Legal Education Review
|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Legal Education Review |
|
TEACHING NOTE
Teaching Evidence: Inference, Proof and Diversity
KATHY MACK**
INTRODUCTION
When issues of diversity are raised in a law topic,
they often appear — or will be regarded by the students — as not
central
to the substantive legal or doctrinal aspects of the topic. Thus, a
preliminary teaching question which arises is the specialisation/mainstream
debate: should such material be presented in a separate segment of the topic
(ie: specialisation) in order to give it some overt
visibility, or should it be
“mainstreamed” by including references to it throughout the topic?
Either approach can lead
to marginalisation, as we see students putting down
their pens or not attending class where such material is going to be
covered.
The approach I have attempted to take in teaching
evidence1 is to show how such issues of diversity are
not marginal, but central, by:
REASONING FROM FACTS: WHAT EVIDENCE LAW IS ABOUT
Evidence is the law of facts. It regulates the use
and production of information at the common law adversary trial and the
reasoning
available from such information.2 Evidence
law determines the information which can be received by a court, the form(s) in
which that information may/must be presented,
and the use(s) to which that
information can be put.
The objectives stated in the topic guide reflect this
emphasis on facts:
By the completion of the course, students should be able to:
These objectives reflect what Andrew Palmer calls a
“fact-sensitive” rather than a “rule-sensitive”
approach.
As he quite sensibly points out, evidence rules about what cannot be
done with facts and inferences make no sense to students unless
they first know
how to use facts and to draw inferences from
them.3
This approach to evidence law requires
teacher and student alike to investigate how we think and why we think a certain
way, and to
expose unacknowledged assumptions, beliefs and ideas. Analysing the
intuitiveness of reasoning about facts orients us towards understanding
people,
ourselves and others, and it is an infinitely generalisable ability.
Understanding this reasoning about facts for the purpose
of evidence law creates
insights which will assist students every day in their future personal and
professional lives.
Although this is not an advocacy-centred approach, it
still allows consideration of the adversary trial as the primary context in
which evidence rules operate, thus creating opportunities for varied teaching
and learning activities. Trials are the public drama
of the law which we see in
film, television and books, and so they have some inherent appeal to
students.
Another consequence of this approach is to allow room for the
social, philosophical and theoretical inquiries which are such an important
part
of modern evidence scholarship.4 One aspect of power in
society is the ability to determine what amounts to
knowledge.5 The law of evidence is a manifestation of
that epistemological power in the legal system.6 By
formally determining who can speak within a legal setting and what they can say,
the law of evidence reflects and constructs the
social and cultural context in
which it functions. The law of evidence, like law generally, has a constitutive
function — it
tells us who we are, and by telling us, helps to make us
so.7
ASSUMPTIONS OF THE LAW OF EVIDENCE
“Natural” Rules of Fact Discovery
[T]he fundamental principle behind the law of evidence is the effective
employment of natural rules of fact discovery to determine the occurrence
of those facts upon which claims depend. The common law assumes that this
effective employment can be
best achieved through the ... adversary trial
...8
The course begins by asking what it means to
call this reasoning process “natural”? Certainly, drawing inferences
from
observations or information is a kind of reasoning or thinking we all do
all the time, and this very “naturalness” can
make it hard to
identify. However, in another sense, this process is not “natural”
at all, as it often depends on personal
and cultural assumptions and beliefs
which are not the same for everyone — what is a natural inference for you
may not be so
natural for me. My approach is to focus on and challenge these
so-called natural processes, to make visible what we assume, to articulate
what
we accept as natural, inherent or given.
In its deployment of these so-called
“natural” process of fact discovery, the law of evidence makes a
number of explicit
and implicit assumptions about human behaviour and reasoning
processes.
Rationality 9
Evidence law assumes that fact finding is and should be entirely “rational” in the sense that it is governed by principles of logic.10 “True” facts are ascertained by drawing logical/rational inferences, based on consideration of all relevant information, and excluding that which might distract from rational assessment, perhaps because it is unreliable or encourages an emotional reaction, such as lurid photographs of a crime victim. The assumption is that evidence can be evaluated solely as an objective, logical exercise.
Correspondence Theory of Truth11
An implication of this rationalist approach is the correspondence theory of truth: events occur and exist independent of human observations, and true statements correspond with these facts. Such objectively true facts are revealed through direct sensory observation. If the event is not experienced directly, it is revealed by logical inference from another’s direct experiences as described in testimony. This assumption is reflected in evidence law by the importance placed on direct observation by a witness and the exclusion of opinion or hearsay evidence.
Universal Cognitive Competence12
A further assumption of the law of evidence is what Marilyn McCrimmon has called “universal cognitive competence”: the assumption that normal, ordinary and unbiased people are able to assess information presented and come to much the same conclusion.13 The underlying assumption is that common experience gives rise to universally accepted generalisations about human behaviour that are available to all triers of fact. These generalisations then become the basis of inferences and conclusions of fact.
CHALLENGES TO THE ASSUMPTIONS OF EVIDENCE LAW
Modern commentators have shown that these assumptions about objectivity, rationality and universal cognitive competence are profoundly flawed.14
Diverse Perspectives
First, there is the recognition that “[e]ach of
us carries along our own set of beliefs, values, standards, sense of acceptable
behaviours and customs”.15 These perspectives
arise from a number of sources, for example: family, ethnic background, class,
education, gender socialisation,
physical and mental abilities, age, sexuality
and other factors. This perspective may be shared with few or many other people,
but
it is not universal. There are diverse “natural” perspectives
which are derived from our varied experiences and different
locations within
social structures.
However, “much of our cultural perspective is not
obvious to us”.16 In part, this is because those
we regularly spend time with, at work and socially, tend to share our values.
