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Witness preparation and the prosecution of rape

Published online by Cambridge University Press:  02 January 2018

Louise Ellison
Louise Ellison*
Affiliation:
School of Law, University of Leeds
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Abstract

In England and Wales, rape complainants currently receive little by way of pre-trial support and preparation. This stands in sharp contrast to prosecutorial practice in the USA where prosecutors meet with complainants prior to trial with the specific aim of preparing them for the unfamiliar process of testifying in criminal proceedings. This paper considers the case for adopting similar arrangements in rape cases in England and Wales. This is assessed primarily from an evidentiary perspective although due consideration is also given to the need to protect vulnerable complainants from the risk of secondary victimisation within the criminal trial process.

Type
Research Article
Information
Legal Studies , Volume 27 , Issue 2 , June 2007 , pp. 171 - 187
Copyright
Copyright © Society of Legal Scholars 2007

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References

1. Lees, S Judicial rape’ (1993) 16 Women’s Studies International Forum 26 CrossRefGoogle Scholar; .

2. Section 41.

3. Home Office Convicting Rapists and Protecting Victims – Justice for Victims of Rape (London: Home Office, 2006) p 4 Google Scholar.

4. Temkin, J Prosecuting and defending rape: perspectives from the Bar’ (2000) 27 JLS 219 CrossRefGoogle Scholar. See further .

5. Bond, C and Solon, M The Expert Witness in Court. A Practical Guide (London: Shaw & Sons, 1999)Google Scholar; .

6. Home Office figures on reported rape cases show an ongoing decline in the conviction rate for England and Wales, putting it at an all time low of 5.6%: L Kelly, J Lovett and L Regan A Gap or a Chasm? Attrition in Reported Rape Cases HORS 293 (London: Home Office, 2005).

7. [2005] 2 All ER 571.

8. See, generally, Kerrigan, P Witness preparation’ (1999) 30 Tex Tech L Rev 1367 Google Scholar; .

9. Fairstein, L Sexual Violence: Our War Against Rape (New York: Berkeley Publishing Group, 1995) p 12 Google Scholar, cited in .

10. Prosecutors may meet with complainants several times prior to trial.

11. R Baldini ‘Witness preparation’ in Understanding Sexual Violence: Prosecuting Adult Rape and Sexual Assault Cases (National Judicial Education Program, 2001), available at http://www.nyscasa.org/SANE%20Training.pdf.

12. Cotterill, J Language and Power in Court (New York: Palgrave MacMillan, 2003) p 92 CrossRefGoogle Scholar. See also .

13. ‘[W]itnesses must learn a new strange language and a discipline that is very different than anything [used in their] normal lives’: Small, D Preparing Witnesses: A Practical Guide for Lawyers and Their Clients (Illinois: ABA Publishing, 2nd edn, 2004) p 13 Google Scholar.

14. Lewis, E Common witness misperceptions (and things witnesses don’t tell their lawyers)’ (2005) 31 Litigation 25 Google Scholar at 29.

15. Bennett, WL and Feldman, M Reconstructing Reality in the Courtroom (New Brunswick: Rutgers University Press, 1981)Google Scholar.

16. Melilli, K Witness preparation’ (2006) 61 American Jurisprudence Trials para 105 Google Scholar.

17. Understanding Sexual Violence: Direct Examination of the Victim in a Non-stranger Rape Case Training Video produced by the National Judicial Education Program (NJEP).

18. Ibid.

19. See Gershman, B Witness coaching by prosecutors’ (2002) 23 Cardozo Law Review 829 Google Scholar; J Piorkowski ‘Professional conduct and the preparation of witnesses for trial: defining the acceptable limitations of “coaching” ’[1987] Georgetown Journal of Legal Ethics 389.

20. For discussion see Melilli, above n 16; L Salmi ‘Don’t walk the line: ethical considerations in preparing witness for disposition and trial’ [1999] Review of Litigation 135.

21. See Lees, S Carnal Knowledge Rape on Trial (London: Hamish Hamilton, 1996)Google Scholar; ; .

22. Stone, M Cross-Examination in Criminal Trials (London: Butterworths. 2nd edn, 1995) p 132 Google Scholar.

23. See Hobbs, P Tipping the scales of justice: deconstructing an expert’s testimony on cross-examination’ (2002) 15 International Journal for the Semiotics of Law 411 CrossRefGoogle Scholar at 420; at 217.

24. Hobbs, P “You must say it for him”: reformulating a witness’ testimony on cross-examination at trial’ (2003) 23 Text 477 CrossRefGoogle Scholar at 487. See also ; .

25. Carson, D Professionals and the Courts: Handbook for Expert Witnesses (Sussex: Venture Press, 1990) p 1 Google Scholar.

