Resilience-building in adversarial trials: Witnesses, special measures and the principle of orality
By: Fairclough, Samantha
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Material type: 
BookPublisher: Social &Legal Studies Description: 33(4), Aug, 2024: p.642-667.Subject(s): Special measures, Adversarialism, Principle of orality, Vulnerable witness, Resilience. Law, Criminal Justice, Vulnerability Theory, Witness Testimony, Principle of Orality, Adversarial System, Special Measures, Resilience, Evidence Reliability, Stress in Testifying, Human Rights, State Responsibility
In:
Social &Legal StudiesSummary: This paper applies Fineman’s vulnerability theory to critique the traditional adversarial approach to witness examination in criminal trials, which is premised on the principle of orality. It argues that adversarial settings often heighten stress for those testifying, thereby reducing the quality and reliability of their evidence. Consequently, the resilience of oral testimony as a general approach is undermined. The introduction of special measures—designed to adjust how testimony is given and to mitigate stressors—enhances resilience for individuals testifying, strengthens the robustness of evidence, and safeguards the integrity of criminal verdicts. The article concludes that the State should expand the provision of special measures to maximize resilience-building, thereby reinforcing both the principle of orality and the broader principles of justice. Using Fineman's vulnerability theory, this paper argues that the traditional adversarial approach to examining witnesses in criminal trials – premised on the principle of orality – reduces the resilience of those giving evidence. This is because the adversarial setting often leaves those testifying in a heightened state of stress, reducing the quality and reliability of their evidence as a result. In turn, this traditional approach to securing oral witness testimony in criminal trials loses resilience, in that it becomes more difficult to justify as the general approach. The use of special measures – to adjust the way testimony is given and ameliorate some of the associated stressors – provides resilience to the individual testifying, the robustness of their evidence, and the safety of consequent criminal verdicts. The positive effects special measures yield therefore lend additional resilience to our commitment to the principle of orality and the principles upon which it rests. This article concludes that the State should maximise such resilience-building through more generous special measures provision.- Reproduced
https://journals.sagepub.com/doi/full/10.1177/09646639231201913
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Articles
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Indian Institute of Public Administration | 33(4), Aug, 2024: p.642-667 | Available | AR133207 |
This paper applies Fineman’s vulnerability theory to critique the traditional adversarial approach to witness examination in criminal trials, which is premised on the principle of orality. It argues that adversarial settings often heighten stress for those testifying, thereby reducing the quality and reliability of their evidence. Consequently, the resilience of oral testimony as a general approach is undermined. The introduction of special measures—designed to adjust how testimony is given and to mitigate stressors—enhances resilience for individuals testifying, strengthens the robustness of evidence, and safeguards the integrity of criminal verdicts. The article concludes that the State should expand the provision of special measures to maximize resilience-building, thereby reinforcing both the principle of orality and the broader principles of justice. Using Fineman's vulnerability theory, this paper argues that the traditional adversarial approach to examining witnesses in criminal trials – premised on the principle of orality – reduces the resilience of those giving evidence. This is because the adversarial setting often leaves those testifying in a heightened state of stress, reducing the quality and reliability of their evidence as a result. In turn, this traditional approach to securing oral witness testimony in criminal trials loses resilience, in that it becomes more difficult to justify as the general approach. The use of special measures – to adjust the way testimony is given and ameliorate some of the associated stressors – provides resilience to the individual testifying, the robustness of their evidence, and the safety of consequent criminal verdicts. The positive effects special measures yield therefore lend additional resilience to our commitment to the principle of orality and the principles upon which it rests. This article concludes that the State should maximise such resilience-building through more generous special measures provision.- Reproduced
https://journals.sagepub.com/doi/full/10.1177/09646639231201913
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