Thus, we may assume
our own perspective is universal and mistakenly treat
specifics derived from our own perspective as widely shared or universal. One
example of this is journals from the northern hemisphere which label their
issues as “Spring” or “Winter”
as though the seasons
necessarily indicated the same months of the year throughout the world.
We
may become aware that others have a set of cultural practices, when those
practices or beliefs differ from our own. However, we
may continue to regard our
own perspective as normal or neutral or better, and that other perspective as
different or even wrong.
The editors of the journal mentioned previously may be
aware that seasons differ in the southern hemisphere, but may assume that
the
northern hemisphere is the “normal” pattern and that those elsewhere
in the world will be aware of and translate
the season into the
“correct” northern hemisphere months. Similarly, speakers of
English, in its various forms, sometimes
regard their own speech as without
accent, whereas someone who speaks another form of English has an accent. As a
small child in
the south of the United States of America, I was well aware of
those who spoke with “Yankee” accents, but had no strong
sense of my
own “Southern” accent, until I became older. Even when I moved to
Australia, I was certainly aware of all
the Australian accents around me, but
did not immediately realise just how “American” I sounded.
Perspectivity and Evidence
Because we inevitably “see a world ... through
a lens shaped by our ... experiences”,17 we tend
to fit new information into personal or culturally derived “schemas”
or narrative structures, rather than to
interpret information in a way which
challenges these structures.18 These
“schemas” organise and interpret information for us and fill gaps in
information.19 Recognising the importance of
pre-existing narrative structures challenges the rationalist assumption of
objective knowledge and
“normal” inferences based on a
“universally” available stock of knowledge about the common course
of events.
The impact of diverse perspectives has been considered in the
context of investigations, which depend on initial assessments of credibility
and plausibility.
The more consistent a particular allegation is with our experience, the more
plausibility we are likely to accord it. ... [W]e have
little or no difficulty
empathising with the person telling us the story. Our own experiences, values
and attitudes “fit”
with those of the person making the allegation.
... [W]here there is considerable cultural or experiential disparity, the
absence
of such a stock of shared experiences is likely to negatively influence
a story’s plausibility. The cultural resources for
circumstantial
corroboration of the allegation are just not present. Empathy and understanding
under these conditions are much more
difficult.20
Thus, when we evaluate another’s
words or actions against our own “universal” or “normal”
standard,
that person’s statement or behaviour may be labelled as not
credible or wrong, simply because it differs from our own perspective.
The
influence of this unexpressed or unacknowledged perspective is not neutral or
random, but will inevitably be influenced by beliefs
about race, gender and age
and, worse still, by negative racial or gender stereotypes. United States
research suggests that a person
who is bumped by another person in a crowd is
more likely to interpret the bump as clumsy or accidental if the person doing
the bumping
is white.21 If the person doing the bumping
is black, it is much more likely to be interpreted as hostile. Age and gender
are factors as well,
with young black men being perceived as most hostile in
such an interaction.
Thus, our assumptions and inferences about what words
and conduct mean, when measured intuitively against our own personal perspective
or that of the cultures in which we participate, can be seriously inaccurate.
Worse, they can be biased against those whose personal
or cultural
characteristics differ from our own, or to whom negative stereotypes can be
attributed. When such allegedly “universal”
or “natural”
judgements are made by those who exert power in the legal system, as police or
lawyers or judges or jurors,
systematic injustice to those who are
“different” can result. Since we cannot be sure that “common
sense”
assumptions are universal, reliable or fair, we need to scrutinise
evidence principles, and their applications that are supposedly
based on such
“common sense”, as they may in fact reflect stereotypical
assumptions and discriminatory generalisations
about certain kinds of
people.22
In spite of the diversity of
“natural” perspectives, so-called “common”
understandings are regularly used
in law.23
“Common sense” and untested or unstated generalisations inform
decisions on whether particular pieces of evidence are
relevant;24 when determining whether to accept certain
facts as proven; or in choosing what inferences to draw from proven facts. Such
“common
sense” is also crucial in credibility judgements of our own
clients or potential witnesses, as well as in formal hearings.
The law may
assume that rape victims will complain promptly, or that children are less
reliable witnesses. Judges may make these
assumptions explicit. In a highly
publicised rape case in Victoria, a judge remarked “... in the common
experience ... ‘no’
often subsequently means
‘yes’”.25 More recently, a
three-judge panel in Italy is reported as having similarly emphasised common or
universal experience regarding the
impossibility of jeans being removed from a
woman without the consent of the wearer.26
Yet, as
we all know, much experience is not “common”. Behaviour, reactions
and perspectives are all governed, to some
extent, by sexual
difference27 — as well as differences based on
age, race, ethnicity, class, sexuality and other qualities. Hence —
not all triers of fact will accept the same generalisation. For example, from
evidence that a witness has made a prior inconsistent
statement, one trier of
fact may infer that the witness is uncertain and thus not credible, while
another may infer that the witness
is thoughtful and flexible, and therefore
more credible.28
“Common sense”
knowledge, as used in law, does not acknowledge these specificities, but
substitutes the knowledge, experience
and perspective of the group which has
dominated legal and public life, that is, older, white, educated, heterosexual
males. The
experiences and perceptions of this group are defined as normal and
common and universal. Other experiences or perceptions are regarded
as
unreasonable or aberrational. In contrast, “[w]hat ‘everyone
knows’ when they live life as a person of colour,
a woman or a person in
poverty, turns out to be surprisingly hard to prove under conventional rules of
evidence”.29
In the United States there have
been instances where a black judge or a woman judge was asked to disqualify
themselves from hearing
employment discrimination cases on the basis that they
would not be neutral.30 This request assumes that the
white males who are usually judges have no experiences or point of view at all,
or that their experiences
and point of view, however uniquely determined by
their own experiences as a white male person, represent neutrality and do not
constitute
a distinct perspective at all. These “ordinary” judges
see through a “clear pane of glass”, when others are
“tinted”. The assumption underlying these cases is that only blacks
have a race (which gives them a point of view); only
women have a gender; only
the poor or uneducated have features determined by class; and only
“ethnics” have a language
and a culture or an
accent.31 The reality is that every one of us is part
of a race, a gender, an age group, a class, and a culture, which profoundly
affect our
own values and perspectives and the ways that others respond to
us.
