05.05.14 9:45 AM ET
Pistorius’s Cross-Examination Could Have Been Grounds for a Mistrial in a U.S. Court
Paralympic Oscar Pistorius will probably be found guilty of murdering his girlfriend, Reeva Steenkamp. His story about why he pumped four rounds of Black Talon bullets into the closed bathroom door of his Pretoria apartment is just too improbable, the hypothesis of an accidental shooting too far-fetched.
Pistorius, moreover, did not stand up well in the face of “pit bull” prosecutor Gerrie Nel’s “withering” five-day cross-examination in which he repeatedly changed his story and gave inherently incredible answers. To read the press accounts, the cross-examination “destroyed” Pistorius and “demolished” his credibility.
But if Pistorius did not come out well in the encounter, Nel did not either. An American lawyer might seriously question whether Nel’s techniques would have ever passed muster in a U.S. court—or, for that matter, in any court bound to guarantee the fair trial to which Oscar Pistorius is entitled. After all, a prosecutor’s role is not to pander to a ghoulish public with an insatiable appetite for sex and violence; it is to present the government’s evidence.
The cardinal rule of cross-examination is that the examiner must not make statements or make speeches. This is reserved for summation. The cross-examiner must ask questions. They may be leading or suggestive questions, but they must be questions. And, the role of opposing counsel and of the judge is to protect the witness from an overly zealous prosecutor. Nel’s approach was decidedly abusive and bullying. “Your version is concocted and tailored to fit the state’s case,” he thundered. “You are a liar,” Nel accused. His relentless hammering questions and improper statements drove Pistorius to tears. In a criminal trial this should never have been allowed to happen.
Nel began his flamboyant cross with a statement: “You shot and killed her. Say it—‘I shot and killed Reeva Steenkamp.’” Almost any judge would have sustained objection to this. Cross-examination is to ask questions, not to make declarative statements to test the story told on direct examination. A proper question might have been, “Did you shoot and kill Reeva Steenkamp?” This was undisputed anyway. Nel continued with his pattern of hectoring the witness, making bald statements that were not evidence and otherwise grandstanding to the public. “You are arrogant,” he said to Pistorius. He lectured the witness that the location of two ventilator fans was very important “because it will show you are lying.”
Then, Nel moved on to show Pistorius a shooting range video of his firing Black Talon bullets at a watermelon—an impact that the “blade runner” called a “zombie stopper.” The Black Talon is a jacketed hollow-point bullet with perforations designed to expand following impact with soft tissue. Its effect when it enters a human body is devastating.
Nel then showed Pistorius a gory photograph of Reeva’s wounded head and declaimed, “It exploded, you know, the same thing happened to Reeva.” The judge in fairness ruled out this outrageously irrelevant comparison.
Of course these remarks, if said in front of a jury, might have been grounds for a mistrial. In South Africa, however, there is no jury. The Pistorius trial is to a periwigged South African judge, Thokozile Masipa, assisted by two advisers. In courts of law in England, barristers and judges wore wigs to distinguish themselves from the lower classes and defendants in cases. The trappings of justice are important, and one might wonder whether in modern times wigs truly give the impression of “equal justice under law.”
One generally accepted rule of cross-examination is not to argue with a witness. A “why” question, always dangerous for various reasons, is particularly objectionable when argumentative. Nel ignored this principle, lecturing Pistorius, “I find it strange that your panic is not at its greatest when you see her. The first time you found Reeva, “Why did you not scream then?” The judge allowed Nel this highly improper approach.
Other Nel gems: “Your version is so improbable that it cannot be reasonably possible.” “Why were her shoes on the left side of the bed when she slept on the right?” “Why are you getting emotional now? Is it about what happened or about the questions and your frustration?” Or this rhetorical line: “Whom should we blame for the fact that you shot her? Should we blame the government? “Whom should we blame for the Black Talon ammunition that ripped through her?”(If Nel is to answer his own questions, the presence of the witness would seem superfluous).
When Nel asked Pistorius whether he was thinking of the implications of his answers, Pistorius said it would be reckless not to, as “my life is on the line.” This prompted Nel to bellow at the witness, “Reeva doesn’t have a life anymore.” Whom was Nel reminding of this? The witness, the judge or the media? Was it necessary?
It’s not just Nel’s combative style that is so problematic. It is that a serious criminal trial, involving the tragic death of a beautiful young woman, is reduced to a platform for an overbearing “pit bull” prosecutor to show how he can turn a sworn witness into his personal piñata.
Eloquence is never misplaced in a courtroom. But prosecutorial brow-beating surely is. Prosecutors may strike hard blows, but they must be fair ones, and their ultimate purpose is not to convict the guilty but to see that justice is done.
James D. Zirin, a trial lawyer, is the author of the book The Mother Court-Tales of Cases That Mattered in America’s Greatest Trial Court.