Trial Discussion Thread #9 - 14.03.18, Day 12

[Trooper]

Perfectly stated.
Can't fathom a much better method of impeaching testimony, then contradicting photographs.


Sent from my KFTHWI

There is, of course a much better method of 'impeaching a witness'.. its when the judge rules that the witness is impeached, and naturally , that would follow after the witness who provided the 'contradicting' photos was x-examined by counsel defending and the prosecutor...

that is generally the accepted route even in the USA I presume.. at least, I would hope it is. It is standard practice most everywhere else.

Right now, its merely Roux suggestion and theory.. the contradictory photographer hasn't entered the witness box. that hardly qualifies as the 'much better method'.... it doesn't even qualify as ' a method' of impeachment.. it does qualify as a method of supposition and theory though.... whether its effective or not will be seen by the judges ruling at a later stage.

 

[HauntsForHope]

What are the charges? Do they have the lesser included charges like manslaughter? Murder 2?
If he killed her in a fit of anger, what category is that... not premeditated, just heat of the moment...

 

[Cherwell]

I wish they didn't call it "premeditated". People naturally assume it means pre-planned. A better term would be "deliberate", or "intentional".

 

[minor4th]

I wish they didn't call it "premeditated". People naturally assume it means pre-planned. A better term would be "deliberate", or "intentional".

But a "heat of passion" killing can be deliberate and intentional as well, although that is usually a lesser charge than 1st degree murder of premeditated murder.

 

[nastasya]

I wish they didn't call it "premeditated". People naturally assume it means pre-planned. A better term would be "deliberate", or "intentional".

OP's affidavit indicates his actions were pre-planned.

His claims:

He heard an intruder in the bathroom.

• Get got his gun.
• We left his bedroom.
• He went through the hallway.
• He entered the bathroom.
• He heard a person in the toilet behind the door.
• He shot four time through the door.

Whatever human he claims he thought was in the bathroom, he was never in danger or threatened. The moment he picked up the gun and started walking to the bathroom he was prepared to use the gun. According to OP's own story, when he heard somebody in the toilet stall he was not enraged. He was not threatened. He fired the gun four times, hitting RS 3 times.

There is no minimum time requirement for pre-planning a murder. He had time to think about what he was doing. He didn't simply react.

According to his own story he shot a defenseless woman that he knew moments earlier was sleeping beside him. Her only act was she went to pee.

You simply can't get a gun, walk from one room to the next, and kill somebody who got up in the middle of the night to go pee. He not only intended to kill when he shot the gun, OP pre-planned it when his first action was to get the gun and move towards the defenseless, non-threatening victim.

 

[Trooper]

Understanding the Charges

The key charge against Pistorius is premeditated murder. Premeditated murder requires an intent to murder plus planning the murder.

As support for the charge, the prosecution will argue that the act was planned (or premeditated) since he took the time to put on his prosthetic legs before walking to the bathroom and firing four deadly shots. However, that by itself won't likely be enough to establish the requisite planning element. Premeditation is reserved for more robust planning and generally doesn't capture an intent that materialized right before a crime was committed.

(For those that like precedents, in the case of State v. Raath, a South African Court ruled that a father forcing his son to remove a firearm from the safe to kill the son's mother was not sufficient to constitute premeditated murder.)

 

[Trooper]

However, that doesn't mean Pistorius walks. Not even close.

Even if the prosecution can't make out premeditated murder, it can still get Pistorius on the lesser charge of murder. In order establish murder, they only need to show that he intended to kill Steenkamp (no planning element needed).

Should the prosecution fail on murder, there is another lesser charge that could come into play: culpable homicide. This charge means that Pistorius negligently killed Steenkamp (or that the killing was an accident).

And this is what Pistorius is alleging - he killed Steenkamp by accident. He thought she was an intruder.

 

[Trooper]

to summarize...

three levels of murder..

(1)pre meditated murder .. ( this is the charge against Oscar. along with 2 counts of firearm crime and one count of ammo crime. 4 in total )

(2)Murder

(3) Culpable homicide.

(source.. South African Law Institute Information.. SALII )

 

[Trooper]

'heat of passion' would infer that Oscar knew who he was shooting at.. bad move. It is his contention that he DIDNT know it was Reeva. its hardly rational that he would work up a 'passion ' heated or not , against an unknown intruder.

 

[sorrell skye]

According to a criminal defense attorney @ this website:

http://www.avvo.com/legal-answers/what-happens-when-a-witness-is-impeached--1585162.html

No one declares a witness impeached. That is up to the fact finder (jury or Judge if a bench trial). The fact finder is generally allowed to accept the part of the testimony they believe and disregard the rest or disregard everything. This is called the falsus en uno charge. Just because a witness is "impeached" does not mean the witness cannot testify and does not result in automatic dismissal.

