CRIMINAL attorney William Booth of Cape Town analyses some of the major developments in the second week of the Oscar Pistorius murder trial:
Q: Media reports suggest that Oscar Pistorius’s legal counsel, Advocate Barry Roux, has punched holes in the reliability of the police’s forensic gathering and evidence around the toilet door. Would you agree?
A: Every crime scene must remain secured until the forensic team arrives to take samples or take possession of exhibits. These must remain secure throughout and the chain of evidence must not be contaminated, to allow the forensics experts responsible for the actual analysis to do their testing. Should the exhibits or samples be contaminated in any way, this may affect the reliability of the eventual analysis. A court could then exclude this evidence because of contamination or interference with the exhibits or samples.
In Pistorius’s case the judge may find that even if there has been contamination, that the crime scene was not fully secured and that the exhibits or samples may have been interfered with, that does not necessarily mean that all the evidence is to be excluded.
The court could still convict [Pistorius] even if it does not allow certain forensic evidence because of problems with the crime scene and the eventual analysis thereof. The court has to look at all the evidence and exercise its discretion whether or not to allow it.
Q: There is a perception that Roux has been strong-arming witnesses by quizzing them on unconfirmed information. Is this normal practise by criminal lawyers and what does this suggest about the defence’s approach?
A: A defence lawyer cannot put any aspect to a state witness unless this is a clear instruction from his client or that he has evidence to that effect. You cannot put unsubstantiated allegations to witnesses. Every lawyer, in defending a client in a criminal trial, has to do so in an ethical manner and not put evidence to any witness which is not correct, or any facts to the witness which are incorrect if he does not have evidence in that regard.