The very automatic and inarticulate nature of these thinking and
emotional processes makes it difficult for us to see and examine
them, but it is
essential to an understanding of evidence law that we do so.
DEVELOPING AWARENESS OF ONE’S OWN CULTURAL/SOCIAL ASSUMPTIONS
Thus, part of the project for my evidence class is
one of self-analysis: getting the students to look inside themselves and to see
that they are equipped with a whole set of personal and cultural beliefs they
may not be aware of, but which profoundly influence
the way they think about the
world around them and the people in it, and to see that others have beliefs
which may be very different,
but seem just as completely “natural”
and self evident to them.
Two exercises are used in lectures to illustrate
the use of culturally specific knowledge to draw inferences and to raise
awareness
of assumptions.
Exercise 1: the Birthday Party32
Billy went to Johnny’s birthday party. When
all the other guests were there, Johnny opened his presents. Later they sang
“Happy
Birthday” and Johnny blew out the candles. Was there a cake
at the party?
Is the only valid answer “don’t know?”,
or is “yes” a reasonable inference, based on Australian cultural
practices about children’s birthday parties? What are the various basic
facts and intermediate generalisations used to draw
a “yes”
conclusion? Examples might include the names: these are names usually used for
younger, rather than older people,
and they are widely used among people from a
background where children’s birthdays are celebrated a certain way.
Exercise 2: the Surgeon33
The second example is used to raise some awareness of how these assumptions may depend on stereotypes of gender, race or age.
A father and his son were out for a day’s drive. As they returned home, their car was hit by on oncoming car. The father is killed outright and his son is seriously injured. The boy is rushed to the hospital for emergency treatment. The hospital’s top orthopaedic surgeon is prepared and waiting, in the operating theatre. As the boy is wheeled in, the surgeon turns, sees the boy’s face says “oh no, it’s my son”. Who is the surgeon? [Assume there are no step or adoptive relationships in the story.]
EXAMPLES USED IN OTHER PARTS OF THE TOPIC
Having used the earlier classes to introduce students
to the “natural” process of evidence reasoning as an everyday
process,
and also to raise their awareness of the diversity of such
“natural” processes, I then attempt to reinforce these insights
with
other examples throughout the semester.
One such approach is to play excerpts
from popular songs. “Lipstick on Your Collar” is an excellent
example of drawing
inferences from circumstantial evidence, with the middle
steps in reasoning supplied by general cultural knowledge/beliefs, especially
about gender and heterosexual dating/mating conduct. “I Heard It on the
Grapevine” illustrates many concerns about hearsay
evidence, as the singer
points out “you could have to-o-old me yourself” as the preferred
alternative for presenting
the information.
Another approach is to choose
examples which raise issues of difference as part of teaching a particular
doctrine of evidence. For
example, the material from Graycar and Morgan, Work
and Violence: Including Gender in the Core Law
Curriculum34 is helpful on a number of topics, such
as judicial notice, and is readily available on the internet. Similarly, the
Queensland Criminal
Justice Commission Report, Aboriginal Witnesses in
Queensland’s Criminal Courts35 provides
extremely valuable information about the experiences of Aboriginal people, with
some attention paid to Aboriginal women.
Appellate decisions taught in the
evidence course are partly determined by the need to ensure that the leading
cases are included,
but where cases are used essentially for their illustrative
purposes, it is possible to choose cases that can also generate discussion
and
insight on issues of diversity. For example, R v
Plevac36 illustrates the res gestae principle
vividly and in a particularly horrific context, which allows and, indeed,
requires addressing
issues about women, men and violence. A similar choice is
possible when developing the facts in tutorial, workshop or assessment
problems.
Oral Evidence, Demeanour and Credibility
The requirement that evidence at trial be given
orally by a witness who is physically present rests, in part, on the belief that
observation
of demeanour is essential to assessing the credibility of the
witness.37 This belief is well entrenched in Western
culture. Examples include the recent consideration by the United States Senate
of whether
to call live witnesses in the impeachment trial of President Clinton,
and the popularity of the Eagles song “Lying Eyes”
(which was played
to the class). This leads to a detailed consideration of demeanour, speech and
credibility judgements in light
of diverse perspectives, as a way of challenging
evidence law’s assumptions about truth, credibility and oral
testimony.
Readings and lectures include social science research in
interpretations of demeanour and speech patterns as well as an in-class
demonstration
of a particular example of gender and speech. This information is
linked back to the ideas about diversity of perspectives from the
beginning of
the course. Considerable research has established that signals sent by demeanour
or non-verbal behaviour are not interpreted
in the same way by different
cultural groups. Further,
[t]here is no body motion or gesture that can be regarded as a universal
symbol. [Researchers] have been unable to discover any single
facial expression,
stance, or body position which conveys an identical meaning in all
societies.38
For example, silence can be quite
ambiguous or carry many different meanings in different social and cultural
contexts. Among many
Aboriginal people, “ ... silence is a common and
positively valued part of conversation” which can show thought,
discomfort,
lack of understanding, lack of cultural authority to speak on the
topic (because of age, gender, kinship factors) or disagreement.