The fact finder in this trial is Judge Masipa. When the trial has concluded and she deliberates, she'll decide whether or not a witness was credible, whether or not to accept part, all, or none of any witness's testimony.

Roux is clearly trying to discredit (impeach) all of the witnesses' testimonies. He's tried to do so with each and every ear witness, the State's witness from the Silverwoods estate, each and every witness related to the firearms charges, and every forensic witness (with the possible exception of the ME, but there's no way to know for certain because Dr. Saayman's testimony wasn't broadcast).

Roux has employed these categories of impeachment:

1. Bias
2. Inconsistent statement
3. Contradiction

He's even gone so far as to accuse Van Staden (crime scene photographer) of lying.

I will concede that there have been some concerning incidents which occurred during the investigation (the allegedly 'missing' watch(es), the preservation/storage of the toilet door, the uncollected splintered pieces of the toilet door).

I have found the ear witnesses to be credible in their recollections. I found Pieter Baba to be credible. I found S. Taylor & D. Fresco to be credible, as well as Sean Rens (Roux couldn't get him out of the witness box fast enough, IMO). Aside from Vermeulen, I find the forensic specialists who've testified thus far to be credible.

This trial is in its 2nd week now. It's become clear (to me) that Roux's defense tactic to try to discredit all the witnesses is because he knows the law is not in favor of his client. At the very least, OP is guilty of culpable homicide according to SA law. I think Roux is hoping to get the case dismissed if he can sway the Judge to believe the investigation was flawed and the witnesses aren't credible.

I think Judge Masipa is smart enough to see through his tactics. I think she will weigh the witnesses' testimony and the evidence. I also think she possesses the wisdom and experience to know what to accept and what to disregard.

 

[Trooper]

It is the states position that they have the evidence to prove reasonably that Oscar did pre meditate this killing.. the killing itself is not in contention. the claim that Oscar makes ' I thought she was an intruder'.. is the only game on in Pretoria. How the State plans to prove that Oscar knew it was Reeva behind the door is the entire basis of the trial. so intriguing..

One thing I found today that I didn't know before was that there is no provision in law for Oscar to hold his silence at his own trial.. nothing like this at all. No choice about it, no constitutional support for this event, no procedure that allows him to not take the stand..not even the right to make an unsworn statement from the witness box.. ( this can still be done in my legal system, but rarely, and is on its way out in most states, and certainly in crimes against the person , eg rape, murder, assault, etc )

I'd appreciate some South African posters input on this.. I honestly don't think I have that wrong, but golly, I would appreciate some SA direction on this particular component.

 

[MeeBee]

There is, of course a much better method of 'impeaching a witness'.. its when the judge rules that the witness is impeached, and naturally , that would follow after the witness who provided the 'contradicting' photos was x-examined by counsel defending and the prosecutor...

that is generally the accepted route even in the USA I presume.. at least, I would hope it is. It is standard practice most everywhere else.

Right now, its merely Roux suggestion and theory.. the contradictory photographer hasn't entered the witness box. that hardly qualifies as the 'much better method'.... it doesn't even qualify as ' a method' of impeachment.. it does qualify as a method of supposition and theory though.... whether its effective or not will be seen by the judges ruling at a later stage.

That's not really how impeaching works. The judge doesn't say, "I now declare you IMPEACHED!" The attorney doesn't announce he's impeaching. He just does it thorough his questioning and then the judge/jury can decide how much weight to give the witness' testimony.

 

[MeeBee]

According to a criminal defense attorney @ this website:

http://www.avvo.com/legal-answers/what-happens-when-a-witness-is-impeached--1585162.html

No one declares a witness impeached. That is up to the fact finder (jury or Judge if a bench trial). The fact finder is generally allowed to accept the part of the testimony they believe and disregard the rest or disregard everything. This is called the falsus en uno charge. Just because a witness is "impeached" does not mean the witness cannot testify and does not result in automatic dismissal.

The fact finder in this trial is Judge Masipa. When the trial has concluded and she deliberates, she'll decide whether or not a witness was credible, whether or not to accept part, all, or none of any witness's testimony.

Roux is clearly trying to discredit (impeach) all of the witnesses' testimonies. He's tried to do so with each and every ear witness, the State's witness from the Silverwoods estate, each and every witness related to the firearms charges, and every forensic witness (with the possible exception of the ME, but there's no way to know for certain because Dr. Saayman's testimony wasn't broadcast).

Roux has employed these categories of impeachment:

1. Bias
2. Inconsistent statement
3. Contradiction

He's even gone so far as to accuse Van Staden (crime scene photographer) of lying.

I will concede that there have been some concerning incidents which occurred during the investigation (the allegedly 'missing' watch(es), the preservation/storage of the toilet door, the uncollected splintered pieces of the toilet door).

