Resilience-building in Adversarial Trials: Witnesses, Special Measures and the Principle of Orality

Abstract

Using Fineman's vulnerability theory, this paper argues that the traditional adversarial approach to examining witnesses in criminal trials – premised on the principle of orality – reduces the resilience of those giving evidence. This is because the adversarial setting often leaves those testifying in a heightened state of stress, reducing the quality and reliability of their evidence as a result. In turn, this traditional approach to securing oral witness testimony in criminal trials loses resilience, in that it becomes more difficult to justify as the general approach. The use of special measures – to adjust the way testimony is given and ameliorate some of the associated stressors – provides resilience to the individual testifying, the robustness of their evidence, and the safety of consequent criminal verdicts. The positive effects special measures yield therefore lend additional resilience to our commitment to the principle of orality and the principles upon which it rests. This article concludes that the State should maximise such resilience-building through more generous special measures provision.