THE OSCAR PISTORIUS TRIAL: FAQS V.2

So it seems you weren’t all completely horrified by my first exploration into the world of blogging, and for the most part it seems the post was pretty well received (I actually had as many readers in the UK as I did locally for some obscure reason. Fortunately from that point of view, they don’t have access to channel 199, so some of the answers below which you local folk may already have become educated on, may very well still be unclear to them).  Thank you very much for the warm reception.

I have to admit, I felt I could have said so much more in the first post, and it is for that reason I have actually chosen to do these FAQ posts as a series of sorts. Having said that, I have a few ideas on a couple of other posts where I may try tie up the evidence that we’ve seen or heard to date and maybe in so doing, attempt to clarify how the said evidence affects (either positively or negatively) either side’s case (mainly stemming from the fact that my followers love asking who I think is “winning” at any given time). But, that subject matter is for another post, so lets in the meantime revisit some of the frequently asked Twitter questions, which hopefully we can deal with and then get some new material to quiz ourselves on.

1. Why do the witnesses keep saying “My Lady” after every answer?

I would assume this has been dealt with at length in other media, but I need to shed my 2 cents on this. Firstly, the reason it’s said is due to the fact that when a witness is in the box, he is actually giving his testimony to the court, the face of which is the presiding judge, who happens in this case to be a woman. In the case of a female judge, the correct and proper way of addressing her is “My Lady”, and in the case of a male judge “My Lord” or “Your Lordship”. The point that needs to be made though is that it’s got to the point of ludicrous in this trial, where every time a witness lets out even half an imperceptible squeak, he ends it with “My Lady”. It’s become laughable to the extreme, as every answer to a question asked by the male Nel or Roux, is answered as if they were both wearing ball gowns. The correct and very acceptable approach would be to answer their questions as if you were in conversation with them, and when (only when) the judge speaks directly to you, or you to her, then address her correctly. As a side note, magistrates in South Africa don’t get the same royal naming treatment as our judges, they are simply referred to as “Your Worship” whether male or female.

2. Does evidence “tampering” kill the case?

It must be understood that one of the best ways to attempt to reduce charges or even get an acquittal for your client, is to prove to the court that the police didn’t do their work properly. Although I concentrate mainly on commercial litigation matters, I have seen my fair share of drunk driving cases (it’s about as deep as I get into criminal trial world) where I have got my clients off (I do rebuke them for this deplorable behavior afterward, mind you) because the police haven’t handled the process correctly, particularly the issue of drawing and sampling blood within two hours of arrest. Well the same applies to the bigger charges, if the police did such an awful job in collecting and dealing with the evidence during the investigation process, the judge could elect to disregard the evidence of a certain witness altogether, thereby severely damaging the State’s case. But, it must be remembered the more serious the charge (pre-meditated murder is right at the top of the list) the more it takes to convince a court that the evidence is no good. Roux is doing his absolute best to dismantle the State’s expert’s evidence by attempting to expose to the court how badly the police have done their job (I get the feeling he rather enjoys the process). The question is, however, were their misgivings in evidence collection and investigation of such a serious nature that the accused should walk away from a murder charge?

3. Are trials always this slow?

In my 16 years of legal practice, the one issue I have always had difficulty in resolving is trying to explain to my clients and witnesses the difference between the mechanics of the South African trial process to that which they see in court TV shows such as Suits and Boston Legal. Believe me I wish it was more like the way it is portrayed in these shows, where the client walks into the attorney’s office, gives him the version, the next day they’re in court where the slick lawyer hands the missing serviette bearing the encrypted message to the witness, who is devastated and breaks down in the box, now bearing his soul to the court and revealing the truth, resulting in the judge smashing the gavel down HARD, case over, they all go for drinks….We don’t even have gavel.

No, in the real world there is months (even years) of case building, exchanging of legal pleadings and affidavits, postponements due to lack of courts or judges, missing court files, to name just a few of the daily litigation obstacles, (it’s worse in the civil world than in the criminal) and that’s prior to the trial actually running. At trial the process is measured, deliberate and meticulous, where every aspect of your version must be properly ventilated to the court and each facet of your opponent’s must be tested (Roux is the master), because once you close your case there’s no going back should you have missed something. The lawyers will be well prepared with the list of questions they wish to ask of every witness, and that list will grow as the witness starts giving his story. I’d suggest that this trial is moving at a pretty normal pace.

4. Can a person refuse to be a witness?

I would imagine that, having seen what Roux has done to these poor witnesses, I may struggle in future to get my clients to come to court to give evidence and go through a cross examination of their own. Couldn’t really blame them to be fair. The truth is though, that barring the issuing of a subpoena, a witness can refuse to come to court to give evidence. As an attorney, you certainly don’t want a witness in the box who feels manipulated or intimidated into coming, and consequent to that, then becomes objectionable and gives evidence against you rather than for you. As a rule you always want a witness in the box, knowing, in advance, exactly what his testimony is going to be. However, should a subpoena be issued for a witness, he simply cannot refuse to give evidence as he would be in breach of a court order and liable for prosecution for contempt of court.