I have found the ear witnesses to be credible in their recollections. I found Pieter Baba to be credible. I found S. Taylor & D. Fresco to be credible, as well as Sean Rens (Roux couldn't get him out of the witness box fast enough, IMO). Aside from Vermeulen, I find the forensic specialists who've testified thus far to be credible.

This trial is in its 2nd week now. It's become clear (to me) that Roux's defense tactic to try to discredit all the witnesses is because he knows the law is not in favor of his client. At the very least, OP is guilty of culpable homicide according to SA law. I think Roux is hoping to get the case dismissed if he can sway the Judge to believe the investigation was flawed and the witnesses aren't credible.

I think Judge Masipa is smart enough to see through his tactics. I think she will weigh the witnesses' testimony and the evidence. I also think she possesses the wisdom and experience to know what to accept and what to disregard.

Ok, I should have read your post first, lol. Mine pales in comparison :blushing:

I hope you're proud, minor.

 

[MeeBee]

It is the states position that they have the evidence to prove reasonably that Oscar did pre meditate this killing.. the killing itself is not in contention. the claim that Oscar makes ' I thought she was an intruder'.. is the only game on in Pretoria. How the State plans to prove that Oscar knew it was Reeva behind the door is the entire basis of the trial. so intriguing..

One thing I found today that I didn't know before was that there is no provision in law for Oscar to hold his silence at his own trial.. nothing like this at all. No choice about it, no constitutional support for this event, no procedure that allows him to not take the stand..not even the right to make an unsworn statement from the witness box.. ( this can still be done in my legal system, but rarely, and is on its way out in most states, and certainly in crimes against the person , eg rape, murder, assault, etc )

I'd appreciate some South African posters input on this.. I honestly don't think I have that wrong, but golly, I would appreciate some SA direction on this particular component.

You're saying OP doesn't have the right not to testify? I highly doubt that's true.

 

[Trooper]

That's not really how impeaching works. The judge doesn't say, "I now declare you IMPEACHED!" The attorney doesn't announce he's impeaching. He just does it thorough his questioning and then the judge/jury can decide how much weight to give the witness' testimony.

in actual fact, Meebs, the judge says exactly that.. either those words precisely or finds the witness not credible. And naturally, the defence attorney and likewise the prosecutor doesn't say it, because they have no rights in law to make that judgement , much less announce it.

it is perhaps a cultural gap that brings the understanding of this word , impeachment and its consequent meanings and results into conflict.. its a word that gets flung about and appears to be a concrete thing.

Which is certainly is not.. one can hold the opinion that a witness is 'impeached'.. but it is meaningless.. an attorney can appear to a lay person that they have accomplished this act, but that is merely opinion and way beyond the actual meaning of the word..

it is entirely ok to not believe a witness.. state or defence. .its a whole other thing to claim 'impeachment of that witness' on the basis of an attorney suggesting a different theory than the one presented.. and so far, its not even a tested theory.. no defence witness has testified to the 'impeached ( so called ) witness' area of untruth.

 

[minor4th]

According to a criminal defense attorney @ this website:

http://www.avvo.com/legal-answers/what-happens-when-a-witness-is-impeached--1585162.html

No one declares a witness impeached. That is up to the fact finder (jury or Judge if a bench trial). The fact finder is generally allowed to accept the part of the testimony they believe and disregard the rest or disregard everything. This is called the falsus en uno charge. Just because a witness is "impeached" does not mean the witness cannot testify and does not result in automatic dismissal.

The fact finder in this trial is Judge Masipa. When the trial has concluded and she deliberates, she'll decide whether or not a witness was credible, whether or not to accept part, all, or none of any witness's testimony.

Roux is clearly trying to discredit (impeach) all of the witnesses' testimonies. He's tried to do so with each and every ear witness, the State's witness from the Silverwoods estate, each and every witness related to the firearms charges, and every forensic witness (with the possible exception of the ME, but there's no way to know for certain because Dr. Saayman's testimony wasn't broadcast).

Roux has employed these categories of impeachment:

1. Bias
2. Inconsistent statement
3. Contradiction

He's even gone so far as to accuse Van Staden (crime scene photographer) of lying.

I will concede that there have been some concerning incidents which occurred during the investigation (the allegedly 'missing' watch(es), the preservation/storage of the toilet door, the uncollected splintered pieces of the toilet door).

I have found the ear witnesses to be credible in their recollections. I found Pieter Baba to be credible. I found S. Taylor & D. Fresco to be credible, as well as Sean Rens (Roux couldn't get him out of the witness box fast enough, IMO). Aside from Vermeulen, I find the forensic specialists who've testified thus far to be credible.

