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Updated 11 March 2014

The absurdities of the Oscar trial

Cybershrink worries about a perversion of medical ethics and also about legal absurdities in the Oscar trial..

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Cybershrink worries about a perversion of medical ethics and legal absurdities.

If one of the purposes of broadcasting the proceedings of this trial was to show that the system is healthy and works well, and that the rich are treated exactly the same as the poor, then it has already failed utterly.

Never before has any black or poor accused or indeed victim, received the peculiarly special and favoured attentions we have seen, especially in the way the pathologist’s objections to testifying in public were handled by everyone concerned.

Read more: Oscar trial: who stole the show?

If the prosecutor or defence had applied for the trial to be held in camera, in secret, this would definitely have been refused by the court, as none of the special conditions under which this properly rare procedure is used, apply here.

Read more: Blood spatter analysis

Objections invalid
Firstly, Professor Saayman’s unique objections to testifying in public have been accepted without objection or proper examination, though they are invalid. Firstly, one must wonder why, if the good doctor had any concerns about testifying under the already odd rules that had been established, why on earth was it left, literally, to the very last minute, before these were announced to the court?

How did he come to suddenly experience such strange concerns so late, long after the rules set up by the court were well-known? Surely nothing had changed which could have influenced him to suddenly think of such worries, and surely if he had expressed such concerns to the lawyers as soon as he knew he would testify, it would have been raised and discussed in court before he arrived there.

Addled ‘ethics’
His explanation based on principles of medical ethics I found frankly absurd. No such concern with proper justification on ethical grounds has been raised or  decided on before, but then, in all fairness, few trials are televised. If something is televised, it means children could see this, unless parents block the channel using the parental control function. But as far as I know, children are not barred from attending court proceedings.

Pathologists have given highly explicit and detailed evidence in many thousands of cases before, in inquests, and courts at all levels, before the public and unrestricted reporters, without any one expressing worry or any perceptible problem being caused.

Special treatment for celebs?
Far more gruesome details have been delivered in even recent cases, without problems. Why are the concerns of the family of a model and an athlete being protected more carefully than the feelings of the families of the slain Marikana miners? Here was no objection by pathologists or others to the revelations of the far more gruesome injuries in the Anene Booysen trial. But of course none of them were rich celebrities with high-powered lawyers.

If he had prepared properly, why did he not quote very specifically the “ethical rules” and “statutory limits” he felt restricted him - and could he explain why these have never ever caused him a problem before now? Is there so much of a  difference between testimony being given in open court, and testimony being televised? After all, if viewers find something too gruesome, there is an ‘off’ switch on the TV.

TV viewers desensitised
It has become far too easy for medical witnesses to bamboozle courts by claiming issues of medical ethics, without sufficiently clarifying their arguments, let alone with the cross-examination that is indicated. It is not right for prosecution and defence to immediately roll over and agree, and assume that the arguments are valid. The principles of medical ethics he quoted are just not relevant to this situation. Besides, the average TV viewer has become so desensitised to what goes on inside pathology labs, given the graphic programmes broadcast on the crime channels on DStv.

Let’s be clear about some of the potent issues. Reeva is not and never has been, Dr Saayman’s patient, and he owes her no duty of doctor-patient confidentiality. Proper medical testimony does not ever compromise the dignity of the deceased, and the dignity of the deceased’s family and friends is and should be, utterly irrelevant to the doctor and the court, and they have no ‘rights’in this regard that outweigh all other rights. No evidence has been restricted in other cases out of concern for self-declared friends of the deceased. The evidence would have been in no way any more ‘personal’ than what he has given in previous trials.

His evidence would be expert pathological facts and opinions, expressed in complex medical jargon and not in any vulgar or clumsy way, and would surely be done in good taste. It in no way damages “the good morals of society” as he mentioned. I doubt any of the media intended to show the graphic pictures that may have been shown to the court, and that could easily have been guaranteed.

Dangerous precedents set
The careful judgment of Judge Mlambo concerned the dignity of witnesses (something which though usually treated with respect) has not been specifically protected in previous major or minor cases. To now insist that any possible quivers among friends of the victim must be sternly prevented is a bizarre and unique point in law, and establishes dangerous precedents and risks to broad and important principles of justice.

They have now established a system of pre-censorship only matched at times by the very worst of the efforts of the apartheid courts to protect the people from learning ugly facts about what was happening.

It's clear none of the lawyers actually understand how even the old media work,’let alone the new and social media. Banning tweets is a very new and questionable rule, and may just not be practical. Can a journalist SMS or send e-mails, if forbidden a tweet? Can a member of the public tweet? Tweets, etc., are used in other trials with no objection whatever.  Is it better for people to have to rely on hastily hand-written notes (or can one type on ones smartphone or laptop if not sending messages from it at the time?) rather than on a transcript of accurate broadcast of exactly what is said?

It would have been better for media freedom and justice had there been no application to televise this trial, as the nervous rulings it is giving rise to, set us back to precedents we have only seen in the heart of the apartheid era. As in those days, people will wonder what is being hidden, even if the nothing is actually being hidden.

Read more: Why is Oscar vomiting?

Professor MA Simpson is Health24's CyberShrink. A South African psychiatrist, he qualified in medicine and in psychiatry in Britain. He has been a senior academic, researcher, and Professor in several countries. Read more of his columns.

 
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