Back in November, I had the opportunity to fly to Melbourne (it didn’t feel like that much of an opportunity when I was clutching coffee at
Practical Deficiencies of Remote Video Evidence presented by Graham Turnbull SC of the NSW Bar
Graham Turnbull, a legal professional and researcher with over thirty years’ experience working as both a prosecutor and defence lawyer, put forward a case against remote video evidence in an engaging presentation. The current situation in some jurisdictions in Australia is that some complainants – for example those in cases of sexual assault and rape – are allowed to provide their testimony remotely via video, so they do not have to experience the pressures of the courtroom or the potential trauma of seeing their alleged perpetrator. Graham argued against allowing these witnesses to do this. Rather, he suggested that a cross-examination of the witness, when they are physically present in court, allows the jury to observe their demeanour, behaviour and their reactions. Mr Turnbull believes that this is important, as he argued that when a jury can see a witness’ behaviour and reactions, they get insight into how truthful their testimony is. He also made a very powerful statement by showing photos of the majesty of courtrooms around the world, with his message being that it is this majesty which “scares witnesses into telling the truth.”
Now, I personally did not agree with Graham’s argument, as the current understanding of psychological researchers is that it is extremely difficult for anyone, even professional “lie detectors”, to tell if someone is lying. Therefore, to have a witness present in the courtroom, just so the jury or the judge can observe them to see if they are lying, is quite redundant, and even detrimental to the justice process as it allows the judge or jury to look for cues of deception which research shows are not reliable or accurate (more to come later). Furthermore, placing the added pressure of a courtroom on a witness increases their chance of being more distressed, as even delivering a testimony via remote video can be a challenging ordeal. Julie Morrison discussed this when she elaborated on her work in giving sexual assault witnesses a support dog to assist in calming them while they deliver their testimony and are cross-examined by remote video (as of now, these support dogs are not allowed in the courtroom). However, even with my thoughts on Graham’s argument, there was a lot to take from his presentation, including how he presents to a conference audience. His ability to present a case is a testament to his career success as a prosecutor and defence lawyer.
What should sexual assault jury trials of the future look like? Presented by Judge Meryl Sexton, Kevin Doyle of the Office of Public Prosecutions, Associate Professor Yvette Tinsely (VUW) and Associate Professor Blake McKimmie (UQ)
After lunch (which was very yummy) there was a panel discussion on issues surrounding sexual assault jury trials, and innovations which can be made to allow for more positive treatment of the victim and increase the rate of conviction. Her Honour Judge Meryl Sexton opened to the assembled crowd by proclaiming that in her 17 years of working as a judge, sexual assault is the only crime where the behaviour of the plaintiff is brought into question at trial. Since the panel was made up of both legal professionals and psychological researchers, the discussion which followed reflected a diverse range of expertise, which meant that the problem and possible innovations could be inspected from multiple points. The first major problem to be discussed was that jurors are relying on inaccurate stereotypes about rape and consensual sex when making their decisions, with it being likely that their verdict is not solely based on the evidence presented to them at court. Possible solutions to implement at trial were then put forward by members of the panel and the audience, with Kevin Doyle, a crown prosecutor, suggesting that if sexual assault trials removed the jury and instead used a judge to decide on a verdict, then the overall conviction rate would increase. However, Blake McKimmie rebutted that by referencing research showing that judges rely on the same stereotypes as jurors in trials (see studies by Guthrie, Rachlinski, and Wistrich, 2001, 2005 and 2009). Meryl Sexton also agreed with Blake, saying that from what she knows about her colleagues, she would think that the conviction rate would not change if a judge-only trial format was to exclusively replace jury trials for sexual assault. Blake gave some final thoughts on this problem, and proposed that prosecutors may be able to present their evidence in a way which influences the jury to use stereotypes which will make them see the case as rape, and to avoid stereotypes which will make them see the case as consensual sex (which is what my PhD is focusing on).
At this point, the discussion on the panel shifted from the problem of the conviction rate in these cases and to the issue of the trial process re-traumatising alleged victims, making them feel like they are being “raped all over again”. Some thoughts from members of the panel were that rules may need to be introduced or better enforced to impede defence lawyers from asking questions or making observations during cross-examination that may further traumatise the complainant. However, this innovation was rebutted by members of the audience, who believed that it went against the very principles of the adversarial process (a positioned debate) and were uncomfortable about the fundamentals of the legal system being challenged. This led to comments that if jurors, as the deciders of fact, are not ready to dismiss tactics which blame the victim and disregard inaccurate stereotypes about rape, then we need to wait for society to progress in its thinking.
I, for
Does Rape Complainant Demeanour Influence Credibility? By Faye Nitschke, University of Queensland
Although I have had heard Faye present her research many times before, it was a new experience seeing her talk to a very different audience to that which we are used to. Faye was excellent in clearly stating the problem that exists in sexual assault trials where jurors are expecting to see an emotionally distressed witness. When this expectation is not met, jurors are then more likely to find the defendant not guilty, as they believe that the unemotional demeanour of the complainant indicates that they are not giving a truthful testimony. In reality, the witness’ emotional demeanour has no relevance on whether their testimony is truthful—an argument directly against that which Graham Turnbull made in his presentation.
Final Thoughts
Overall, attending the 2018 Australasian Jury Conference was an insightful experience and a great learning opportunity. I learnt so much within my own research area, as well as the great things happening in other areas of the legal system. One of the biggest eye-opening insights I had at the conference was the clear dichotomy of researchers’ and legal professionals’ thought processes, and how these differences in thought can lead to an effective evaluation of the problems facing our legal system. Summarising both can determine the best way to move forward in tackling those problems. Because at the end of the day, everyone at that conference had the same goal – to work tirelessly to make the legal system a more efficient process which benefits the population and brings justice for all.
