ABSTRACT
For the vast majority of witnesses, the courtroom will be an unfamiliar and austere environment, dominated by lawyers and court offi cials. It is perhaps unsurprising that research has uncovered that many witnesses may fi nd the process of giving evidence alienating and stressful. 1 The formality of the procedure, the forbidding atmosphere, and the presence of wigs and gowns are likely to contribute to this general sense of unease, which results in many witnesses feeling like outsiders to a highly ritualised and professionalised process. 2
5.1 The experiences of vulnerable witnesses While feelings of stress, anxiety or consternation are commonplace among many witnesses with diverse characteristics testifying in very different types of case, it is well established that such emotions are likely to be exacerbated among certain classes of witness. There is a considerable body of research charting the plight of child witnesses, complainants in sexual cases, witnesses suffering from learning disabilities, and witnesses in fear of intimidation. Not only may their sense of despondency cause them undue distress before, during and after giving testimony, but from the point of view of the legal system, it may also negatively impact upon their ability to recall past events accurately. 3
5.1.1 Child witnesses It is, perhaps, overly obvious to state that many children fi nd coming to court extremely daunting and confusing. Research has shown that children experience considerable anxiety in the lead-up to a court appearance, as well as experiencing so-called ‘secondary victimisation’ while giving evidence. In their study of 218 children in 1992, Goodman et al. compared the behavioural disturbances of those who testifi ed with those who did not. 4 Of those who testifi ed, the researchers reported that confronting the defendant in court brought back traumatic memories, caused sleep disturbance, and exacerbated feelings of pain, hurt and helplessness. More specifi cally, the more frightened a child was of confronting the accused, the fewer questions the child would answer. 5
In particular, stress levels are exacerbated by the unfamiliar language used in court by barristers. Davies and Noon’s study of child witnesses in England found that 25 per cent of all questions were inappropriate to the witness’s age. 6 Brennan and Brennan’s survey of child witnesses in Australia identifi ed thirteen different linguistic devices that were used regularly to confuse child witnesses. The use of complex sentence structures and advanced vocabulary served to exacerbate the unfamiliar situation in which children found themselves, and the researchers found that questions were frequently highly stylised (e.g. ‘I put it to you . . .’; ‘I suggest to you . . .’) or employed complex grammatical structures involving negatives (e.g. ‘Now you did have a bruise, did you not, near one of your breasts?’; ‘Now this happened on a Friday, did it not?’). In the words of the researchers:
In 2004, a survey of fi fty child witnesses carried out on behalf of the NSPCC by Plotnikoff and Woolfson found that over half the children interviewed said that they did not understand some words or found some questions confusing. 8 Just fi ve of the child witnesses interviewed described defence lawyers as ‘polite’, but nineteen said the lawyers were not polite. Defence counsel were described as ‘aggressive’, ‘sarcastic’, ‘cross’, ‘shouting’, ‘rude’, ‘harassing’, ‘disrespectful’, ‘arrogant’, ‘overpowering’, ‘badgering’, ‘scary’ and ‘pushy’. Other studies have arrived at similar fi ndings. Cordon et al., for example, describe how advocates will frequently try to lure child witnesses into a false sense of security, by asking non-substantive questions about the child’s background and interests, before subtly moving on to elicit substantive information that contradicts the child’s original testimony. 9 They also present evidence that suggests that cross-examiners typically capitalise on children’s tendencies to be suggestible and to fantasise. The goal in many cross-examinations, they argue, is to ‘keep the child off balance to increase the chance of inconsistencies’. 10
5.1.2 Complainants in rape and sexual cases Trials for sexual offences differ from other criminal hearings in a number of respects. Often, the fact that intercourse actually took place is not a contested issue. Most rape cases usually turn upon the issue of consent, which can give rise to a number of evidential diffi culties, particularly where the complainant and the accused have previously engaged in a consensual sexual relationship. Since the complainant and the accused will usually be the only witnesses to the incident in question, rape trials frequently turn on a battle of credibility between the accused and the alleged victim. One of the main methods used by defence counsel to attack the character of the rape complainant is to suggest that she is sexually disreputable, alluding to loose moral values and a decadent lifestyle. By their very nature, sexual offences are notoriously invasive, and many victims will struggle with emotional and psychological consequences of victimisation for years to come. 11 Sex crimes carry a notoriously high attrition rate, 12 and it is thus particularly unfortunate that those who fi nd the courage to testify about their ordeal in open court will be subjected to character assassination.
