For victims of crime, a trial can be an incredibly stressful and intimidating experience. But what of the effect it has on those who are called to give evidence? By Diane Armstrong.
Witness for the prosecution
In this story
The sign on the door of Courtroom 2-3 says Closed Court. Through the narrow glass panels I can see the jury, eyes turned towards the man in the witness stand. I’ve been told that one juror became ill and had to be excused. Perhaps the subject of this trial turned her stomach.
Sitting outside the courtroom, waiting to be called, I breathe slowly and try to stop yawning. I’m not tired, just tense. I run through the list of instructions a solicitor friend has given me. “Listen very carefully, take a deep breath before you answer, and try to confine your answers to yes or no. The defence will try to discredit you and make out that your memory is unreliable or that you don’t know what you’re talking about. Don’t explain anything. And whatever you do, don’t get upset or angry.” Then she added: “Giving evidence is rarely a positive experience for the witness.”
I’ve never given evidence in court before. As I sit in the waiting room trying to relax, a young woman appears in front of me in a black robe with a stiff white collar that ends in two long strips down her chest and a curled white wig over her blonde hair. She introduces herself as the crown prosecutor and says she’ll take me through my statement. “Listen carefully to what I ask, and just answer the question briefly,” she says. When I take out a copy of my statement, she notices the newspaper clipping attached to it and frowns. “Put that away,” she says. “Don’t let the jury see it. We’ve come too far to have the case dismissed.”
As I tuck the offending paper into my handbag, I feel exasperated with what seems to me to be our criminal injustice system. That article reported a previous court hearing during which the defendant actually admitted committing the offences for which he is now being tried. If the judge checked the transcripts of that case, he would save the taxpayers a lot of money, free up the courts, which are always clogged, and, above all, save the plaintiff the trauma of going through this all over again. It is certainly an advantage to the man in the dock that the jury doesn’t know he has admitted the offences, but where’s the justice for his victim?
When the courtroom doors swing open to allow the witness ahead of me to emerge, I hear one policewoman murmur to her colleague: “That wasn’t much help. It happened so long ago, she couldn’t remember whether it was on one occasion or another.” My heart starts thumping. The incident I’m going to be asked about also happened a long time ago, but I remember it clearly, because there are things you never forget. But if they start trying to pin me down to times and dates, I’ll have to say I can’t remember. Will that invalidate my testimony or affect my credibility?
I remember the conversation as though it happened yesterday. We were sitting in my kitchen, her mother, Mercedes, and I, making uncomfortable small talk like people who can smell the rotting rhinoceros head on the table but pretend it isn’t there. There was only one subject on my mind that day, but I knew I couldn’t bring it up. And then, to my surprise, she did.
“I suspected for years there was something going on between him and Elena, but he always said I was imagining things,” she said in her Spanish accent. “Then one night, when she was 17, I saw him coming out of her bedroom. That’s when I knew for sure.”
I listened transfixed and didn’t know what to say. What can you say to a mother who has known that her husband has been abusing her daughter for years, and has done nothing about it? What she said next made my mouth go dry. “I was angry with her for trying to get him away from me.”
Over the years, I had interviewed victims of incest for articles I’d written, and I knew about the passive complicity of mothers who averted their eyes from sexual abuse committed by their husbands or boyfriends so they could protect their lifestyle and financial security, or to avoid exposure and shame. Mothers who blamed their daughters and regarded them as sexual rivals. I also knew about the guilt and powerlessness felt by the victims who are often made to feel special, and are bound to secrecy by their abuser. I’d heard this from strangers but I never expected to hear it from someone I knew.
Mercedes told me she had corroborated the statement Elena had made to the police, but several weeks later I heard that Elena had decided not to pursue the charge. Perhaps she wasn’t ready to face the trauma of a court case in which she would have to reveal such painful facts.
Years passed, and I lost touch with Mercedes and Elena. I call them these names, although they are not the names by which I knew them. One day I opened the newspaper and read that a young woman had charged her father with sexual abuse that began when she was a child. Although no names were mentioned, I realised that Elena had found the resolve and courage to press charges, and I decided to help her if I could. I wrote a statement for the detective in charge of the case, describing my conversation with Mercedes.
It occurred to me that because Elena had her mother’s support, she wouldn’t even need my testimony, but when I asked the detective why my evidence was required, his reply chilled me: “Her mother has withdrawn her previous statement. She’s siding with her husband now.”
As I sit outside the courtroom waiting to be called, Mercedes walks past me and averts her face so sharply that I’m surprised her neck doesn’t snap. The door of the courtroom swings open and the sheriff, a stout man with a ruddy complexion, calls my name. Heart pounding, I step inside the small brightly lit courtroom furnished with cheerful blonde timber chairs and benches. Three women and eight men are sitting in the jury panel and I wonder what’s going through their minds. Some hold notebooks, ready to jot down what they hear, others look at me with mild interest.
The man in the dock looks ordinary: grey suit, thinning dark hair, glasses. His head is bent as he writes something in a notebook. When he looks up, he appears politely interested in the proceedings, but remains expressionless. In fact, he looks unconcerned, as if these proceedings have nothing to do with him. Defence lawyers probably tell their clients to look pleasant at all times and on no account to display any emotions that might antagonise the jury.
As I take my place on the stand to the left of the bewigged judge, the sheriff hands me the Bible and asks me the question we’ve all heard thousands of times. Do you swear … to tell the truth, the whole truth …? I make my affirmation, sit down and take a deep breath, ready for the onslaught. But nothing happens. The judge, the defence lawyer and the crown prosecutor are in a huddle, studying something. It’s my statement. The judge says that paragraph seven is inadmissible and I’m not to be questioned on it. They argue back and forth about another paragraph as well, and then his honour asks the jury to leave while they discuss a point of law.