However, in
court silence can be “misinterpreted as agreement, ... insolence, or
guilt”.39
Similarly, many of the behaviours
most commonly thought to indicate deception, such as avoidance of gaze, postural
shifts or head
movements, actually occur less often in those consciously
attempting to deceive, while qualities such as tone of voice, which are
harder
for most of us to control, can be more helpful in identifying
deception.40 Research suggests that “few people
do better than chance in judging whether someone is lying or truthful ... and
most people
think they are making accurate judgments even though they are
not”.41
The assumptions about the naturalness
of one’s own perspective described above contribute to erroneous
judgements of credibility.
Research indicates that if an observer assumes the
speaker is telling the truth, the observer will focus on the face and other less
reliable visual cues, which may simply reinforce the pre-existing assumption of
truthfulness.42 If the initial assumption of
truthfulness and the expectations about appropriate behaviour are based on
assumed similarities to the
observer’s personal and cultural perspectives,
or if an initial concern about reliability is based on a negative stereotype,
interpretations of demeanour can lead to mistaken evaluations of credibility.
When the experiences and socialisation of a decision
maker are different from
those being evaluated, and if those making decisions are not sufficiently aware
of their own cultural beliefs
and expectations, serious injustice can occur.
Because the law has the power to label its perceptions as truth, all of us who
are
involved in the legal system have an obligation to ensure that our
judgements about credibility are as accurate and as fair as possible.
Speech Patterns and Credibility
Misperceptions of demeanour and erroneous judgments
of credibility are not mere misunderstandings, nor are they simply random errors
which any system will inevitably have. These differences reflect and reinforce
systematic social disadvantage and distinctions imposed
by our society upon men
and women. A particular example which I explore in some detail is the nature and
effect of different speech
patterns,43 to illustrate
how difficult it can be to perceive the distinctions in our world and to show
the harm which can be caused by not being
aware of these distinctions. The
discussion emphasises gender. Much, though not all, of what is said about women
and the sources
of their disadvantage may be applicable to other individuals or
members of outsider or subordinated groups who suffer from social
disadvantage,
such as poor people, migrants, young people or those subject to racial
discrimination. Note that these categories are
not necessarily mutually
exclusive. Women are more likely to be poor and Aboriginal women suffer distinct
disadvantages. Also, any
discussion of gender or disadvantage in generalities
needs to be undertaken with care. Not every woman all the time is disadvantaged
as against all men in all situations. Nonetheless, there are characteristically
gendered patterns of disadvantage in our society,
and speech patterns provide
one example of how difference can become disadvantage.
Assessing the
credibility of a particular speaker is affected by social expectations about how
a credible speaker is supposed to sound.
Research has identified some of the
qualities which are associated with more powerful or more credible
speech.44 Examples of language features associated with
powerlessness include: superlatives (“the greatest”), intensifiers
(“so”,
“such”), fillers (“um”, “you
know”), qualifiers (“maybe”, “perhaps”),
empty
adjectives, tag questions with rising intonation (even with an accurate
assertion, for example, “Tasmania is part of
Australia, isn’t
it?”), hedges (“sort of”), and politeness
markers.45
Other research suggests that women and
men are expected to and do display some differences in speech. It appears that
the speech qualities
associated with power and credibility are more likely to be
displayed by a male speaker, whereas the qualities more likely to be
used by,
and socially appropriate for, women are those associated with powerless and
lessened credibility. This is not to assert
that all women speak a certain way,
and that all men speak a certain other way. What differences exist may be
slight; there are large
areas where speech patterns are common, and class, age,
education and context, including the particular power relationship between
the
speakers are all significant factors. Indeed, in many contexts, these other
factors will be more important than gender.46
Nonetheless, certain qualities or behaviours are more often or more likely to be
displayed by men or women, in part because of different
social expectations
about appropriate masculine and feminine behaviour or different social
experiences of men and women. These differences,
when they occur, can have
negative consequences for the evaluation of women’s credibility and are
part of a pattern of disadvantage.
When I give lectures or speak at
conferences or in professional legal or academic settings, I use speech styles
associated with powerful
(for example, masculine) speakers. If I were to speak
in a characteristic (socially appropriate) female style (“um,
y’know,
like this”), and in a softer, higher pitched voice with a
rising, questioning intonation at the end of statements or, worse,
in the accent
of my native American South, listeners would take what I say much less
seriously. A brief demonstration of the different
styles usually makes the
point.
The link between speech and cultural power is clear:
We would suggest that the tendency for more women to speak powerless language
and for men to speak less of it is due, at least in
part, to the greater
tendency of women to occupy relatively powerless social positions ... [F]or men,
a greater tendency to use the
more powerful variant ... may be linked to the
fact that men much more often tend to occupy relatively powerful positions in
society.47
The cumulative effect of these patterns
makes it much harder for a woman (or any person lacking social power) to be
perceived as an
effective speaker and will cause her to be regarded as less
credible, even when she is accurate and honest. Denial of credibility
in this
way is not aberrant or unusual behaviour; it is but one instance of an overall
social context in which some are powerful
and others are subordinate, a
hierarchy that is accepted as natural. It is also self-perpetuating:
“[p]owerless language may
be a reflection of a powerless social situation,
but it also would seem to reinforce such inferior
status”.48 However ”natural" these
assessments of credibility may seem, it is still a form of bias which
effectively denies equality in
society generally, and specifically in law. This
denial of equality is reinforced by the rules of evidence law which insist on
oral
evidence from a witness physically present in the courtroom.
CLASSES SPECIFICALLY ON GENDER/RACE/EVIDENCE
I have been discussing ways in which I attempt to
embed issues of difference into the basic concepts of the evidence course and
the
fundamental nature of reasoning about facts. There is also a lecture and a
workshop specifically on gender and race, which also consider
some aspects of
sexuality and class.
For many of us, issues of race/sex are difficult to
think about, to speak about and to teach about. It requires exposure of aspects
of life regarded as private and exploration of attitudes and experiences that
may be painful. Nonetheless, it must be directly taught,
because
beliefs/views/experiences about race/gender constantly impact on the law
generally and evidence law specifically, both within
the practical operation of
the adversary trial and at the levels of doctrine and theory. This impact does
not occur only in the law
relating to sexual assault, though that is perhaps the
most visible area, and is the focus of the lecture and the workshop.
