Episode three of Channel 4’s fascinating legal documentary-drama saw tensions rise as both prosecution and defence were beset by unhelpful testimony. This instalment covered the evidence of two crucial prosecution witnesses as well as the defendant’s decision on whether or not to give evidence.

Jury United – The Independent Witness

With the possible exception of damning forensic evidence, a truly independent trustworthy witness is the closest thing to a holy grail in criminal law. The persuasive power of an honest person with no axe to grind is an asset no court advocate wants to be without.

Taking the stand for the prosecution was Mr Mullen, who claimed to have witnessed Mr Skinner, the lover of the deceased, near the scene of the murder. Since the crucial plank of the defence case is to suggest Skinner – not the defendant – may be the killer, Mullen’s evidence could be very damaging to the Crown’s case. Although clearly nervous, his evidence was clear – Skinner had been near the scene of the crime at exactly 10:03 and he was prone to bouts of temper. Unsurprisingly, the jury regarded this as “vital” and many of them questioned their previous assumptions.

Mr Hill QC for the Crown described Mullen’s evidence as “tendered” and said this meant he couldn’t challenge it. In plain English this means the witness was brought to Court by the prosecution in order to allow the defence to cross examine him. In reality, the written statement made by Mullen (which the prosecution and defence would both have had access to) might have been read out in Court. This would have avoided inconvenience for the witness and, probably, Court time.

Equally, if the case had been real, it is quite possible that Mr Mullen’s witness statement would have been designated as “unused”, meaning he would have been called by the defence and could be cross-examined by the Crown.

If he had made a statement to the police, the defence would have found out about Mullen. The Crown are always under a duty to reveal to the defence anything which undermines their case or may assist the defendant. This duty is a “continuing” one – even if damaging evidence is discovered at a very late stage, it must still be disclosed to the defence. It would then have been a decision for Mr Davis’ barrister as to whether or not to use Mr Mullen’s evidence.

The Jury Divided – Do you Trust Mr Skinner?

The portrayal of Mr Skinner’s evidence was an accurate portrait of the power of advocacy. Whenever a witness’s evidence is not agreed by the parties, the individual is questioned by both sides. First, the party who relies on their evidence (and so wants the jury to believe what they say) asks open questions of the witness. Then, the other side asks questions designed to damage the witness’s credibility and undermine what they say.

Other than the defendant (who could avoid giving evidence) Mr Skinner was always going to be the most important witness to come to Court. The prosecution assert he is a grieving man, an innocent victim of the defendant’s rage. The defence paint him as Carla’s murderer. On the facts of the case, there is no one else whom the defence could realistically blame for the killing.

Mr Skinner’s evidence demonstrated the powerful impact of cross-examination on a jury’s thinking. After he had answered questions from the Crown the jury were very much convinced by his account, warming to his open and apparently honest persona. He described his movements on the day, the route he had taken for his run and his love for the victim. Mr Skinner also denied he would ever do anything to hurt Carla or her children. Even Mr Ryder QC for the defence described it as “an impressive performance”.

However, a rigorous cross-examination went some way to undoing this impression. Evidence was presented of Mr Skinner’s conviction for ABH and associated expulsion from the police force. Whilst these revelations did not turn all the jury against him, it damaged his credibility with others. The juror who had served as a soldier in Iraq succinctly compared a man who committed “mild spontaneous violence” (the defendant) to an ex-police officer, trained to use violence and with a propensity to do so. However, one of his fellows was keen to differentiate using excessive force against a suspect from murder.

Yet, in the cold light of day, Mr Ryder’s cross examination failed to achieve his stated aim of showing Mr Skinner as a man with a “short fuse”. The witness did not lose his temper and the prosecution case was hardly holed below the waterline.

In real cases, one tactic barristers can use to protect their own witnesses from the damaging revelations in cross-examination is to put the information before the jury themselves. In this case, the evidence of Mr Skinner’s conviction and dismissal from the police force could not have been brought up by the defence without a successful application to the judge (which would have been decided on similar principles to those explored in Part 2 of this blog series). For this reason, the prosecution would have known the information was in the hands of the defence and Mr Hill QC could have dealt with it in a controlled manner. It would still have damaged Mr Skinner’s credibility, but not to the same extent and the defence would have been denied the power of this shocking revelation. In addition, Mr Skinner could have been given a platform to excuse or explain his past behaviour.