This trial is in its 2nd week now. It's become clear (to me) that Roux's defense tactic to try to discredit all the witnesses is because he knows the law is not in favor of his client. At the very least, OP is guilty of culpable homicide according to SA law. I think Roux is hoping to get the case dismissed if he can sway the Judge to believe the investigation was flawed and the witnesses aren't credible.

I think Judge Masipa is smart enough to see through his tactics. I think she will weigh the witnesses' testimony and the evidence. I also think she possesses the wisdom and experience to know what to accept and what to disregard.

I agree that she will weigh the evidence and the credibility of witness testimony - of course, no one is declared "impeached," but when a witness is shown to be biased or dishonest or unreliable, then a judge will not give as much weight to that witness unless their testimony can be otherwise corroborated.

I think the judge is experienced and has seen it all - I think she will give the evidence and testimony the weight they're due. I think she'll be skeptical about some of the crime scene evidence, but I'm not sure that really matters so much because certain key aspects are not disputed. Will she take a broken door and a drop of blood on a wall as proof that there was a precipitating argument that led to an intentional killing? I doubt it.

I think she will look for obvious impossibilities in Oscar's statements and testimony but will give him the benefit of the doubt unless he proves to be a horrible witness caught lying with direct proof.

 

[Trooper]

You're saying OP doesn't have the right not to testify? I highly doubt that's true.

that was my reading of South African law.. it seemed clear enough to me, but I do want to check with South AFrican posters..

perhaps Meebs, you have a source that will define it more thoroughly???

but so far.. from the statutes and precedents going back to 1949 in SA law, it seems this is so... there is, of course, no '5th amendement ' thingy he can take.. there is no such thing in the SA constitution.


as far as I can tell, unless there has been new law promulgated as at 2013, and stretching way back from there, there is no provision that allows or excuses, or prevents or that Oscar can claim that stops him or allows him to not take the stand..

in other words.. he takes the stand, regardless of his dispositition or choice or preference..

I am happy to be thoroughly corrected on this.. with sources..

 

[Rumpole]

I wish they didn't call it "premeditated". People naturally assume it means pre-planned. A better term would be "deliberate", or "intentional".

As snippets are revealed by testimony, speculation about the events of the night of the shooting flares in the media, but back at Court little has changed overall.
We still have the initial question of "Is OP lying?" I am 50/50 on that still. I can see many people are surer than 50%, but "beyond reasonable doubt" requires a lot more than just "more than 50% convinced."
Anyway.... the initial burden on the State is to disprove OP's version and claim (in his mind) he was acting in self defense.

If State can disprove OP's claim... and the Judge regards that OP is lying.. then OP should be found guilty of Premeditated Murder (or SA equivalent) because in that case he most likely assaulted, and threatened and chased Reeva into the toilet, and shot 4 times knowing she was behind the door. Quite horrendous and deserving of a lengthy sentence (quite likely DP in some US States).

However... if the State fall short in THEIR BURDEN to disprove OP's claim, then the Judge has to accept that OP believed the whole "Intruder" scenario, genuinely. Any evaluation of crimes committed by OP will have to be evaluated from the point of view of there BEING an intruder, and how OP's actions stack up under SA law. I do think that had there in fact been an intruder, shot in the circumstances of this case, then the shooter, would never have been charged, and so a complete acquittal of OP is a possibility. If there is a guilty verdict on some lesser type of homicide, that in itself must validate/confirm that OP believed he was shooting at an intruder. A lesser charge should not be an option if the Judge believes that OP was shooting at the door KNOWING Reeva was behind it.

 

[sorrell skye]

Ok, I should have read your post first, lol. Mine pales in comparison :blushing:

I hope you're proud, minor.

BBM

I respectfully disagree with the bolded bit, MeeBee! Your post was accurate, as well as succinct - which is always a plus!

 

[Val1]

that was my reading of South African law.. it seemed clear enough to me, but I do want to check with South AFrican posters..

perhaps Meebs, you have a source that will define it more thoroughly???

but so far.. from the statutes and precedents going back to 1949 in SA law, it seems this is so... there is, of course, no '5th amendement ' thingy he can take.. there is no such thing in the SA constitution.


as far as I can tell, unless there has been new law promulgated as at 2013, and stretching way back from there, there is no provision that allows or excuses, or prevents or that Oscar can claim that stops him or allows him to not take the stand..

in other words.. he takes the stand, regardless of his dispositition or choice or preference..

I am happy to be thoroughly corrected on this.. with sources..

Hmm, I wonder if this little tidbit is the strategy the defense is planning on using as a last resort?

http://citizen.co.za/136861/annamarie-escorted-oscar-trial/

The unknown ‘Anna-Marie’ who has disrupted Pistorious proceedings before has also made an appearance at the court.

She before said that Pistorious needed to be send for evaluation as she was concerned about possible brain damage after his boating accident a few years ago. It is also believed that her presence may be part of the reason for the hold up in proceedings.