We do not teach children to be witnesses. It is not surprising therefore that the quality of witnesses varies enormously. As patients are to doctors so witnesses are to barristers and barristers will habitually refer to good or bad witnesses. A good witness is, first and foremost, truthful. A good witness is clear. A good witness is reasonable. A good witness is accurate.
The purpose of this blog is to help you be a good witness. This is not by way of coaching which is, quite rightly, completely forbidden. Instead this is intended to be a general survey of matters you may want to (try to) bear in mind if you are ever unfortunate enough to be a victim of or witness to a crime.
I was prompted to write this by a recent random attack on a person close to me who was alone at night in the street. This occurred without warning, was unprovoked and without any apparent motive. Mercifully no injury was inflicted and the assault was short lived but great distress and anxiety were unsurprisingly caused. As I reflected on this it occurred to me that in all the time I had known this person we had never had a discussion about what makes a good witness.
As a teenager I underwent First Aid training although have fortunately never had to deploy the skills I learnt and hope I never have to but it is a source of comfort to me that I have this essential background knowledge. I hope that what I set out here can remain in your background knowledge, ideally never needing to see the light of day.
If you have been unlucky enough to be the victim of violent crime you will be sadly familiar with the fight or flight response triggered by the massive adrenaline rush that accompanies such incidents. This response is very useful for the immediate preservation of life however it is unfortunately also what causes many people to be terrible witnesses. Panic and clear thinking don’t go hand in hand and while it is easy for me typing this in comfort to say don’t be a rabbit in the headlights, if you stare into them you will be blinded and will make a poor witness.
A remarkable experience many criminal barristers will be familiar with is reading witness statements containing descriptions of robbers or assailants, sometimes quite full descriptions, which when compared with CCTV footage of the incident are completely at odds with the appearance and clothing actually worn. It is an experience that better than any demonstrates the appalling danger of injustice posed by the honest but mistaken witness. Such witnesses can project the powerful persuasion of a conspicuous truth teller while inflicting worse damage to the fairness of a trial than the most skilful dissembler. You do not want to be one of these witnesses.
The case of Turnbull paved the way for recognition of the dangers that identification evidence presents and there is now a significant body of statute and case law that sets out the safeguards that must be in place before such evidence is allowed before the court, a precis can be found here.
But this is no law lecture instead here is some simple advice to ensure that you will never be an honest but mistaken witness:
- Panic - Stop panicking; easily said but if you can maintain some focus your observations will be fuller and much more likely to be accurate.
- DNA - If you are a victim of an assault and you have to defend yourself a grasp of your assailant’s hair or a scraping of their skin from under your nails will yield invaluable DNA evidence that can prove presence at the scene (this is obviously last resort stuff and if you can safely make good your escape without getting physical you should do so).
- Description - You will be asked for this the moment you call the police, it goes without saying the more the better. In our day to day lives we are not often called upon to provide full descriptions and it is astonishing how unobservant we can be. As a witness you want to be using your full attention. This is what the police will want: gender; ethnicity; age; height; build; hair colour & style; distinguishing features (tattoos, scars etc.); and clothing.
- Quality – In disputed identification cases the quality of a witness’ observation of the assailant is crucially important. The court will be concerned first with duration, many incidents are over in seconds almost all within a few minutes, the longer you have observed the assailant the less your identification can be attacked. Under no circumstances do you want your observation characterised as a 'fleeting glance' which usually signals game over for the prosecution. Distance is the second most important issue with face to face obviously being ideal. Obstructions – are you observing this through twitching net curtains veiled by foliage and behind parked cars, if so you’re not getting a good look. Lighting – is the street pitch dark or lit up like Old Trafford?
- The face – faces are exceptionally difficult to describe but, if observed for long enough, can be accurately picked out in an identification procedure. One problem with witnesses is that conventional social norms militate against gazing into stranger’s faces and if they have a weapon in their hand this becomes even more difficult. Shoes, clothing and the rest can be noted in a moment but it is the face that you need to fixate upon. Ideally you want to know it better than your mother's: sear it into your mind's eye.
- Write it down – as soon as the incident is finished write everything down, this is obviously particularly important with vehicle registrations, you will want to include as much detail of other potential witnesses as you can, if you have any artistic ability draw a picture of the assailant.
- Delayed recollection – the immediate aftermath of an assault is an extremely shocking period and often details of the incident will be recalled over time; it goes without saying that these must be communicated to the police as soon as possible.
- Sure – this word carries enormous significance in a criminal trial. The jury must be sure that the person in the dock is the person that assaulted you. If identity is disputed the defence will be saying that the jury can not be sure. This is important to know and bear in mind when witnessing an offence.
I readily acknowledge that much of the foregoing is obvious common sense and it would be preposterous to imagine that this blog will be at the forefront of your mind should you ever become a witness. But if just one thought can lodge in your subconscious it should be this: Good Looks not Fleeting Glances.
By way of a brief postscript and aside a vexed issue that is occasionally aired in discussions of gendered conduct is how men should walk down darkened streets. The sad reality is that for many women the sound of footsteps fast or slow behind them sets alarm bells ringing. What is not so often admitted is that the same is true for many men. Whether the fear is of robber or rapist fear is fear and it behoves all of us, men and women, not to engender unnecessary anxiety when we are out and about. Love thy neighbour and all that.