Use of Alternative Ways of Giving Evidence by Vulnerable Witnesses: Current Proposals, Issues and Challenges

Abstract

Fifteen years after the New Zealand Law Commission rejected pre-trial recording of cross-examination, that proposal is back on the reform agenda. Drawing from research examining comparative pre-trial and trial practices in cases of sexual offending, this article discusses the backdrop to the debate surrounding pre-recording, including the provisions of the Evidence Act 2006 and the approach of the courts to alternative ways of giving evidence. The benefits and drawbacks of pre-trial recording of evidence for adult witnesses are canvassed – including practical, evidential and psychological issues – leading to the conclusion that rather than a presumption in favour of any particular alternative way of giving evidence, close consideration of the individual circumstances of each case is required.

Enriching trial justice for crime victims in common law systems

“…In contrast to continental Europe, most Anglo-American criminal trial systems are adversarial in nature and have been succinctly characterized as a 'sharp clash of proofs presented by litigants in a highly structured forensic setting' (Landsman, 1984: 2). There is no shortage of literature documenting the plight of victims in their capacities as witnesses (Bala et al, 2010;Commissioner for Victims and Witnesses in England and Wales, 2011;Ellison 2001;Spencer and Lamb, 2012;Tinsley and McDonald, 2011); their exclusion from proceedings (Fielding, 2006;Rock, 1993;Shapland et al, 1985); their inability to participate in any meaningful way (Roberts and Erez, 2010;Shapland and Hall, 2010;Wemmers, 2009) and the lack of opportunity to seek either symbolic or material redress (Davis, 1992;Doak, 2008;Williams, 2005). Despite the expansion of protective measures for vulnerable witnesses and various schemes enabling victims to exercise a voice in criminal sentencing, adversarialism and bipartisanship remain firmly ingrained in the mechanics of the common law criminal trial.…”

A ‘Special’ Delivery? Exploring the Impact of Screens, Live-Links and Video-Recorded Evidence on Mock Juror Deliberation in Rape Trials

“…Concerns have also been expressed regarding the extent to which the use of video-recorded police statements as evidence-in-chief places sexual offence complainants at a disadvantage, since officers are engaged at that stage in an investigatory process, receiving and pursuing fresh information as the account unfolds. This means that these accounts lack the kind of logical, sequential narrative that can be imposed by advocates who take the complainant through her testimony in the courtroom (Davis et al, 1999; Tinsley and McDonald, 2011; Wade et al, 1998; Welbourne, 2002). It was in the light of these latter concerns, and evidence suggesting that many video-recorded statements are of poor visual quality and exhibit inadequate police interviewing techniques, that Baroness Stern concluded in her recent investigation of rape prosecutions in England and Wales that their use was posing problems for the smooth running of trials and needed to be further reviewed (Stern, 2010; see also HMCPSI/HMIC, 2007).…”