26. Above n 11.

27. Ibid.

28. Above n 16, para 117.

29. Ibid, para 111.

30. See Gnisci, A and Pontecorvo, C The organization of questions and answers in the thematic phases of hostile examination: turn-by-turn manipulation of meaning’ (2004) 36 Journal of Pragmatics 965 CrossRefGoogle Scholar; ; .

31. Drew, P Contested evidence in courtroom cross-examination: the case of a trial of rape’ in Drew, P and Heritage, J (eds) Talk at Work: Social Interaction in Institutional Settings (Cambridge: Cambridge University Press, 1992) p 470 Google Scholar.

32. Matoesian’s analysis of rape trials contains several examples of complainants ‘breaking frame’, producing expanded answers, and thus elaborating the context for their actions and inactions during an assault: Matoesian, G Reproducing Rape (Cambridge: Polity Press, 1993) p 217 Google Scholar.

33. Young, A The waste land of the law, the wordless song of the rape victim’ (1998) 22 Melb U L Rev 442 Google Scholar at 459.

34. Ibid, at 462.

35. Ibid, at 460.

36. See Larcombe, W The “ideal” victim v successful rape complainants: not what you might expect’ (2002) 10 Feminist Legal Studies 131 CrossRefGoogle Scholar.

37. Stone, above n 22, p 142.

38. See, generally, Ellison, L The mosaic art?: cross-examination and the vulnerable witness’ (2001) 21 LS 353 Google Scholar.

39. Baldini, above n 11. See further Brodsky, S Coping with Cross-examination and Other Pathways to Effective Testimony (Washington: American Psychological Association, 2004)CrossRefGoogle Scholar.

40. Baldini, above n 11.

41. Ibid.

42. The interviews were conducted in 1991 and 1992: Konradi, A Too little, too late: prosecutors’ pre-court preparation of rape survivors’ (1997) 22 Law and Social Inquiry 1 CrossRefGoogle Scholar.

43. Ibid, at 41.

44. Ibid, at 18.

45. Konradi, A Understanding rape survivors’ preparations for court’ (1996) 2 Violence Against Women 25 CrossRefGoogle ScholarPubMed at 49.

46. Konradi, A Pulling strings doesn’t work in court: moving beyond puppetry in the relationship between prosecutors and rape survivors’ (2001) 10 Journal of Social Distress and the Homeless 5 CrossRefGoogle Scholar at 13.

47. The group value theory of procedural justice developed by Tyler and Lind predicts that an individual’s sense of procedural fairness will be enhanced when he or she is treated with politeness, dignity and respect: Tyler, T and Lind, A A relational model of authority in groups’ (1992) 25 Advances in Experimental Social Psychology 115 CrossRefGoogle Scholar. See also .

48. Konradi, above n 42, at 42.

49. Ibid, at 48.

50. Bacik, I, Maunsell, C and Gogan, S The Legal Process and Victims of Rape (Dublin: Dublin Rape Crisis Centre, 1998) p 8 Google Scholar.

51. Ibid, p 143.

52. For an overview of court preparation techniques aimed at child witnesses, see Copen, L Preparing Children for Court: A Practitioners Guide (California: Sage, 2000)Google Scholar; .

53. Dezwirek-Sas, L Empowering child witnesses for sexual abuse prosecution’ in Dent, H and Flin, R (eds) Children as Witnesses (Chicester: Wiley, 1992) p 181 Google Scholar.

54. Ibid, p 189.

55. Aldridge, J and Freshwater, K The preparation of child witnesses’ (1993) 5 Journal of Child Law 25 Google Scholar; K Sisterman Keeney, E Amacher and J Kastanakis ‘The court prep group: a vital part of the court process’ in Dent and Flin, above n 53, p 201; ; ; . For general discussion see .

56. Boccaccini, M, Gordon, T and Brodsky, S Witness preparation training with real and simulated criminal defendants’ (2005) 23 Behavioral Sciences and the Law 659 CrossRefGoogle ScholarPubMed; .

57. K Saywitz et al Preparing Children for the Investigative and Judicial Process: Improving Communication, Memory and Emotional Resiliency Final Report to National Center on Child Abuse and Neglect (Los Angeles: University of California, 1993); Saywitz, K and Snyder, L Improving children’s testimony with preparation’ in Goodman, G and Bottoms, B (eds) Child Victim, Child Witnesses (New York: Guilford Press, 1993) p 117 Google Scholar.

58. Saywitz, K, Snyder, L and Nathanson, R Facilitating the communicative competence of the child witness’ (1999) 3(1) Applied Developmental Science 58 CrossRefGoogle Scholar.

59. For an overview of relevant research see Ellison, L The Adversarial Process and the Vulnerable Witness (Oxford: Oxford University Press, 2001) pp 19–23 Google Scholar.