A fascinating (and realistic) element of this episode was the private conversations in which both defence and prosecution teams dissected the witness’ performance. The prosecution were invigorated by their witness’ response under questioning. By contrast, the defendant’s analysis was simply “we haven’t done enough”. More than in any other area of law, criminal trials can turn on perception and the decisions made in the wake of unexpected testimony.

“It’s your case” – The Decision to Give Evidence

This episode also saw Mr Davis make the crucial decision (foreshadowed in the previous instalment of this blog series) of whether to give evidence to the jury. As Mr Ryder QC commented, this is “usually the most important tactical question in the defence case” in any trial.

One completely authentic aspect of this episode was the disagreements not merely between the barristers and their clients, but also amongst the defence barristers themselves. Ms Organ (the junior defence barrister) seemed very much against her client taking the stand because of his temper – she comments “I haven’t seen him angry, but he’s talked about it”. By contrast, Mr Ryder QC seemed convinced the defendant must tell his story to avoid the impression he has “something to hide”.

Whether intentionally or not, the decision to have Mr Davis enter the room and unintentionally interrupt his two barristers in the midst of their deliberations on whether he should take the stand was a truly interesting moment. Ms Organ had just outlined her concerns about Mr Davis’ temper when the man himself walked into the room. We will never know what Mr Ryder QC’s response will have been.

Perhaps the most interesting discussion on this issue was actually held in the jury room. Several members of the jury speculated about whether or not Mr Davis would give evidence and one commented “we have to hear from him”. Whilst most lawyers trust juries to think carefully about the cases they judge, it may not be the common view that they anticipate the tactics of each side in quite this way.

In the end, the programme portrayed the decision to give evidence as entirely for the client. Mr Davis stated he felt he had to take the stand and his barristers acquiesced immediately. Whilst it would be wholly improper for a barrister to usurp the client’s decision in this area, the programme makers are putting a simplistic gloss on how this kind of decision is taken in reality. Lawyers (particularly those as senior as Mr Ryder QC) are quite capable of giving their clients very strong words of advice and ensuring a client only makes a final decision after lengthy consideration of the relevant issues. The final decision is always the defendant’s, but barristers will not sit on the fence or roll over in the face of a defendant who acts in a way obviously harmful to himself. Here, however, the scales were finely balanced.

On His Own – The Defendant in the Box

As Lucy Organ comments, the most nerve-wracking moment for a barrister is when their client steps into the witness box to give evidence. Even if a defendant gives evidence over several days, strict rules prevent the defendant’s lawyers talking to him until he steps down from the stand. The intention of this procedure is to ensure a barrister cannot “coach” his client into giving better answers.

The rule against coaching applies equally before the client has started giving evidence. For this reason, Mr Ryder QC couched his advice in very general terms. He spoke of an “emotional assault” and not answering a question “from the outside in”. This kind of general advice is entirely legitimate. What lawyers are utterly prohibited from doing is to rehearse the kinds of questions which a client may be asked, either by them or the opposition’s advocate.

As in real life, the cross-examination of the defendant was the most gripping part of his evidence. Mr Davis did not seem to be able to adequately account for why he had cancelled a call to the emergency services, or for what he was doing between 10:50 and 10:58. One interesting aspect raised by Mr Hill QC in preparation (and perhaps to be explored in episode four) is a potentially crucial inconsistency in the evidence. A brief comment by Mr Hill QC suggests an eye-witness saw the defendant standing outside the door whilst the Mr Davis contends he stayed with his wife’s body at all times after discovering her. An inconsistency as important as this might well be crucial in deciding the outcome of the trial but we have not yet heard the jury’s reaction to the cross-examination.

Conclusion

Episode three of the series saw the both sides under increasing pressure and having to respond to unhelpful witness testimony. Fears about Mr Davis’ losing his temper in the witness box have not yet been borne out, but the prosecution have landed what appear to be some significant body blows. There is still all to play for in tomorrow’s penultimate episode.