5. Why does Roux keep saying “I put it to you”?

There is absolutely no doubt that these 5 words have overshadowed everything else in this trial, and will forever become part of the South African vernacular in the future. I can see it now, every time anyone accuses anyone else of anything ever again, they will do so by first putting to that person their argument and then awaiting the rebuttal argument. Just today my wife put it to me that I hadn’t taken out the trash because I was glued to channel 199!  But why is this? Why does Roux always have something to put to someone? Well the simple answer is, he has to. In order to answer this question we have to first establish what “it” is. “It” is his client’s version or evidence elements that make up the version. One could replace “I put it to you that” with “my client will testify that” or “my client’s evidence will show that”, whichever way you say it (personally I like to mix it up a bit, whereas Roux, well, one could say, doesn’t), it basically means that he is making his client’s case known to court, and testing whether that case / version can be reasonably argued against the state’s witnesses version (male vs female screaming voice, shots vs bat noises, I’m fine vs everything’s fine) . It’s also required of him to do it to every witness (that’s why it seems we’re stuck in an “I put it to you” wormhole) because if he doesn’t then that state witnesses evidence is unchallenged and will stand as accepted, which is obviously not good for Oscar.

Anyway that’s it for now. I think we’re getting to the really sensational and interesting part of the case now, where a lot of science will be used to establish what actually happened on the night. Hopefully I can also get to that evidence post over the weekend. Let me know what you think of this post, either here or on Twitter, and also keep the questions coming on twitter, I will always try my very best to answer everyone.  Cheers for now.

13 comments

  1. I put it to you, that your blog posts are very informative and answer all my questions and curiosities. I now want to register at Wits and study law, just so I can say “I put it to you that my client is …..”
    :D agh I’m too old for school!!

    But serioulsy it’s so good to actually see what goes on in our courts. This is both entertaining and educational for me, thanks for the blog too

  2. Reblogged this on Painting Mom and commented:
    I put it to you, that I am still an Oscar fan. Is that wrong? I think we shouldn’t judge, it’s not our place. But it’s human to always tell the referee that he is wrong, to tell the soccer player how to play the next move, to scream at politicians on TV and to just argue your point of view with gusto and conviction. Everyone else is wrong. Haha.
    I listen to people at work talking about this court case, they all law experts here!

    I put it to you…that you should read this blog, if you are hooked on #Oscartrial as I am. This is all very fascinating, educational and entertaining. Better than ‘law and order’ and all those others on TV. For now I’m a bit fixated with news and what’s going on in the court room. And I’m not going to apologise for wearing ear phones and listening in…

  3. Hi David. You have answered some of my twitter questions already – thanks for taking the trouble.
    Your blog is interesting, even though I already knew some of the answers as you surmised. On your UK readers, it’s probably just as well that they don’t have access to channel 199, as I suspect they would have great difficulty understanding some of the very pronounced “South African” accents that we locals understand more easily – I know my sister-in-law is one UK dweller who simply cannot understand someone who speaks with a strong Afrikaans “eccent”!

  4. Hi David, thanks again for the informative and enlightening post.

    Can the trial be aborted if the pros no longer feels confident in their case maybe to to assumptions made on police info that’s been damaged by the defense?

    I feel for Nel seeing that it seems he’ll lose, he won’t deserve the public humiliation of losing, people don’t know he’s beaten Roux twice before.

    What is your take? Do you foresee a comeback by the state or is it a lost cause?

    The defense and accused are increasingly looking cocky and arrogant.

  5. Explanations from a SA lawyer are very helpful to non-SA’s following the trial. I am aspiring to be an advocate but Roux is giving me a massive inferiority complex. He’s so clever as a genius on detail. I’m new to twitter and blogs. I won’t know how to find your new blogs on your interpretation on testimony & evidence. Please keep up the good work in enlightening all followers. Regards, James

  6. Hello David
    I am really livid after watching the 9pm “legal” panel tonight. They aired one of my questions which I had submitted to @Oscartrial199, out of concern for the quality of interpretation during the trial.
    I asked whether the judge is fully conversant in Afrikaans, and also which LANGUAGE version the judge would rely on when evaluating the EVIDENCE before delivering her verdict.
    The lady on the panel took over the entire discussion (which she has done before) and in MANY words (I only had 140 chars for my question) took pains to clarify the difference between interpreter and translator and how people seem to confuse the two. She basically abused her opportunity to air her views, was completely off the mark and highjacked the entire discussion. Ultimately, the interviewer was so overwhelmed that my question basically remained unanswered.
    I resort to you, with the opportunity to explain my concerns in more than 140 characters, for some sanity and a balanced and considered answer to my question.
    I am extremely concerned about the particular choice of words used by the court interpreter and simply want to know which language version of the evidence will be considered by the judge in coming to her decision in this particular case. Does she take both language versions into account?
    My question also stems from the extremely close cross examination of witnesses to date, right down to their choice of particular words in their evidence. I know this is the job of the defence advocate, but this is where interpretation may become crucial to evidence given.
    With this particular question in mind, I have grave concerns regarding all court cases in SA where the judge and other court officials are not necessarily conversant with the language (11 official languages!) of the person giving evidence and must rely completely on the interpreter – not good!
    Best Regards
    Mary

    1. Hi Mary, thanks for the comment. To allay your fears quite simply the judge will be fully Afrikaans conversant. She will have adjudicated maters held solely in Afrikaans (the courts still allow for fully English or Afrikaans trials), so the poorness of the interpreter is neither here nor there, ad she won’t have lost anything from the evidence due to poor translation. Hope that helps. (sorry for the delay in replying took the weekend off from Oscar :))

      1. Hi David. Thanks for your reassuring reply. I was extremely worried about the accuracy of language used in evidence given and whether finer details would get lost in translation! I agree we all needed a good long weekend off from the trial! I didn’t even tweet the whole weekend! Now we are fresh for the new round of evidence and discussions.

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