Wednesday, November 30, 2005

The Importance of Witness Preparation and Judicial Awareness for the Khmer Rouge Tribunal

Megan Whittaker

The Victims of Torture Project (VOT) provides a crucial service to many people who have been traumatized as a result of the Khmer Rouge period. In addition to identifying and treating those survivors with Post Traumatic Stress Disorder and its often devastating symptoms, the project “seeks to learn survivors’ views on memory and justice, and to promote community reconciliation in Cambodia.” One of the strengths of the project is its sensitivity to survivors’ capacity for re-traumatization during interviews. Throughout the interview process, the VOT staff makes great efforts to reduce the chances for re-traumatization, such as visiting the interviewees in their own homes and seeking to establish a rapport with the interviewees that breeds a sense of trust and genuine concern. The VOT staff does not question or scrutinize the interviewees’ stories, but instead receives them as a valid representation of the survivors’ experiences.

For those survivors who will testify as witnesses in the upcoming Khmer Rouge tribunal, however, the environment surrounding their participation will not be nearly as friendly. First, witnesses will most likely testify in an official courtroom setting, often with the defendant present, which can be an especially intimidating environment. Although the government has stated that witnesses will have special protection, current international due process standards discourage complete anonymity, creating a possible safety concern on the part of the witness that may be either actual or perceived.

Furthermore, witnesses will be cross-examined by lawyers whose job is to discredit testimony by any means possible. Lawyers will focus on every gap and apparent inconsistency in the witness’s story, and judges will analyze each gesture and behavior. Instead of inviting empathy, the witness’s trauma will be used against them to discredit the reliability of their testimony, and can leave them feeling frustrated and victimized yet again. DC-Cam’s Legal Training Manual cites an article by Samantha Power describing how witnesses in the ICTR were so badly treated, especially regarding the subject of sexual violence, that many referred to themselves as “tribunal survivors.”

As a result, witnesses in the upcoming tribunal need to be extremely well prepared before taking the stand. A victim’s sense of control over their own experience is important in avoiding re-traumatization. The more prepared a witness is with regard to 1) the upcoming legal process and 2) the recollection and narrative of his or her victimization experience, the more effective the testimony will be and the less re-traumatization will occur.

First of all, the attorney should do everything he/she can to familiarize the witness with the proceedings before actual testimony is given. This includes discussing the chronology of what will happen, the purpose of testimony, and the role of the judge and opposing counsel. To become more comfortable with the physical surroundings, the witness should, if possible, visit the courtroom, sit in the witness chair and be shown where others will sit and who will be present.

Witnesses should be given a thorough explanation of the risks and processes that are involved with testifying, especially the potential for offensive or hostile questioning during cross-examination. For example, opposing lawyers are allowed to “lead” witnesses – ask questions that suggest an answer – in hopes that the witness will comply rather than be confrontational. The entire atmosphere is intimidating to witnesses, and so they tend to agree with opposing counsel’s statements (masked as a question) rather than cause conflict. This can be devastating to the accuracy of their story since it comes out slanted in the language of the opposing attorney. The sense that their story and experience “isn’t coming out right” is extremely demoralizing and traumatic to witnesses, and contributes to a continued feeling of victimization.

Moreover, attorneys tend to interrupt and cut off witnesses in mid-sentence when they don’t like the direction in which the testimony is headed. Witnesses need to be told that once a question is asked, they have the right to answer it completely without interruption and should not let their natural politeness or attorney attempts at intimidation keep them from telling their entire story. They should be prepared to persist in finishing their answers despite opposing counsel’s attempt to silence them. One thing to note is that those witnesses who had been tortured under interrogation by the Khmer Rouge may also need significant psychological intervention in order to reduce the chances of re-traumatization set off by an aggressive opposing counsel. Preparation by legal and psychological counsel to help the witness withstand this kind of questioning is essential for both the accuracy of the testimony and the well-being of the witness.

Secondly, counsel for the witness should ensure that the witnesses’ accounts, given over 25 years since the end of the genocide, are coherent enough to hold up under intense scrutiny. For example, a victim’s ability to remember events may not manifest itself in the strictly linear form favored by traditional legal proceedings. Within the larger context, specific dates are not nearly as important to the witness as the overall experience. Again, a significant amount of therapy/ preparation may be needed in some cases to turn a larger experience into a narrative suitable for judicial proceedings, i.e., testimony that is consistent, non-speculative, and emotionally powerful.