60. Brannigan, A and Lynch, M On bearing false witness: credibility as an interactional accomplishment’ (1987) 16 Journal of Contemporary Ethnography 115 CrossRefGoogle Scholar.

61. Recommendation Rec(2006)8 of the Committee of Ministers to Member States on Assistance to Crime Victims.

62. Konradi, above n 42, at 46.

63. Hartley, C A therapeutic jurisprudence approach to the trial process in domestic violence felony trials’ (2003) 9(4) Violence Against Women 410 CrossRefGoogle Scholar at 422.

64. Victim Support, above n 21, p 55.

65. See Watson, A Witness preparation in the United States and England & Wales’ (2000) 164 JP 816 Google Scholar.

66. Above n 7.

67. Bar Council Guidance on Witness Preparation (2005).

68. R v Salisbury (unreported) 19 May 2004.

69. InPractice Call For Health Care Staff to Receive Witness Training’, available at http://www.inpracticetraining.com/press_health.html.

70. Above n 7.

71. Ibid, para [62].

72. Above n 67.

73. Ibid, para 3.

74. Ibid.

75. See Cooper, P Witness preparation’ (2005) 155 NLJ 1753 Google Scholar.

76. Bond Solon is the UK’s leading witness training provider. The company started offering witness familiarisation courses more than 10 years ago and claims to have worked with tens of thousands of lay and expert witnesses. Clients include HM Revenue and Customs, British Transport Police, leading law firms and major national and international companies. See the website available at http://www.bondsolon.com.

77. CPS Press Release ‘CPS London lawyers to train Metropolitan police officers’ 21 November 2005.

78. In the 1990s, Lee Moore, a non-practising barrister, established a witness preparation programme in England specialising in the trial preparation of victims of sexual violence. Her aim was to assist victims to present their oral evidence effectively and reduce the trauma of testifying. The programme has since been terminated.

79. Riding, A The Crown Court witness service: little help in the witness box’ (1999) 38 Howard Journal 411 CrossRefGoogle Scholar.

80. Home Office Witness in Court (London: Home Office, 2006)Google ScholarPubMed. The organisation Rights for Women has produced a detailed handbook aimed at rape victims made available through its website: From Report to Court – A Handbook for Adult Survivors of Sexual Violence (2005), available at http://www.rightsofwomen.org.uk.

81. More extensive witness preparation is potentially available to child witnesses. See NSPCC Preparing Young Witnesses for Court. A Handbook for Child Witness Supporters (London: NSPCC, 1998)Google Scholar.

82. Riding, above n 79.

83. J Harris and S Grace A Question of Evidence? Investigating and Prosecuting Rape in the 1990s HORS 196 (London: HMSO, 1999).

84. McDonald, K The new Cps’ (2005) 1 London Law Review 361 Google Scholar. See also .

85. The Rt Hon Lord Goldsmith QC Statement by the Attorney-General – The Prosecutors’ Pledge (London: Office of the Attorney-General, 2006)Google Scholar. See also .

86. Home Office Early Special Measures Meetings between the Police and CPS and Meetings between the CPS and Vulnerable and Intimidated Witnesses – Practice Guidance (London: Home Office, 2002)Google Scholar. Recent research indicates that these meetings currently take place infrequently: M Burton, R Evans and A Sanders Are Special Measures for Vulnerable and Intimidated Witnesses Working? Evidence from the Criminal Justice Agencies Home Office Online Report 01/06 (London: Home Office, 2006) p 43.

87. CPS, Bar/CPS A Standard for Communication between Victims, Witnesses and the Prosecuting Advocate (London: CPS, 2006)Google Scholar.

88. The Rt Hon Lord Goldsmith QC Pre-Trial Witness Interviews by Prosecutors Report (London: Office of the Attorney-General, 2004)Google Scholar. At the same time the Attorney-General announced the launch of a pilot scheme to run in four CPS areas (Lancashire, Greater Manchester, Merseyside and Cumbria).

89. Studies have found that rape survivors have high levels of persistent post-traumatic stress disorder compared to other victims of crime: Kilpatrick, D et al ‘Mental health correlates of criminal victimization: a random community survey’ (1985) 53(6) Journal of Consulting and Clinical Psychology 866 CrossRefGoogle ScholarPubMed.

90. Home Office Press Release ‘Improved support for victims of sexual abuse’ 5 October 2006.

91. Home Office Press Release ‘Supporting victims of sexual crime’ 22 February 2005.

92. Home Office, Action Plan to Implement the Recommendations of the HMCPSI/HMIC Joint Investigation into the Investigation and Prosecution of Cases Involving Allegations of Rape (London: Home Office, 2002)Google Scholar.