perhaps they are now regretting it.

For the couch potato critics, myself included, seeing the slow-motion car crash that the cross-examination of a witness can become threatens to put us off ever appearing in court.

“It’s very normal for a very good advocate to cross-examine in a very aggressive way, but I don’t think seeing it will encourage people to come forward at all,” said Swart.

The question for the defence is: Can they prove you untruthful, unreliable or inconsistent?

The process of them trying to do that can be undignified for you, not to mention stressful.

Professor Stephen Tuson of the Wits School of Law uses the example of a bar fight. If the bartender bends down to get a beer from a low fridge at the moment the first punch is thrown, he may stand up to see the original victim retaliating and think he started the fight.

“You will swear under oath that the other guy started it because that’s what you saw,” he said. “You saw stuff and drew a conclusion.”

“Just because you are sincere and honest does not mean you are accurate,” says Tuson. “A witness may be telling things exactly as they perceived them, but may not have all the facts.

“A defence lawyer’s job is to test the reliability of the witness, that the witness’s testimony is not a mixture of fact and assumption,” he points out. “The degree of cross-examination depends on the degree of skill of the attorney.”

And Roux is very skilled.

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