Updated 07 March 2014

Oscar trial: who stole the show?

Who stole the show in court this week? The witnesses, Oscar Pistorius, or Barry Roux? CyberShrink weighs in.

Cybershrink, with years of experience as an expert witness, highlights significant points from the opening days of the trial.

We had to squirm at the ridiculous problems that arose on Day 1, as the world watched, and we couldn’t find a good interpreter. Let’s at least be grateful they didn’t hire the guy who waved his hands at FNB during the Mandela Memorial. Maybe he was already busy.

The trial of the century?
Firstly, let’s avoid the foolish and description of this as the “Trial of the Century”. Which century? This one is far too new to have any idea what more sensational trials will emerge in the decades to come. And if you mean of the last century, up till now, what about the Nuremberg Trials, the Treason Trial and when Mandela was convicted, and so very many others. It’s a grandiose claim, proving the person saying it knows very little about trials or centuries.

Media coverage has grossly exaggerated the importance of some forensic sciences in I case. We know who did the shooting. At best ballistics and spatterologists could become important if their evidence strongly disproved major aspects of Oscar’s story of what happened. Otherwise, the real issue is WHY he shot and what was in his mind at the time, and that isn’t clarified by lab studies. Psychological expertise is needed.

Showing the witnesses
There has been excessive nervousness about showing witnesses, which I suspect has made witnesses unnecessarily fearful that this would be dangerous or damaging. And it was an over-reaction to ban the publication during the trial of any pictures whatever of witnesses, even if these were in the public domain and old. I don’t recall this being done in other countries, and indeed even a century or more ago, though photographs taken in court were banned, photos taken outside the court were published, and in court were sketch artists producing pictures of the court-room events for publication, and there were no objections.

Ironically, the one piece of real harm was the blurting out of one witness’s cell phone number, needlessly, leading to him receiving unpleasant calls. This could have happened in any ordinary trial - and was caused by the lawyer who led the objections to the televising of the trial!  

Here’s how trials really work
A great advantage of the showing of the trial has been that many people have begun to learn how real trials work, rather than the neat and tidied up versions seen in TV and movie dramas. There’s a special language some witnesses pick up from heavy exposure to lawyers: “ I dispute that…”, “refresh my memory”, “ I put it to you…” and so on. The pattern seems confusing.
When for whatever reason one witness is delayed or documents need to be sought, they can’t afford to waste the money the lawyers are costing them, so they slot in another witness who’s available. This means it can become a real challenge to keep track of a coherent story line when we hear parts of it out of sequence. Don’t imagine the long lunch and tea breaks are mainly about nourishment, or that adjourning early means everyone goes home and watches football - a great deal of hard work and preparation will be done during those times, which can’t be done during court sessions themselves.

Cross-examination, and very cross- examination
Many people seem to have been disturbed at how fierce and gruelling cross-Examination seems to be. It is, and I have encountered many advocates far more nasty and difficult than Mr Roux, though he can come across as condescending and annoying.

“ I don’t want to argue with you”, he argues. I’m not sure all his tactics have been effective, For instance, by pushing so hard and so repetitively, and without showing any genuine empathy, he made some witnesses resist his pointsstubbornly and adhere even stronger adherence to their own version of events.

Michelle Burger and Charl Johnson were sincere and convincing witnesses, but faced with his bullying style, they became more rigid. Michelle, for instance, reduced the scope of her vocabulary, and eventually kept on speaking of “petrifying” and “blood-curdling” screams.

Barry Roux gets annoying
There was an overlap that needed clarification between how the screams sounded, the impact they had on the listener, and what the witness assumed they meant. Feeling under attack, they became defensive, and rather than answering his questions simply and directly, they gave roundabout responses, talking round the point, enabling him to persist annoyingly.

As the prosecutor has often very correctly objected, Roux often challenges witnesses by stating the defendant’s claims and theories as facts, rather than as what they are. If there is to be firm evidence later to support these alternative views, this should be said: “ I will later lead evidence to show that …” ;  I will call a witness who will say…”

True picture emerging
Dr Stipp is even more impressive, confident and eloquent, and more resistant to badgering, mainly by remaining cool and thoughtful. Roux needs to shake and if possible discredit statements from witnesses which are highly inconvenient to or contradictory of, Oscar’s version of events. But as the state witnesses to the sounds and events of the crucial night are added, it becomes increasingly unlikely that they would all have made precisely the same errors.

There will surely be much evidence in time about the audibility of relevant sounds made in Oscar’s house. It seems they may have superstitiously chosen to conduct these tests on the exact anniversary of the tragedy, which may in fact be unreliable. The date was entirely irrelevant; what mattered was the weather, humidity and temperature.

As I have often seen before, some advocates unrealistically expect full consistency between every statement a witness makes and has made, and as we saw may spend hours trying to pursue or create inconsistencies. In fact, inconsistency between witnesses, or by the same person at different times is normal and re-assuring. It’s usually the liar who has carefully prepared and memorised his lies, who manages to be impressively consistent.

Special Oscar TV channel
Finally let’s consider the special Oscar TV channel, which fortunately seems to be settling down. It started very ADHD and jumpy, nervously flitting from item to item. They have had some very impressive and high quality guests with interesting things to say, and it’s a shame they have often constricted the time available to such great guests, and fill the time with repeated film of the empty courtroom, pompous music and needless graphics.

The worst have been the lousy continuity which often plagues DStv. Someone who doesn’t seem to be actually watching the programme at all, suddenly decides to shove in an advert, breaking in in the middle of an item or even a sentence. A vital legal point is being discussed and Bam, we’re shoved into the middle of a trailer for Jaws! This should not be tolerated by the directors. Additionally, the long and aggressive trailer for Fox Crime is tasteless within this context.

The other error has been the profoundly silly obsession with “the social media” which has been naïve and entirely unhelpful. They assume the number of tweets or “likes” on their Facebook page, means something important. It doesn’t . Absolutely nothing tweeted during the trial has been of the remotest interest or significance. What use is it for some twerp to tweet that “It is raining !” or that they think the boxer giving evidence is cute or has a disappointing haircut?

Still worse has been the emphasis on the daft “word cloud” diagrams, which senselessly depict the most commonly used words in the tweets about the trial. Have we learned something if they often mention the words Oscar, trial, and Pretoria? That’s like solemnly pointing out how many milk cartons bear the word “milk“.

Read more: Oscar:
Why the sick jokes?
Sportsmen in the dock


More by Cybershrink

2013-02-09 07:27



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