The
classes are explicitly linked back to the earlier exploration of the ways social
and cultural perspectives impact on reasoning
about facts, as in the birthday
party story and the surgeon story. They are also linked to readings from Graycar
and Morgan,49 McRae,50 the
Queensland Criminal Justice Commission51 and Pia van de
Zandt.52 The readings describe the reality of court
room experience for some Aboriginal people and for witnesses testifying about
sexual assault,
with particular recognition of the specific barriers facing
Aboriginal women. The lecture clearly acknowledges that others suffer
from the
indignities of the legal system, and that there are many sources of social
disadvantage. The choice to concentrate on gender/race
and its intersection is
explained on the basis of my own experiences and perspective and the relative
availability of a range of
materials to be used for teaching. The particular
doctrinal areas addressed are “prompt” complaint, cross-examination
— especially about prior sexual history — and corroboration issues.
The basis for these lectures is largely drawn from
a work edited by
Easteal,53 which reviews recent changes to rape law and
associated evidence rules. A few of the main points are set out below.
Prompt Complaint
The exceptional nature of some of the evidentiary
rules in sexual assault cases are pointed out. In general, prior consistent
statements
are not admissible in the examination-in-chief of a
witness.54 One exception to this is a
“prompt” complaint from a victim of sex assault (adult or child),
where the complaint is used
to support the credibility of the
complainant.55
What is the logical relevance of a
prompt complaint to support credibility? Drawing an inference of enhanced
credibility depends on
the assumption that a person who has been sexually
assaulted will behave in a certain way — complain immediately. Therefore,
a person who acts in that way is more credible, and conversely, a person who
does not act that way is less credible.56
As an
assumption of fact regarding typical victim behaviour, this is clearly
wrong.57 There are many barriers which prevent victims
of sexual assault, whether man, woman or child, from speaking to anyone. In the
lecture,
I ask the class to reflect on and discuss what some obstacles might be,
and what additional barriers might be faced by Aboriginal
women, or members of
other marginalised social groups.
Cross-examination
Wigmore’s characterisation of cross-examination
as “the greatest legal engine ever invented for the discovery of
truth”58 continues to haunt the adversary system
and assumes particularly damaging importance in sexual assault cases. In
general, the cross-examiner
may ask any question relevant to an issue, such as
the victim’s consent, the accused’s belief in the consent, the
sexual
contact alleged, or any questions relevant to the witness’s credit.
The importance of cross examination is a key factor in
the law’s emphasis
on oral testimony from a witness who is physically present in the
court.
Heroines of Fortitude describes in some detail the nature and
extent of cross examination facing women who testify about sexual
assault.59 The complainant must repeatedly describe the
smallest details of sex acts, endure repeated suggestions that she is lying,
even if
corroboration and/or injuries are present, as well as defend her
allegedly sexually provocative behaviour and clothing, such as wearing
a
swimsuit. Research suggests that jurors are clearly influenced by information
about drinking, drug use, sex outside marriage and
prior social acquaintance
between the defendant and victim, and will deem the victim at least partly to
blame, whether the defence
is claiming there was consent or that there was no
sexual intercourse.60
Often, such questions attempt
to reinforce certain stereotypes of women: as liars;61
that she asked for it; that she has an ulterior motive, a grievance, or has been
scorned by her alleged attacker; (if the accused
is wealthy) that she is a
golddigger; and that she is an exaggerator, a fantasiser or is simply
delusional.62 “[B]ecause women lie” she
becomes the wrongdoer, and “it is really men who need
protection”.63
The experience of such cross
examination is very distressing to the witness. In 65 per cent of trials studied
in Heroines, breaks were needed to assist witnesses in distress. The
experience is especially difficult for Aboriginal women, because of language
differences, such as unfamiliarity with the English terms for sexual acts or
parts of the body, and a cultural reluctance to discuss
some sexual matters in
the presence of men.64
One especially distressing
feature is questioning about sexual experience and prior sexual acts. At common
law, sexual reputation
and sexual experience were regarded as relevant to
credibility and to the issue of consent.65 The alleged
“logic” was that, in a woman, a bad character for chastity equalled
a bad character for truth and might also
show a propensity to engage in sex.
Now, most jurisdictions have enacted a so called “rape shield” law,
to limit cross-examination
about prior sexual conduct which could be the basis
for these clearly unfounded inferences. However, the impact of rape shield laws
has been less than reformers hoped, and it appears that judges are readier than
one might think to find relevance in questions about
prior sexual
conduct.66 Research suggests that evidence of prior
sexual acts was raised without applying for leave in 30-40 per cent of
trials.67
In this area, evidence law assumes and constructs a particular pattern of heterosexual sexual relations in which voluntary sex is presumed to be repeated, making it difficult for sex to be credibly refused — a particularly damaging construction, as most rapes occur between acquaintances.68
Corroboration
There is an inherent obligation on a trial judge in a criminal case in Australia to warn the jury in relation to certain kinds of evidence thought by law to be inherently unreliable and/or especially likely to appear more reliable to a jury than it really is. At common law, there was no fixed legal requirement of corroboration of the testimony of a complainant in a sexual assault case, though judges were expected to warn that it would be unsafe to convict without corroboration.69 The usual form of warning given in Australian courts was derived from the English case of R v Henry70 in which Salmon LJ said:
... in cases of alleged sexual offences, it is really dangerous to convict on
the evidence of the woman or girl alone ... because
human experience has shown
that in these courts girls and women do sometimes tell an entirely false story
which is very easy to fabricate
but extremely difficult to refute. Such stories
are fabricated for all sorts of reasons, which I need not now enumerate, and
sometimes
for no reason at all.71
This requirement
for corroboration has been formally abolished in most
jurisdictions,72 based on a clear recognition that such
generalisations have no basis in fact.73 Thus,
Australian law no longer officially supports the worst myths about women as
subtle malicious liars in sexual matters.74 However,
judicial interpretation of the legislation abolishing corroboration warnings
emphasises the inherent power of courts to
give guidance in relation to such
evidence.75 This has meant that continued warnings are
the norm, not the exception, in trials. The current practice appears to be for
judges to
direct juries that they should be careful of a complainant’s
testimony and evaluate it in the light of human experience, or
that they should
scrutinise it with care, though they may act on it even without corroboration if
they are satisfied.76 If there is no corroboration,
judges continue to warn juries that it would be dangerous to convict on the
woman’s testimony
alone.
