Theoretically a man will not lie under oath or to his better half (who always seems to know the truth anyway - it is rather uncanny!) Then some say children will not lie - they are too innocent - it is however proven beyond doubt that children will lie if they think it will help their cause. So what happens then in a court of law? You all have seen the witness taking the oath and then tell his version of the events under consideration which always has three perspectives, your view, my view and the truth somewhere in between. Witnesses are horribly unreliable even when honest.
Cynically I can tell you that the oath the witnesses take has no real l meaning in court...witnesses, especially when they are also the accused, lie all the time and many admit so afterwards. Theoretically that kind of behaviour is prohibited by law in the form off a crime known as "perjury" but it is seldom enforced. We witnessed (excuse the pun) a lot of that during the "terrorism trials" in the old South Africa quite a lot. You only have to read the autobiographies of the accused to find the evidence. Each to his own!
Any witness runs the risk of being declared, after due warning, to be a hostile witness in certain cases and then you have the illogicality of him being cross examined by his own legal team. Now cross examination is nothing but testing his story / testimony on the ground of law of evidence rules applicable (balance of properties in civil cases and beyond reasonable doubt in criminal cases). It involves vigorous questioning. Does this mean the attorneys / advocates lie in court to gain the upper hand?
Absolutely not! Despite all the movies and books and no doubt horror barbecue stories you heard third or fourth hand; lawyers never lie in court and you can bet your last penny if he says he will call someone to testify to whatever he will do so in due course. You simply do not bluff or ask a question without knowing the answer. For evidential reasons (very boring) the lawyer will always say "Sir, I put it to you that...."
Take note too, the prosecutor only has the duty to bring the State's (Victim's) case to court, not to obtain a guilty verdict at any and all cost! Nor do the defense team have a duty to obtain a non-guilty verdict at any and all cost but only to bring the accused's case to the court and defend him to the best of his ability. It is not a personal. We have a saying in law "I (the lawyer) will always walk out of court, you on the other hand, being the accused, is an entirely different matter and may stay behind for the rest of your life." Hence we demand payment upfront just in case!
The moment the attorney realises his client lied to him he will withdraw from the case as the trust relationship between them is broken. Nor will he tell the witness what to say during consultation (before court) but he may use his well-practised stare of utter disbelief when his client tells a story which his own mom will find hard to believe. He may even kindly suggest that his client "perhaps overlooked the other witnesses" (hostile to him for unknown reasons no doubt) and who is now "ganging up against him" but remarkably, they all say one story which is contradictory to his own version. The sad fact is that some jurists are stating bluntly that the taking of the oath is of so little value that it should be ignored. I am not sure what that says about the times we live in.
I often wonder why South Africa has eleven official languages for only two are used in court and that would be Afrikaans or English. And since all educated South Africans are able to read, write and speak English well enough to communicate clearly in it is unusual to for court translators to be used from English to Afrikaans and Afrikaans to English. I suppose that English is used for the benefit of the Judge and international viewers in this Pistorius trial for the accused, defense and prosecutor are all native Afrikaans speakers.
As you have probably seen not all translators are up to the task and in court that can be fatal for the accused. It also leaves a wry smile on those of us who are well able to speak both languages and actually understand where the translation errors occur. By law though, the translated version stands and not what you deduct. It is a basic human right (always been like that in South Africa) to testify in whatever language you feel comfortable in but it is extremely frustrating for everyone involved including the lawyers who are stopped in their tracks as they wait for the translator to translate what they said. From my police days we were convinced this also gave the accused / witness an unfair advantage. They obviously understood the question and whilst waiting for the translator they think what to answer instead of just the truth. However, lying in court always has a way of coming out. You must remember, there are no real surprises in court.
