Article by Giovanni Parcou
On 3 March 2014 the trial of Oscar Pistorius began, which many people of the general public have been watching and discussing.
What has stood out is the brash and bold advocacy style of Gerrie Nel, the lead prosecutor in the trial. From what has been televised, it appears important to make a brief analysis of what advocates in England and Wales do when questioning witnesses, and whether what Nel has presented on our television screens would be acceptable in courts in England and Wales.
The purpose of cross-examination is to ask questions to support or challenge the case, and dispute the evidence. It is not to make statements and speeches.
On several occasions Nel, known as the ‘pitbull’, makes statements, for instance when he had said “You shot and killed her”. In the courts in England and Wales a statement like this in cross-examination is not necessarily allowed, however if phrased “you shot and killed her, did you not?” it would be.
There is also the issue of the prosecutor’s approach in attacking Pistorius’ character. It is a highly risky approach to directly attack a witness’s character, and is a rather aggressive style of cross-examination. The usual approach, which is often the most productive method, is to question the reliability of the witness’s evidence. So instead of him making the representation that Pistorius is lying on several occasions, it would appear more diplomatic to question his evidence as a witness and put questions to him that would be more preferential of the prosecution’s case.
In England and Wales counsel have a duty to not waste court time and money on irrelevant matters, so it is important for them to be specific and to the point about what it is they are submitting to the court, and also the questions they are making in examinations-in-chief and cross-examination.
The relevance of the video demonstrating Pistorius shooting a watermelon to illustrate how Reeva Steenkamp may have been injured in the event of her death was questionable. Nel submitted to the court that the purpose of the video was to show how Reva Steenkamp’s head was injured by the shooting.
No relevance can be drawn as to whether this is relevant to the facts of the case. It is difficult to reconcile how this video is evidence in proving Pistorius had murdered Steenkamp. In a court in England and Wales, it is unlikely that such evidence would be permitted because of how irrelevant it seems to be.
What should be taken away from viewing the performance of the advocates in the Pistorius trial is that not all advocates perform in the way Gerrie Nel has in the trial. In England and Wales, it is doubtful that advocates would be allowed to perform in the way the lead prosecutor has done because it could breach the Code of Conduct set by the Bar Standards Board of England and Wales. Barristers in England and Wales have far stricter rules to adhere to and the Pistorius trial should not be a blanket example of all advocates.