Thus, judges still cast unwarranted doubt on
women testifying about sexual assault in ways that construct and maintain a
particularly
negative image of women as lacking the capacity for speaking
truthfully about sex and being particularly adept at concealing their
falsehoods.77
Casablanca
To lighten up what can become a very intense and
negative message, at the end of the lecture I show a short excerpt from the film
Casablanca. In the clip, we see Rick (Humphrey Bogart) and Ilsa (Ingrid
Bergman) together in Rick’s apartment in Casablanca during World
War II.
She begs him for documents needed to allow her husband to leave safely, then
draws a gun and threatens to kill him when he
refuses. He steps closer to her
and urges her to go ahead and shoot, whereupon she begins crying and recalls how
much she loved him
in Paris, when they became separated by the war. They embrace
and the film cuts away to show a lighthouse with a blinking light,
then returns
to the apartment where Rick, still in white dinner jacket and tie, is smoking a
cigarette and looking out the window,
and Ilsa is sitting on the couch
explaining how she came to leave Paris.
The students are asked whether Rick
and Ilsa have had sexual intercourse.78 The ensuing
discussion raises a number of the cultural assumptions about heterosexual
intercourse (as well as film-making conventions)
and views can be sharply
divided, though not necessarily along gender lines.
The Workshop
The problem set for the workshop is technically and emotionally challenging. It is set in a university and involves a sexual assault allegedly perpetrated on a first year female student by a group of final year male students. The students are asked to respond in the role of defence counsel. I consulted widely when preparing the problem, to avoid reinforcing stereotypes or creating particular and inappropriate discomfort for students. In 1998, the problem involved an Aboriginal student as complainant and a wealthy white student as the accused. In 1999, no racial or class characteristics were given, and one of the discussion questions asked students what characteristics they had attributed to the participants. In the lecture, I explain the reasons for setting the problem, including the importance of learning to discuss difficult issues in a professional setting and the need to practice doing so in a relatively protected space before being confronted with such a challenge in a more demanding setting. I also make clear that, although workshop contributions are usually assessed, any student who did not wish to be assessed for this workshop should simply indicate as such to myself or the tutor, and they could choose to attend or not. I found that students did attend and the discussion was generally quite thoughtful and respectful, and conducted in a generally distant, professional voice, rather than a more personal one, as other classes sometimes were.
ASSESSMENT
The fourth step in the treatment of issues of race
and gender in the evidence class is to ensure that these ideas are assessed, as
that, realistically, will drive student learning.79 The
assessment in 1998 consisted of class participation and an end of year
examination, which included a problem worth two-thirds
of the examination mark
and an essay worth one-third. In 1999, a written assignment, which required
problem analysis and consideration
of assumptions about human behaviour, was
added.
The assessment problems are drafted with care, to avoid raising
personal emotional difficulties for students. Issues which might be
distressing,
such as those relating to sexual assault, are raised only in the essay question,
where students have a choice. Issues
of gender, race, diversity and cultural
assumptions will arise in the problem, usually as part of initial determinations
of relevance,
as well as in an essay. Students who are able to discern and test
unreliable generalisations as part of their reasoning about facts
will see more
issues and will receive a better mark. This is made clear to them in classes
when discussing what is expected in the
examination.
Student evaluations of
the course were generally favourable. There was very strong agreement that the
subject was challenging [6.5
on a 7 point scale], and there was also strong
agreement that the subject was difficult [5.4], with a fairly heavy workload
[5.2]
and was presented at a fast pace [5.7]. At the same time, there was
substantial agreement that the assessment was fair [5.7], that
they understood
the subject matter [5.8], and that they had a positive attitude to the subject
[5.8]. There was a strong view that
the aims of the topic were implemented
[6.0], which suggests that the basic focus on facts and reasoning from facts was
accepted.
Taking these findings together suggests that the students were willing
to accept and even be enthusiastic about a subject which is
both doctrinally
difficult and which deals in a serious way with issues of diversity.
CONCLUSION
Because issues of race, gender and diversity are
considered to be central to the fundamental evidentiary concepts of relevance
and
proof, they are raised from the very beginning of the evidence course and
are re-emphasised in different ways throughout the semester.
In this way, the
issues are not marginalised and do not take time away from aspects of doctrine
which we must cover. Inevitably,
fewer exclusionary rules, or fewer exceptions
to them, are covered, but it appears that the approach used enables students to
recognise,
understand and apply those variations when they come across
them.
We live in a world where personal characteristics and social attitudes
have an impact on everything we do. By formulating objectives
largely in terms
of student ability to work with facts by identifying relevance, use and the
chain of reasoning employed, I hope
to enable students to reason better about
information, and the conclusions which can be drawn from it, in any context.
* An earlier version of this paper was given at the Second National Evidence Teachers Conference, 19–20 February 1999, Sydney, where participants made many helpful comments. Thanks also to James Wyatt and Steven Clark for editing assistance.