The defense team has the same witness statements before the trial starts and ample time to work out what questions to ask. Indeed, they do not ask a question without knowing the probable answer and work up to whatever they want highlighted to their own advantage. They have a whole strategy planned around it and watching like hawks for any physical discomfort from the witness like the touching of his nose (means he is lying) or an involuntary twitch of his foot (does not want to answer or go that direction). Such behavior is also noted by the Judge who by the way, cannot be bribed in South Africa. I read with much distress some comments from people who seem to think such things happens regularly. Let me assure you that I am not aware of any High Court Judge bribed in the last 300 years in South Africa. It is a common misconception foreigners have about Africa...that the standards are lower than in the West. You cannot be more wrong and should read my book Tricks of Trade - Memories of a Rogue Lawyer in this regard. In certain instances African standards are higher than what the West is used to.
The answer to cross examination is simple, just tell what you know and if you don't know say so. There is nothing a defense lawyer can do when faced with a witness who tells the truth. It is only when lying where things go bad - remember - these lawyers dealt with liars all their adult life. They do have a sixth sense on such things and will home in on it if it exists. Never lie in court.
It is interesting to read the Internet comments on the Pistorius murder trial. It seems there is a serious lack of understanding of the legal terminology being used. For instance, there is no such thing as "premeditated murder" in South African Law. It is "murder" and murder is always premeditated and it is from the Common Law. If not, it would be called "culpable homicide" where the victim is killed but not by premeditated action by the accused. This is probably what the defense council is aiming at but we simply don't know at this stage and it is wrong to speculate.
There is also no such thing as "murder in the second degree" which is known here as "culpable homicide" and no jury system either. That stopped in 1961 though you could ask for one up to 1969 or so the old timers told me during my own years as a practising attorney. Today, when you walk into an old court room (the legal profession refers to it as having "character and old world charm"), you will note the benches where the jury used to be and they were all white (the qualification was to be able to vote).
This lack of a jury is a good thing in my eyes - though law is not exactly rocket science - I say so in all my books and lawyers totally overpaid - it is complicated for the man in the street. It has to be - how else will lawyers make money? But seriously, I would much rather place my future in the hands of someone who is trained in law, highly experienced and capable of understanding the legalities of the case. I say with respect that I doubt a jury being able to do the same and it comes down to Hollywood stunts by the lawyers to obtain a verdict. Such behaviour by the way, like walking around in the court or being disrespectful will never be tolerated by our judges and that lawyer will end up in jail for contempt of court if he tries it. Here you behave properly and the proceedings are very fair with both sides having a fair chance to state their case, cross exam the witnesses and bring their own witnesses to court. And yes the burden of proof is on the state prosecutor (called a Crown prosecutor during Colonial times) to proof "beyond reasonable doubt" that murder was indeed committed. Yes, it is the same as in any other country and the standards as high as in any first world country. Even in Apartheid the procedure was very fair even if the laws were most certainly not.
The term "lawyer" is technically wrong. In South Africa you are either an attorney or an advocate. The law degrees are the same (these days) but the training totally different. I will also state that someone who has a law degree but did not complete his legal articles afterwards and passed his bar (or side bar) exam is in no way qualified to practise law and in fact, prohibited from doing so. It is a crime to pretend to be an advocate or attorney without actually being one. Also note that advocates are addressed as Mr or Mrs and not advocate - something which is not generally known in public.
At any rate, it is way too early to speculate on the outcome of the trial. We follow the legal dictum of audi alterum partem or hear the other side first before making a judgement. Similarly, under the rules of natural justice, the judge must be neutral. Therefore you will not see her intervening all the time. You may trust her to do her job as good as any other judge.
We will talk next week or next time on the role of interpreters - something which is also causing a lot of negative comments.
Koos Kotze is a former member of the South African Police Force. He served between 1985 and 1991 primarily as a sergeant in the Pretoria Flying Squad. During his police years, he was awarded the South African Police Medal for Combating Terrorism twice besides lesser awards. After leaving the Police Force he obtained the law degrees B Iuris & LLB at the University of the Free State (Bloemfontein, South Africa) and was a commercial law attorney for eight years. These days he is the owner of JKLS Africa and Associates, a specialist legal consultancy which specializes in reducing legal risk in sub Saharan Africa. He wrote several books on business, law, counter-terrorism and security issues. At times he is asked to participate on the Voice of America regarding legal forensic matters.