“The narratives of persons traumatized as adults are fragmented and incomplete. The narratives often show lapses in monitoring of reasoning, such as lack of logic or lack of reality testing when discussing the trauma. Lapses in the monitoring of discourse are characteristic as well, such as prolonged silences, a focus on details or unfinished sentences….Turning trauma into a coherent narrative means challenging the narrative defenses, such as psychic numbing, dissociation of feelings from the story, selective forgetting or fragmentation. Initially, this might be in direct conflict with the tendency to avoid the trauma memory. The therapist then needs to ‘stand for the part of the victim’s self that could not bear to look at what is done to her’. Eventually, the traumatized person might be able to integrate the dissociated parts into a coherent narrative of the experiences.” (Van Dijk et al.).

As a result, in addition to psychological preparation, counsel for the witness should separate out vague or inconsistent recollection. It is better for a witness to straightforwardly say “I don’t remember” than to speculate; it strengthens the veracity of what is remembered and minimizes misstatements based on faulty recollection that lawyers jump on to impeach the witness’s total credibility. Often it is impeachment on otherwise insignificant material that can confuse and frustrate the witness and leave him feeling as if he were the one on trial.

While “putting words in the witness’s mouth” or suggesting factual scenarios should be strictly prohibited, the stress and fear naturally engendered by the situation and surroundings lead many witnesses to give short, one-sentence answers that do not adequately portray the witness’s experience, as well as the severity of physical, mental and emotional suffering. In short, much is left unsaid in response to any single question. As such, the attorney “friendly” to the witness should know, through previous discussions with the witness, the particularly important information that the witness possesses and should ask follow-up questions designed to open up the witness without the attorney testifying for him/her. The attorney should have a list of points of information to be obtained from the witness and continue to ask questions until the witness has provided all of the information. The process of obtaining a full story can be difficult, as described above, but it is the attorney’s job to know when the witness’s story is fully aired. It should be the attorney’s goal that, at the end of testimony, the witness feels that he/she has finally been heard and can begin to gain some degree of legitimacy and closure as a result. Probing the witness as he/she recounts the narrative in preparation for testimony can solidify the essential facts in the mind of the witness, make ultimate tribunal testimony flow more fluently and naturally, and make the experience less traumatic for the witness. Again, this should be done in the presence of a trauma specialist, if not by the specialist him/herself, in order to minimize the chances for re-traumatization.

In turn, judges and lawyers for the tribunal should understand that a diagnosis of PTSD does not render a victim’s testimony worthless, but they should also be sensitive to the effects of traumatization on witness testimony. In trying to assess the credibility of a witness, the judge may look for confidence in answers and appearance, both of which may be severely hindered by the trauma’s effect on the individual (Durst). On the other hand, prosecutors in U.S. child welfare cases have expressed concern about “over-preparing” children lest their lack of affect on the witness stand cause jurors to question the veracity of their statements (Whitcomb). Providing judges and lawyers with a greater understanding of, and thus sensitivity to, the effects of the traumatization process on witnesses is therefore crucial to the credibility of the witness.

A training session of lawyers and judges involved in the Tribunal, similar to DC-Cam’s legal training sessions, might be a way to foster this understanding. DC-Cam’s legal coordinator Héleyn Uñac said that she had attended a training session in Kosovo that was aimed at instructing judges and lawyers on how to interview victims of trafficking. The session was only one morning, which was apparently too short for the participants to take to heart. She suggested that any such training session would have to be several sessions, at least, in order for participants to get a long-term appreciation of the sensitivity of traumatized witnesses. The training need not be complicated, merely an overview of the effects of trauma that was repeated until the participants really understood it.

For Cambodia, I propose:

§ An extensive witness preparation program, where psychologists work in conjunction with lawyers to effectively prepare witnesses for trial and cross-examination

§ A training session for judges, lawyers, and maybe members of the press, which aims to increase their awareness regarding the effects of traumatization on witnesses and the possibilities of re-traumatization within the legal setting.

Although witness preparation is perceived as an obligatory component of any trial, I believe that the sensitivity of the subject makes this too important an issue to rest on mere assumptions of sufficiency, especially given the questions surrounding the standards of Cambodia’s legal system. Witnesses have already experienced too much to be further sacrificed in a tribunal.

I believe that an institution such as DC-Cam is in a unique position to either instigate or lobby for formal and extensive programs that will ensure a high level of protection for witnesses’ physical and psychological well-being. Reality may limit the potential for such programs, but I believe that even a small program can have significant effects on the lives of those witnesses in whose name the Tribunal was partially created.

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Megan Whittaker holds a degree in psychology from Yale University. She wrote this article during her internship in 2005 at the Documentation Center of Cambodia.

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