Oscar Pistorius testified in his own defense in the North Gauteng High Court a few weeks ago. The evidence that he tendered sparked huge debate as to how he fared as a witness. Questions are being raised regarding his testimony and people are asking, did he damage his defense and if so, how much?
The golden rules for any witness taking the stand in a court of law include: – listening very carefully to the questions posed and answering only the questions posed; keep it concise and to the point; never be argumentative and always be honest, open and direct.
When evaluating a witness the courts weigh up a number of criteria in order to assess the testimony of the person taking the stand. All evidence adduced by any witness is thoroughly tested in cross examination, which can be both rigorous and lengthy as in the case of Oscar Pistorius. Should the prosecution be unable to complete its cross examination of a witness for the defense, for any reason, the entire testimony of the witness will be struck from the record, and it will be as if they never took the stand at all. For this reason it was imperative for the defense, that Pistorius complete his testimony and place his version of events on the record.
So how did Oscar Pistorius fare?
THE APPOLOGY
Pistorius began his testimony with an apology to the family and friends of Reeva Steenkamp. He was teary and very emotional as he tendered this evidence which he aimed at Mrs. Steenkamp, Reeva’s mother. The general feeling in court on his apology, by both Reeva’ Steenkamp’s family and friends and most of the journalists in attendance, was that this statement was, firstly a ploy to garner public sympathy and secondly came a year too late. Many defense attorneys are concerned that the tendering of this apology may actually prejudice his case.
EVIDENCE IN CHIEF
As Advocate Barry Roux led Pistorius through his evidence in chief he managed to cope fairly well emotionally. However, what became evident was that his emotions were triggered by images of Reeva Steenkamp’s body, as well as by any testimony that was led regarding the injuries that she sustained. Pistorius evidence focused primarily on his upbringing, his good character, his experiences with crime and on the loving, caring and generally happy relationship he claimed to have enjoyed with Reeva Steenkamp. He testified to the events that unfolded on the evening that ended with him killing Reeva and placed his version of events on record. What did emerge in my opinion was that this evidence was carefully scripted and well rehearsed. There were no real surprises as he explained away all of the charges levelled against him.
This changed dramatically at the start of cross examination as Prosecutor Gerrie Nel ripped into his testimony, tearing his version of events apart and accusing him of, “tailoring his evidence”.
AVOIDING RESPONSIBILITY
Advocate Nel opened his cross-examination of Pistorius by showing the court a photograph of Reeva Steenkamp’s blood soaked body. He asked Pistorius if he understood what he had done! Pistorius answered by saying he made a “mistake”. Nel then said,” You shot and killed Reeva, say it!” inviting Pistorius to take responsibility for his act. Pistorius broke into uncontrolled sobs , refusing to even look at the photo and repeatedly responded that he,” made a mistake”, before finally uttering, “I did”. This pattern emerged on a daily basis as Pistorius refused to take responsibility for his reckless and irresponsible behaviour. He consistently placed the blame for each alleged criminal act, squarely on the shoulders of others. In the end we saw him blaming his legal team for failing to represent him properly, in effect accusing them of incompetence.
The fact that Pistorius consistently refused to take responsibility for his behaviour will be of concern to the court. I perceive a lot of regret in Pistorius, but it seems to be primarily focused on the implications of killing Reeva and the fallout he is experiencing as a result. His life, his career, and his future. This highlights the narcissistic personality traits apparent in Mr. Pistorius.
AVOIDING THE QUESTIONS
Early in his cross examination it became clear that Mr. Pistorius would be on the stand for at least a few days. As Advocate Nel posed question after question to him, Pistorius focused on avoiding answering the questions directly, and reverted to placing drawn out scripted testimony on record. Nel was forced to keep stopping him, asking him if he understood the question and then requesting an answer. The result of this tactic was that Mr. Pistorius opened many doors for the prosecution, giving them a huge amount of unsolicited information. This consistent avoidance brings his credibility as a witness into sharp question.
EMOTION AS A DECOY
As the cross examination became more intense, time and time again, I observed Oscar Pistorius use emotion as a decoy. When things got difficult he would simply start to talk in a high pitched, whining, crying voice. Initially, specifically when the topic of Reeva’s Injuries were raised, I noticed a strong physiological reaction, congruent with emotionality and crying. However, as time went by this physiological reaction was no longer apparent to me and there was a disconnect between his vocal and physiological reactions. The swallowing, runny nose, tear stained eyes, that usually accompany crying were simply not visible. The Judge was very mindful of Pistorius emotional state, often halting court to confirm that he could continue. This was not done, as people have suggested, out of sympathy, or to “mother the accused”. The presiding officer has to keep one eye on the trial and one eye on the possible appeal, she has to make sure the accused is in a fit state to testify and is not compromised by his emotional state, thus closing the door on this being a basis for an appeal should he be convicted.
