ABSTRACT
Lord Devlin once remarked that ‘the centrepiece of the adversary system is the oral trial’.87
The principle of orality states that evidence should normally be received through the live oral testimony of witnesses in court, speaking from their own direct knowledge. As noted in the previous chapter, although the use of documentary and real evidence does play a role in criminal proceedings, the adversarial trial is primarily geared to receiving evidence in oral form before an open court. The view that oral evidence is an intrinsically superior form of evidence is widely accepted within the courts and the legal profession. Its perceived advantages were outlined by the High Court of Australia in Butera v DPP:88
The principle of orality not only reflects the desirability of receiving testimony in person, but consists of a number of different limbs, as Dennis explains:
Yet, in spite of thesepurportedadvantages, the alleged superiority attached tooral evidence is something which is to be found uniquely in the Anglo-American common law tradition. In the view of McEwan:
Similarly, Spencer and Flin have argued that ‘our preference for oral evidence seems to be a purely cultural one. This preference is not shared by lawyers outside the English-speaking world’.92 The authors proceed to discuss a body of research which casts doubt on the assumption that oral testimony is more likely to produce reliable evidence. The authors’ concerns about oral evidence may be attributed to two major factors:
In addition to stress, psychologists have observed that memories are susceptible to changes over time, and become conflated with other real or imaginary events.94 Events are interpreted and re-interpreted over time, and the time gap between the events in question, giving a statement to the police, and then testifying at trial will often run into many months or even years. This is particularly true where the event in question was of a traumatic nature. Haward has illustrated how psychologists have acknowledged that the brain actively represses information about stressful past events, and will thus be engaged in a constant process of selecting, highlighting and deleting memories.95 Even though the vast majority of witnesses who testify in court may be giving a bona fide account according to theirmemory, theymay still bemistaken about all the facts or certain facts. Some, for one reason or another, may be subconsciously prejudiced or biased in the way they perceive past events,96 and somemayactively choose to bedishonest.Otherwitnesseswill be limited in their ability to articulate clearly what they recall, perhaps because of age, disability, or illness.97 The accounts of othersmay be adversely affected by a sense of ‘extreme eagerness’ to assist the police with their inquiries.98 Taking all of these factors into account, it is highly questionable whether oral testimony is really the most reliable method of accessing the truth about past events.
