Did these lawyers go too far? Witness kills herself due to &#x27;stress of trial&#x27;

Original post by InnerTemple

It would certainly be an unusual line of questioning. Even if you established that a window was open, it would do nothing for your client - the offence of burglary has still been committed.

In a rape trial, however, if you as counsel could establish that the victim had flirting with the defendant and had been a little drunk and had been acting in a (sexually) provocative way towards the the defendant... then you would get the jury thinking "hmm, maybe she did want sex" or "hmm, maybe it is reasonable for Mr Defendant to have thought she wanted sex" and consent, of course, is the key factor in rape.

What I'm getting at is that the reason why lawyers try these types of attacks on rape victims or alleged rape victims is that they know that amongst many jurors, the old line that "she was gagging for it" or "she deserved it" still works. On the other hand, it is clear that rape is sometimes a borderline accusation (eg, rape when the rapist and victim have previously had sexual relations, etc) so presumably there do need to be investigations of the motives and disposition of the "victim". It's just that sometimes it's clear that these stereotypes are being cynically manipulated by lawyers.

Reply 42

Original post by Fullofsurprises

Suicide is surely the act of very depressed people with a vulnerability in that area? Obviously courts can't screen witnesses to see if they are at risk, but it is troubling if the two are related.

There does in general seem to still be an atmosphere of "blame the victim" though in some rape cases I've read about and perhaps in this one, although we haven't heard all the background. Just for the sake of comparison, when someone is up for burglary, do the barristers accuse the home owner of being the sort of loose, irresponsible person who leaves a window open and therefore fully deserves to be burgled by the nasty little robber on trial?

Not in burglary.

But look at a case of a student accused of taking a conveyance without the owner's consent from another student; TWOCing as it is called. Most motor vehicle taking is charged as TWOCing and not theft because there is no intention to deprive the owner of the vehicle permanently.

In a TWOCing case, it may well be appropriate to show that the owner allowed others to drive his car without specifically asking, that he left his car keys lying around and that he did not complain when when others had used his car or when the accused had used his car on other occasions.

That is a property law offence equivalent of the girl in a miniskirt and heels who sleeps around.

The victim has the right to control what happens to his car in the same way that a woman has the right to control what happens to her body, but their respective behaviours are evidence as to whether it is likely that consent was or was not given.

Reply 43

InnerTemple

Original post by Fullofsurprises

Surely in the real world, barristers (I nearly typed "baristas" lol) are fully aware of the client who is obviously guilty as hell, even if they don't come right out and say it to them. I suspect it makes no difference in cases like this - the lawyer needs to earn a (very good) living and they have their potential to win future cases to think about.

Sad truth is that there is a degree of amoral self-serving ruthlessness coming through from lawyers in these cases.

Of course. However it is not up to the barrister to say "well I think you are guilty so I'm out." If that were the case, you'd have no justice system. It is not what the barrister thinks that is important - it is what the jury thinks having heard all of the evidence which is key. Of course a barrister should use his/her common sense.

There are lots of principles at play here - these principles are very old and ensure that everyone can expect to be represented at court. Some relevant rules here:

•

must at all times promote and protect fearlessly and by all proper and lawful means his lay client's best interests.

•

must assist the Court in the administration of justice... must not deceive or knowingly or recklessly mislead the Court.

•

must not make statements or ask questions which are merely scandalous or intended or calculated only to vilify insult or annoy either a witness

•

A barrister who supplies advocacy services must not withhold those services:

(a) on the ground that the nature of the case is objectionable to him or to any section of the public;

(b) on the ground that the conduct opinions or beliefs of the prospective client are unacceptable to him or to any section of the public;

As a barrister, it is very hard to get out of a case (due to the last rule) on the above list). It isn't about being self serving, it is about following a code of conduct which has, for years, ensured that everyone who wants one gets someone to defend them and, as such, receives a fair trial.

Reply 44

moritzplatz

12

Original post by TheBigGeek

What if the woman was mentally unstable BECAUSE SHE WAS RAPED? You're branding her liar due to symptom caused by the assault.

human psychology is a very mysterious field. who knows what was going on in her mind.

Reply 45

Original post by TheBigGeek

THIS is why so few rape cases ever see convictions.

It is one of the reasons but rapists have changed their modus operandi in the last 20 years in response to DNA profiling.

Once upon a time, the key to success for a rapist was to avoid identification. If the rapist could get away without being identified at the scene, he stood a very good chance of never being convicted.

Women were raped (and often murdered) down dark alleys. Housewives were raped in their houses.

Now, rapists assume that they will be identified. The key to success is for the offence to be committed in ambiguous circumstances where consent may have occurred. This will deter a victim from complaining, make it less likely that a prosecution will occur and make a conviction less likely if a prosecution does take place.

The last thing a rapist now wishes to do is physically harm the victim. Marks of violence mean that a defence of consent is probably untenable. Bearing in mind that few non-prostitutes have sexual intercourse in dark alleys, the fact that the offence took place somewhere unromantic makes it less likely that it was consensual. Married women do not generally have consensual sex which strangers who call at their house in mid afternoon.

Instead rapists approach victims in pubs and clubs. Rapes occur in locations and on occasions where consensual sex also usually takes place.

The dark alley is probably a safer place for a young woman than a hall of residence.

(edited 11 years ago)

Reply 46

Studentus-anonymous

12

Original post by Aspiringlawstudent

What do you think?