** Associate Professor, Flinders University Law School.
©2000. [2000] LegEdRev 2; (2000)
11 Legal Educ Rev 57.
1 In 1998, Evidence was taught as one semester of the full year 9 unit topic Litigation. In 1999, Evidence became a separate 3 unit one semester topic. It is taken by final and penultimate year students.
2 A Palmer, Principles of Evidence (Sydney: Cavendish Australia, 1998) 1.
3 A Palmer, comments at the Second National Evidence Teachers Conference, 19–20 February 1999, Sydney.
4 J Jackson, Analysing the New Evidence Scholarship: Towards a New Conception of the Law of Evidence (1996) 16 Oxford Journal of Legal Studies 309.
5 M Davies, Asking the Law Question (Sydney: Law Book Company, 1994) 175–176.
6 Id at 226.
7 A Taslitz, What Feminism Has to Offer Evidence Law (1999) 28 Southwestern University Law Review 171.
8 A Ligertwood, Australian Evidence 3rd ed (Sydney: Butterworths, 1998) 42 (emphasis added).
9 M Aronson and J Hunter, Litigation: Evidence and Procedure (Sydney: Butterworths, 1998) 670; Ligertwood, supra note 8, at 50; Jackson, supra note 4, at 314–315.
10 For example, s 55 of the Evidence Act 1995 (Cth) states that “The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”
11 Jackson, supra note 4, at 314; Ligertwood, supra note 8, at 6.
12 M McCrimmon, The Social Construction of Reality and the Rules of Evidence (1991) 25 University of British Columbia Law Review 36, at 37. See also J Cohen, Freedom of Proof, in W Twining and A Stein eds Evidence and Proof (Aldershot: Dartmouth, 1992).
13 See examples in discussion of “Perspectivity and Evidence”, below.
14 Jackson, supra note 4.
15 B Fraser, New Diversity in the American Workplace: A Challenge to Arbitration (1992) 47(1) Arbitration Journal 9. See also: R Delgado and J Stefancic, Norms and Narratives: Can Judges Avoid Serious Moral Error? (1991) 68 Texas Law Review 1929; and the comment “We are all situated actors, whose selves, imaginations, and range of possibilities are constructed by our social setting and experience", as cited in L Sarmas, Storytelling and the Law: A Case Study of Louth v Diprose [1994] MelbULawRw 8; (1994) 19 Melbourne University Law Review 701, at 725.
16 Fraser, supra note 15, at 10.
17 Jackson, supra note 4, at 319.
18 Id, citing A Tversky and D Kahneman, Causal Schemas in Judgements under Uncertainty, in D Kahneman, P Slovic and A Tversky eds, Judgements under Uncertainty: Heuristics and Biases (Cambridge: CUP, 1982) 117.
19 Jackson, supra note 4, at 319.
20 A Goldsmith, What’s Wrong with Complaint Investigations? Dealing with Difference Differently in Complaints against Police (1996) 15 Criminal Justice Ethics 36, at 45–46, citing D Binder and P Bergman, Fact Investigation: From Hypothesis to Proof (St Paul: West, 1984).
21 J Armour, Colour-Consciousness in the Courtroom (1999) 28 Southwestern University Law Review 281.
22 Jackson, supra note 4, at 325.
23 McCrimmon, supra note 12; R Graycar, The Gender of Judgments: An Introduction, in M Thornton ed, Public and Private: Feminist Legal Debates (Melbourne: OUP, 1995).
24 A Althouse, The Lying Woman, The Devious Prostitute, and Other Stories From the Evidence Casebook (1994) 88 Northwestern University Law Review 914, at 924; K Kinports, Evidence Engendered (1991) University of Illinois Law Review 413, at 431. See also Sarmas, supra note 15, at 726, discussion at n 157.
25 Senate Standing Committee on Legal and Constitutional Affairs, Gender Bias and the Judiciary (Canberra: AGPS, 1994) 8–9.
26 Jeans on Trial in Rape Case, The Weekend Australian, 13–14 February 1999, at 17.
27 McCrimmon, supra note 12, at 39.
28 D Binder and P Bergman, Fact Investigation: From Hypothesis to Proof (1984) 135, as quoted in Goldsmith, supra note 20, at 45.
29 K Scheppele, Manners of Imagining the Real (1994) 19 Law and Social Inquiry 995, at 997.
30 M Minow, Stripped Down Like a Runner or Enriched by Experience: Bias and Impartiality of Judges and Jurors (1992) 33 William and Mary Law Review 1201, at 1207.
31 Id.
32 N Pennington and R Hastie, A Cognitive Theory of Juror Decision Making: The Story Model (1991–92) 13(2) Cardozo Law Review 519, at 523.
33 C Maughan and J Webb, Lawyering Skills and the Legal Process (London: Butterworths, 1995).
34 (DEET,
1996);
http://www.anu.edu.au/law/pub/teaching_materials/genderissues/
35 Queensland Criminal Justice Commission, Aboriginal Witnesses in Queensland’s Criminal Courts (Toowong, Qld: Criminal Justice Commission, 1996).
37 L Re, Oral v Written Evidence: The Myth of the “Impressive Witness” (1983) 57 Australian Law Journal 679; J Hunter and K Cronin, Evidence, Advocacy and Ethical Practice: A Criminal Trial Commentary (Sydney: Butterworths, 1995) 326–31.
38 R Birdwhistell, Kinesics and Context: Essays on Body Motion Communication (Philadelphia: Uni Pennsylvania Press, 1970) as cited in Fraser, supra note 15.
39 Queensland Criminal Justice Commission, supra note 35, at xii, 23–24, 27.
40 J Blumenthal, A Wipe of the Hands, a Lick of the Lips: The Validity of Demeanour Evidence in Assessing Witness Evidence (1993) 72 Nebraska Law Review 1157.