When the jury returns, the crown prosecutor begins to question me. We’re on the same side, so I don’t feel nervous. I remember to listen carefully, reply slowly, give concise answers. How often did the mother come to my home? Did I have any trouble understanding her? I shake my head. Not at all. Did she have trouble understanding me? No, I say.
While the questioning proceeds, I’m aware the defendant is watching me with eyes like rapiers, trying to stare me down. I meet his gaze and don’t avert my eyes.
The prosecutor comes to the crucial conversation. “It took place in my kitchen,” I tell her. “Mercedes said that Elena had told her that her father had been having sexual intercourse with her…” There’s a flurry and a sharp protest from the defence lawyer, and the prosecutor is holding her hand up. “Just slow down and answer only what I asked,” she cautions me. Apparently I’ve raced ahead and covered more than she wants to establish at the moment.
“Now, can you tell me what she said?” she asks. I take a deep breath.
I sense a new stillness in the courtroom as I describe the conversation. The defendant’s gaze is boring into me as I speak.
Then the defence counsel rises, and I’m on my own. “Did you have any trouble understanding the mother?” he asks, and proceeds to hammer this point in various ways. I have no idea what he’s getting at. “Did you have to ask her to repeat what she said?” he continues. “Not that I can recall,” I reply, mystified. “Was her English hard to understand?” he reiterates. Now I get it. He’s referring to her accent, but I can’t see the point. “She comes from South America and has a slight accent, but I had no trouble understanding her,” I reply. Before he can stop me, I add quickly, “Her English is very good.”
He surveys me for a moment and says in a plummy voice: “You claim to quote what she said, but this conversation took place 12 years ago, did it not? Can you be certain that these were her words?” I take a deep breath and speak very slowly. “Some things are indelibly printed on the memory.”
“Is that yes or no?” the defence counsel asks in a testy voice.
“It’s yes,” I reply.
“What action did you take after she said this?” he asks.
I don’t understand the question. Even after he repeats it, I’m none the wiser. Finally I say, “Elena had already charged him by then, so there was no need for me to take any action.”
That’s it; I’m free to go. Did I say the right things? Will my testimony help? And why were they all harping on whether I understood Mercedes or not?
As I leave, the crown prosecutor’s assistant hurries out of the courtroom towards me. “We couldn’t tell you this before, but Mercedes has told the court that the policeman who took her statement 12 years ago didn’t understand what she said, and she didn’t understand him. She said that’s why she made those admissions, which she now denies. What you said helped us a lot because obviously you had no trouble communicating with her, or she with you.”
I go home relieved that my testimony has helped Elena.
Two weeks later, the detective calls me. “Hung jury,” he says. “They couldn’t arrive at a verdict because one of them didn’t agree. The case will have to be heard again.” I feel cheated, disappointed and angry. It doesn’t seem right that a single dissenting voice can invalidate a majority decision.
“For all we know, the dissenting juror could have been a paedophile,” the detective remarks.
I’m upset for Elena. How devastating it must be to have to go through all this again. Justice delayed is justice denied.
Six months later, I receive a subpoena to appear in court again.
This time when I enter the witness box, the crown prosecutor runs through my statement with me, and once again I go over my conversation with Mercedes.
Then the defence counsel rises to cross-examine me. “Just now you said Mercedes told you that Elena was 17 the night she saw her husband coming out of her room … but” – he flips over a thick wad of notes, obviously the transcript from the earlier trial. “Last March you said she was 15.”
I am bewildered and glance at the public prosecutor and her team expecting them to protest or argue, but they’re checking the reference and nodding. How can that be? I have a good memory and can’t imagine making such a mistake. It seems irrelevant but the defence is making a huge issue out of it and a heated discussion ensues.
They dismiss me shortly after that but, as I mull over what happened in court, something strikes me. I had read the transcript of my evidence twice while waiting to go into the courtroom. Surely it would have leapt out at me if there had been a discrepancy.
I call the detective and ask him to check the transcript. He reads it out. It’s exactly as I said that morning. There’s only one version, he says. So why did the defence counsel say it was wrong, and quote a page number? And why did
the prosecutor nod and later apologise that they hadn’t checked? He promises to take this up with the prosecutor.
Next day, he calls to tell me that the mistaken transcript referred to what I said while the jury was out, what they call voir dire, which was inadmissible. “Don’t worry,” he says. “It’s a pity this created confusion but it doesn’t matter. We have a very strong case. Let’s hope that this time the jury’s commonsense will prevail.”
A few days later he calls, and from his triumphant tone I already know the verdict. Several weeks later, the judge sentences Elena’s father to nine years in prison, of which he must serve at least six.
In his summing up, the judge commented that the father had shown no remorse for what he had done. When he is released in a few years’ time, his punishment will be over, but the scars on his family will last a lifetime.
As for me, being a witness gave me an insight into the workings of our criminal justice system which, despite the hitches, hiccups, hung jury and the splitting of irrelevant hairs, finally enabled the truth to prevail. But can this sentence be regarded as justice? How can a few years’ imprisonment balance the emotional and psychological devastation this man has wrought over so many years?
As I had been warned, giving evidence was a stressful experience. But by being a witness for the prosecution I was able to help Elena win her fight for justice.
Elena has paid a heavy price for her victory. But by finding the strength and courage to confront the past, she has regained control of her life.
This article was first published in the print edition of The Saturday Paper on Sep 20, 2014 as "Witness for the prosecution".
A free press is one you pay for. In the short term, the economic fallout from coronavirus has taken about a third of our revenue. We will survive this crisis, but we need the support of readers. Now is the time to subscribe.
Letters & Editorial