ARGUMENTATIVE
Besides being very emotional, I frequently observed an antagonistic, aggressive, combative and arrogant demeanour in Pistorius. He would argue at length with Nel, refusing to concede points, that seemed logical and obvious to me. One example that comes to mind was when Pistorius insisted that his finger was not on the trigger when he discharged Darren Fresco’s Glock 27 in Tasha’s restaurant. It was pointed out to him time and again that it is impossible to fire this weapon without your finger on the trigger as the safety mechanism is built in to the trigger. He dug in his heels insisting the gun just “went off”. This behaviour became a feature of Pistorius testimony, specifically when Nel questioned him on numerous inconsistencies in his evidence, repetitively calling his reliability into question.
TOO MANY HATS
Instead of concentrating on the evidence he was providing, Pistorius admitted to measuring and trying to calculate the consequences of every word that he uttered. ” I am fighting for my life” he said. Bizarrely, he essentially usurped the function of defense council, the prosecutor and eventually even the court as he told Advocate Nel that certain questions were irrelevant, insignificant and would carry no weight. The mental processes involved in doing this combined with the stress under which witnesses automatically find themselves would have simply been to great probably resulting in the inconsistent testimony he furnished.
THE ” I” FACTOR
As I sat and listened to Pistorius bemoan his fate, his suffering, his upbringing, his experiences with crime and his relationships with women and society in general, I was struck by how little focus there was on Reeva Steenkamp! Even when discussing his relationship with her, Pistorius focussed on what he wanted, he expected, and he needed from the relationship. This is indicative of a personality with deeply entrenched traits of narcissism which includes: having a grandiose sense of self-importance; being preoccupied with fantasies of unlimited success, power, brilliance, beauty, or ideal love; believing that he is “special” and unique and can only be understood by, or should associate with, other special or high-status people; requiring excessive admiration; having a very strong sense of entitlement, e.g. unreasonable expectations of especially favourable treatment or automatic compliance with his or her expectations; is exploitative of others to achieve his or her own ends; lacking empathy, e.g. being unwilling to recognize or identify with the feelings and needs of others; is commonly envious of others or believes that others are envious of him; regularly showing arrogant, haughty behaviours or attitudes. Narcissists often react aggressively and even violently in a narcissistic rage when challenged. In my opinion all these traits have been visible in Pistorius throughout the trial, both on the stand and off of it.
PUTATIVE PRIVATE DEFENSE VS AUTOMATISM
At one stage Pistorius appeared not to understand his own defense, telling the court that he was aiming the gun in the direction of the door, when before he realised it, “the gun went off” as he reacted in fear after hearing a noise. He thus effectively changed his defense from that of putative private defense to that of automatism or an involuntary automotive act, devoid of intent. Automatism means that the defendant was not aware of his or her actions when making the particular movements that constituted the illegal act. In contradiction a defense of putative private defense requires an intentional act aimed at stopping a perceived attack on oneself or another. The possible consequences of this evidence could be potentially disastrous for the defense and have left the waters very muddied legally, as these defenses are mutually exclusive and can never be used in conjunction with each other.
INDICATIONS OF DECEPTION
In my opinion and from what I observed in court there were a number of deceptive indicators apparent in Pistorius’ body language and linguistics during his testimony. These indicators include but are not limited to: – speaking in a monotone voice and not emphasising pronouns; – making a number of syntax and grammar errors;- using “we” instead of “I” or using distancing language “the accident”); -a lack of congruence between verbal content, reactions and gestures; -physical expression was limited and often stiff; -talking too much and avoiding the questions (deceptive people often speak more than natural, adding unnecessary details to convince you of their version…); -answering a question with a question; -deceptive witnesses are uncomfortable facing their accuser and may turn their head or body away (Pistorius refused to engage with Nel and faced away from him); -avoiding eye contact; -self touch gestures; -hands touching their face, throat & mouth when uncomfortable; -tenses, timing and duration of emotional gestures and emotions are off a normal pace (the display of emotion is delayed, stays longer than it would naturally, then stops suddenly); being unable to link feelings to the situations described; delaying answering questions by using long pauses; and speaking very softly.
It is always a risk to put an accused person on the stand and it will be interesting to see how the court interprets and accepts his evidence. In my opinion he was a problematic witness for the defense and did not present as overly credible or believable. There were just way too many inconsistencies and contradictions in his evidence. I did however believe him completely when he said that he shouted, “Get the F*** out of my house”. However I found myself wondering at whom this was directed? After a rocky start the defense will continue presenting its case on the 5th May 2014 when court reconvenes.
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