Examination and cross-examination of victims and perpetrators

Zlatin has mounted a concerted attack on the scientific
basis of psychology and psychiatry and their ability to provide expertise to the courts. He has assailed both the clinical
methods and conclusions rendered by these mental health
professionals. To rebut expert testimony, Ziskin has proposed
general principles of cross-examination. We discuss
the limitations of this model and provide an initial study
of its effectiveness.

We examined 120 trial transcripts of 6- to 12-year-old children testifying to sexual abuse. Age and attorney role were analyzed in relation to question types, children's responsiveness and self-contradiction frequency. A total of 48,716 question–response pairs were identified. Attorneys used more closed-ended than open-ended prompts. Prosecutors used more invitations (3% vs. 0%), directives, and option-posing prompts than defense attorneys, who used more suggestive prompts than prosecutors. Children were more unresponsive to defense attorneys than to prosecutors. Self-contradictions were identified in 95% of the cases. Defense attorneys elicited more self-contradictions than prosecutors, but nearly all prosecutors (86%) elicited at least one self-contradiction. Suggestive questions elicited more self-contradictions than any other prompt type. There were no associations with age. These findings suggest that neither prosecutors nor defense attorneys question children in developmentally appropriate ways. Copyright © 2014 John Wiley & Sons, Ltd.

This constitutes the largest empirical study of the use of previous sexual behaviour evidence in sexual offence trials in the courts of England and Wales ever conducted. It is impossible to understand how such evidence is handled in trials merely from reading reported judgments, because these reflect only cases which the defence has appealed to the Court of Appeal on the basis that such evidence was wrongly excluded by the trial judge, since the prosecution does not have an equivalent right to seek leave to appeal. The data collected from criminal barristers examines, in depth, 377 cases involving 565 complainants, which proceeded to trial in 105 Crown Courts centres in the 24 months immediately prior to November 2017. This study is unique in collecting data on applications to use previous sexual behaviour evidence in respect of all sexual offences, not just rape, and without any restrictions on complainants as to gender or age. Many children and adolescents feature in the sample. So too do many historical complaints, and many cases involving multiple complainants. Perhaps most importantly, it is unique in eliciting information from the 140 anonymous barristers who were directly involved in prosecuting or defending these cases in the sample, and who know best what happened, not only in the public court room but also in the closed court room and in the robing room. They in turn are highly unusual in adversarial legal systems in ‘walking both sides of the street’, possible only due to the existence of the independent Bar, available to be instructed by the Crown Prosecution Service or by the defence in any case. They therefore have a uniquely balanced view of the criminal justice system.

This is the complete text of the commissioned Report. A refereed article entitled "Cross-examination of sexual assault complainants on previous sexual behaviour:
views from the barristers’ row" further analysing the results will be published in the Jan 2019 issue of the Criminal Law Review. The article will only be available on Westlaw to non-subscribers to the Crim LR.

Explains why it is usually necessary in the interests of justice to put the essence of the defence case to a vulnerable witness, in fairness to the witness and the jury. Provides examples of how to do this without calling the witness a liar and hence avoiding unncessary distress.

This paper examines the nature of our relationships with one another and asks in what sense and to what degree we are our “brothers’ keepers”. In raising these questions, I use a work of fiction, The Reader (1995) by Bernhard Schlink to see how our sense of responsibility for another is based on our memories of the past and extends to the present and the future. As the novel deals with post-war second generation’s attempt to come to terms with the Holocaust, it raises many questions such as, “How do we integrate our historical grievance into our collective biography?” Looking into the personal relationship between two main characters in the novel, I first challenge the stereotypical images of perpetrators and suggest the act of recognizing inhumanity in all of us, or “the banality of evil” as an alternative to our tendency to normalize the terrible and demonize the ordinary. Second, I discuss the limitations of law in relation to the female character’s secret illiteracy. In lieu of legalism and moral mediocrity, I present what Solzhenitsyn referred to as “higher human possibilities”, which appeal to human dignity prior to human rights. Lastly, I discuss the role of the humanities in recovering the sense of the divine in us and nurturing global citizens, who should be neither spineless cosmopolitans nor narcissistic nationalists. I conclude this paper by suggesting re-defining our “home” as a way to include our vulnerability and transcend the generational guilt or victimhood.

Apstrakt:

Početkom primene novog Zakonika o krivičnom postupku oktobra 2013. godine u znatnoj meri je preoblikovana fizionomija krivičnog postupka u Republici Srbiji. Naime, primenom novog ZKP-a u pravosudni sistem Republike Srbije uveden je model krivičnog pravosuđa koji ima više elemenata anglo-saksonskog sistema. Glavne novine ogledaju se u konceptu tužilačke istrage i adverzalnom postupku na glavnom pretresu. I dok je naučna i stručna javnost uglavnom zaokupljena pažnjom u vezi novina koje se tiču predistražnog i istražnog postupka, mišljenja smo da posebnu pažnju treba posvetiti i novinama vezanim za glavni pretres, a posebno fazi izvođenja dokaza, jer upravo novine u ovom segmentu krivičnog postupka će najverovatnije izazvati mnogo problema u njihovoj praktičnoj primeni. S tim u vezi, u radu ćemo ukazati na osobenosti glavnog pretresa prema pravilima novog ZKP-a, naročito u fazi izvođenja dokaza, a zatim ćemo posebnu pažnju posvetiti instututu unakrsnog ispitivanja.

Ključne reči: glavni pretres, izvođenje dokaza, osnovno ispitivanje, unakrsno ispitivanje, dopunsko ispitivanje.