Closed-Circuit Television Testimony: Liveness and Truth-telling

Law Text Culture Volume 14 Law's Theatrical Presence Article 18 2010 Closed-Circuit Television Testimony: Liveness and Truth-telling Kathryn Leader Follow this and additional works at: http://ro.uow.edu.au/ltc Recommended Citation Leader, Kathryn, Closed-Circuit Television Testimony: Liveness and Truth-telling, Law Text Culture, 14, 2010, 312-336. Available at:http://ro.uow.edu.au/ltc/vol14/iss1/18 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: Closed-Circuit Television Testimony: Liveness and Truth-telling Abstract A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury’s estimate of the witness. Butera v DPP (Vic) (1987) The legal arena may be one of the few remaining cultural contexts in which live performance is still considered essential (Auslander 1999: 9). This journal article is available in Law Text Culture: http://ro.uow.edu.au/ltc/vol14/iss1/18 Closed-Circuit Television Testimony: Liveness and Truth-telling Kathryn Leader A witness who gives evidence orally demonstrates, for good or ill, more about his or her credibility than a witness whose evidence is given in documentary form. Oral evidence is public; written evidence may not be. Oral evidence gives to the trial the atmosphere which, though intangible, is often critical to the jury’s estimate of the witness. Butera v DPP (Vic) (1987) The legal arena may be one of the few remaining cultural contexts in which live performance is still considered essential (Auslander 1999: 9). Introduction The live presence of all trial participants in a shared space is a longstanding feature of the adversarial criminal jury trial. Along with this practice is the equally longstanding belief that live presence facilitates truth-seeking. Going back as far as the trials by ordeal where a witness’s body was actually ‘read’ to reveal the truth, live presence has been believed, in various ways, to make the criminal trial safer and fairer. These ideas currently most commonly revolve around the concepts of demeanour and confrontation, where the participants’ presence and their interaction will help indicate to the jury the truth of the matter. These beliefs are, however, largely implicit, contradictory 312 0000Law Text Culture Vol 14 2010 CCTV: Liveness and Truth-telling and generally vague: how and why it may be valuable has not been clearly articulated until recently. The advent of mediatised technology into the courtroom in the 20th century led to a renewed attempt to account for the value of live performance. In this paper, I examine how arguments about the value of live performance (whether or not the term ‘performance’ is actually invoked) have been pivotal in debates about the use of closed-circuit television testimony (CCTV). I begin by defining CCTV testimony and examining its current use in courtrooms as a means of mediation for a ‘vulnerable witness’; that is, a witness who, in the view of the court, would be likely to find traditional modes of delivering testimony overly traumatic in legal opinion for a variety of reasons. I argue that the introduction of CCTV testimony has posed a challenge to deepseated beliefs about the link between live presence and truth-telling because it is able to leave undisturbed, or replicate, all aspects of the fair trial (including the need for it to be open) with the sole exception of the absence of a witness’s body from the courtroom. This has provoked legal debate as to what is at stake in the live presence of bodies together in the same place. Drawing on the work of performance theorist Philip Auslander (1987, 1999), I will analyse the extent to which CCTV testimony debate bears out Auslander’s claim regarding the ‘essential’ role of liveness in the legal arena. As I will show, the legal emphasis on empirical evidence to define the ‘essential’ role of live presence in various studies is problematic as it overlooks the importance of belief. I conclude that it is the beliefs concerning live presence that sustain the routine use of coercion in the trial and, ultimately, pose a potential stumbling block to the use of mediatised technology in the courtroom. Methodology and Terminology The focus of this paper is to examine debate about CCTV testimony to illuminate the central role of live performance in the trial and the potential consequences this may have for mediatisation in the 313 Leader courtroom. As I note in my introduction, the most obvious difference between the use of CCTV testimony and evidence testing in a traditional trial is the absence of a witness’s body from the courtroom. It is my contention that this ‘absence’ of the body has focused legal attention on the value of ‘presence’. However, when a witness is absent from the courtroom they are still ‘present’ somewhere; it is simply that this is not in the courtroom. Consequently, the importance of what happens in the courtroom is as fundamental as what is happening at the remote site.1 The metaphor of the trial as theatre or performance is pervasive. Closer examination reveals that the metaphor involves more than an acknowledgment of shared features. In fact, more commonly, the more ‘theatrical’ a trial is deemed to be, the more it is believed to have strayed from some implicit belief of what it is meant to be or do. This attitude is in keeping with Elizabeth Burns’ (1973) argument that a pejorative conception of ‘theatricality’ can only exist if there is an implicit dichotomy being made between natural and theatrical behaviour, for example, the trial is about truth-telling and high stakes, and the theatre is about artifice and entertainment. In other words, the theatre is about ‘performing’, and the trial is about ‘not-performing’ or behaving naturally. Burns argues that the ‘theatrical’ is not a series of specific definable signs, but rather the ‘double relationship between the theatre and social life’. For Burns (1973), theatrical practice is ‘both formed by and helps to re-form and so conserve or change the values and norms of the society which supports it’. Theatre can therefore be conservative or transgressive but, in a relatively dialogic relationship, it both affects and is affected by society‘s collective consciousness. Following Burns, I argue that outside the discursive space of the theatre, behaviour that is a transgression of or deviation from convention — that stands out — is regarded as ‘theatrical’ or performative. While, the trial may seem ‘theatrical’ for laypersons because of shared conventions such as costume and staging, for legal practitioners the ‘theatrical’ is behaviour that deviates from habituated courtroom practice, for exa (...truncated)