I think you linked a Daily Mail article which is therefore inadmissible. :tongue:

And more on topic killing yourself doesn't equate to the accused being a rapist or suggesting she isn't a lair.

We don't know the two involved so can't really judge. This guy may have, he may not have. The complainant killed herself.

The defence lawyers did their job, just as the prosecution were doing there's.

Feel sorry for her family, and if the dude is guilty shame on him but, can't convict a man when I know pretty much nothing relevant about the situation.

Reply 47

RevolutionIsNear!

7

There's no excuse for suicide.

Reply 48

sevchenko

15

Lawyers are being paid to do a job to the best of their ability. What kind of Lawyer would the defence be if she didn't fight for her client

Reply 49

ed-

13

I don't think they were in the wrong...

Reply 50

Jack93o

15

did the witness not receive some sort of counseling before and after the questioning?

Reply 51

Aspiringlawstudent

OP

3

Original post by Jack93o

did the witness not receive some sort of counseling before and after the questioning?

The witness was given various opportunities including inter alia;

Giving evidence via videolink
Giving evidence from behind a screen
A court familiarisation visit

All of which I believe she rejected.

Reply 52

RevolutionIsNear!

7

I've been a witness at court before and boy that barrister didn't go easy on me but hey, it's to be expected, we wouldn't have a fair and effective justice system if we didn't.

Reply 53

Original post by nulli tertius

Instead rapists approach victims in pubs and clubs. Rapes occur in locations and on occasions where consensual sex also usually takes place.

The dark alley is probably a safer place for a young woman than a hall of residence.

I understand what you're getting at, but I doubt that all rapists are as calculating and knowledgeable as a law student, I suspect that's bad advice in your last sentence, if you meant it that way, as there are still plenty of psychopathic or unbalanced men out there who think they'd like to do that. There have been plenty of rape cases of that type in recent years.

Reply 54

scrotgrot

16

I suppose it's the responsibility of the judge, with his wealth of experience, to tell the lawyers off when they get too nasty and to be supportive of the person being examined.

We have to assume, especially in light of the many thousands of rape victims who don't kill themselves after a court appearance, that the judge's failure to intervene showed that in his professional opinion the examination was not too over the top and the suicide was something of an over-reaction.

Compare the suicide of the nurse after that prank call from a few months back. I think everyone agreed that though the prank call was irresponsible the suicide was irrational.

That said, seeing that exchange I think there is scope to be a bit more compassionate when dealing with people in court, i.e. that you can't just keep on saying "you're lying", there has to be some substance to your examination.

(edited 11 years ago)

Reply 55

Original post by Fullofsurprises

I understand what you're getting at, but I doubt that all rapists are as calculating and knowledgeable as a law student, I suspect that's bad advice in your last sentence, if you meant it that way, as there are still plenty of psychopathic or unbalanced men out there who think they'd like to do that. There have been plenty of rape cases of that type in recent years.

Of course, muggers and other criminals of course do lurk down dark alleys.

However, there has been a tendency to believe the accounts put up by individual defendants as characterising the pattern of rapes. To put it bluntly most rapes are committed by rapists; that is they are committed by men who are determined to have sexual intercourse regardless of the woman's wishes.

At an individual level it may be impossible for a jury to tell whether a particular incident is an example of crossed wires, mixed messages, misunderstandings etc but on a wider statistical scale, it would be remarkable if the majority of complainants of rape actually behaved in an ambiguous or enticing manner.

Read the defence accounts of rape trials on a local newspaper website but instead of considering whether any one of them is likely to be true, consider whether all or most of them are likely to be true.

Apart from some overseas based rapists who do still fancy their chances with identity issues, you will see very few rapes prosecuted which appear to be the spontaneous action of the unbalanced. In that I disagree with you. In my youth, the rapist running down the canal towpath was the staple of Shaw Taylor's crime reconstructions on Police 5. It just isn't any more.

Reply 56

Original post by scrotgrot

I suppose it's the responsibility of the judge, with his wealth of experience, to tell the lawyers off when they get too nasty and to be supportive of the person being examined.

We have to assume, especially in light of the many thousands of rape victims who don't kill themselves after a court appearance, that the judge's failure to intervene showed that in his professional opinion the examination was not too over the top and the suicide was something of an over-reaction.

Compare the suicide of the nurse after that prank call from a few months back. I think everyone agreed that though the prank call was irresponsible the suicide was irrational.

That said, seeing that exchange I think there is scope to be a bit more compassionate when dealing with people in court, i.e. that you can't just keep on saying "you're lying", there has to be some substance to your examination.

According to a news report earlier on the BBC, the judge has come out as saying that the barrister in question behaved in an exemplary fashion. Not sure I agree from everything I've heard so far - it sounds like she was using aggressive, hectoring methods designed to intimidate the victim.

Reply 57

Original post by Fullofsurprises

According to a news report earlier on the BBC, the judge has come out as saying that the barrister in question behaved in an exemplary fashion. Not sure I agree from everything I've heard so far - it sounds like she was using aggressive, hectoring methods designed to intimidate the victim.

A barrister is required to challenge in cross-examination every statement made by a witness with which her client disagrees. If she doesn't, her client is taken as admitting the truth of the unchallenged evidence. She cannot ignore what the witness says, and then submit to the jury that the witness is a liar. She must put each and every statement to the witness and accuse her of being mistaken or lying as the case may be.

Reply 58