41 P Ekman, Telling Lies (1985) 13, cited in Fraser, supra note 15, at 5–15.
42 Blumenthal, supra note 40, at 1200.
43 The information about speech patterns described here has been included in previous research which considered its implications for women’s testimony about sexual assault and for alternative dispute resolution. See K Mack, Continuing Barriers to Women’s Credibility: A Feminist Perspective on the Proof Process (1993) 4 Criminal Law Forum 327, at 330–31 and K Mack, Alternative Dispute Resolution and Access to Justice for Women [1995] AdelLawRw 10; (1995) 17 Adelaide Law Review 123, at 130–32.
44 J Conley, W O’Barr and E Lind, The Power of Language: Presentational Styles in the Courtroom (1978) Duke Law Journal 1375.
45 S Ross, Proving Sexual Harassment: the Hurdles (1992) 65 Southern California Law Review 1451, at 1455, citing Conley, O’Barr and Lind, supra note 44, 1380–81, 1386; C Morrill and P Facciola, The Power of Language in Adjudication and Mediation: Institutional Context as Predictors of Social Evaluation (1992) 17 Law and Social Inquiry 191, at 193.
46 Morrill and Facciola, supra note 45; C Epstein, Deceptive Distinctions: Sex, Gender and the Social Order (1988), ch 10; B Preisler, Linguistic Sex Roles in Conversation : Social Variation in the Expression of Tentativeness in English (Berlin, NY: Mouton de Gruyter, 1986) ch 8, discusses hedges and tag questions, chs 9 and 10 discuss age. Some criticism of this research is contained in D Spender, Man Made Language 2nd ed (London: Routledge and Kegal Paul, 1985) ch 1, and in S Mills, Discourse Competence: Or How to Theorise Strong Women Speakers (1992) 7 Hypatia 4. See also C Morrill, M Johnson, and T Harrison, Voice and Context in Simulated Everyday Legal Discourse: The Influence of Sex Difference and Social Ties (1998) 32 Law and Society Review 639.
47 W O’Barr and B Atkins, “Women’s Language” or “Powerless Language” in S McConnell-Ginet, R Borker and N Furman eds, Woman and Language in Literature and Society (New York: Praeger, 1980) 104.
48 Id at 110.
49 “Evidence, Fact, Truth”, “Fact finding”, “Judicial Notice”, “Credibility” in Graycar and Morgan, supra note 34.
50 “Court Testimony”, in H McRae, G Nettheim and L Beacroft, Indigenous Legal Issues: Commentary and Materials 2nd ed (North Ryde, NSW: LBC, 1997) 366–71.
51 “Executive Summary”, “Aboriginal Women” and “Proposed Directions to Jury”, in Queensland Criminal Justice Commission, supra note 35.
52 P Van de Zandt, Heroines of Fortitude, in P Easteal ed, Balancing the Scales: Rape, Law Reform and Australian Culture (Leichhardt, NSW: Federation Press, 1998).
53 Esteal, supra note 52.
54 Ligertwood, supra note 8, at 480–81.
55 Id at 482.
56 M v R [1994] HCA 63; (1994) 181 CLR 487, 513 per Gaudron J in dissent.
57 S Bronitt, The Rules of Recent Complaint: Rape Myths and the Construction of the “Reasonable” Rape Victim, in Easteal, supra note 52, at 41–58.
58 Ligertwood, supra note 8, at 503.
59 Sexual Reputation and Sexual Experience, in NSW Department for Women, Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault (Woolloomooloo, NSW: NSW Department for Women, 1996) 223–52.
60 GD LaFree, Rape and Criminal Justice: The Social Construction of Sexual Assault (Belmont: Wadsworth, 1989) 226–28.
61 AD Ronner, The Cassandra Curse: The Stereotype of the Female Liar Resurfaces in Jones v Clinton (1997) 31 UC Davis Law Review 123.
62 Id.
63 Id at 140.
64 Queensland Criminal Justice Commission, supra note 35.
65 Ligertwood, supra note 8, at 164–70; T Henning and S Bronitt, Regulating the Use and Abuse of Sexual History Evidence, in Easteal, supra note 52, at 77–80.
66 Henning and Bronitt, supra note 65.
67 Id at 90.
68 Easteal, supra note 52.
69 Law Reform Commission of Victoria, Rape and Allied Offences: Procedure and Evidence, Report No 13 (Melbourne: Law Reform Commission of Victoria, 1988) 39; Ligertwood, supra note 8, at 203.
71 Id at 153.
72 Evidence Act 1929 (SA) s 34I(5); Crimes Act 1958 (Vic) s 61; Evidence Act 1971 (ACT) s 76F; Sexual Offences (Evidence and Procedure) Act 1983 (NT) s 4(5), (6); Evidence Act 1995 (NSW) ss 164–65; Criminal Code 1924 (Tas) s 136; Evidence Act 1906 (WA) s 50; Evidence Act 1995 (Cth) ss 164–65.
73 K Mack, “You Should Scrutinise Her Testimony with Great Care”: Corroboration of Women’s Testimony about Sexual Assault, in Easteal, supra note 52. For a clear judicial recognition of this, see Coldrey J comment in Ware, “[i]t may be doubted whether the historical rationale advanced ... was ever founded upon more than ... specious generalisation”: (1994) 73 A Crim R 17, 30.
74 Longman v R [1989] HCA 60; (1989) 168 CLR 79.
75 Id.
76 Easteal, supra note 52.
77 J Temkin, Rape and the Legal Process (London: Sweet & Maxwell, 1987) 134.
78 Thanks to Prof Richard Maltby, Screen Studies, Flinders University of South Australia for suggesting this teaching exercise.
79 M Le Brun and R Johnstone, The Quiet (R)evolution: Improving Student Learning in Law (Sydney: Law Book Company, 1994) 178–81.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/LegEdRev/2000/2.html