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5. Some commentators have articulated the merits of these ancient trials by
ordeal.^ Regardless of those merits, however, those ideas of law and justice have been
cast aside for the modem times. Such is the way of the continuing march of law
reform.
The Values of Witness Preparation
6. Although law reform as concems administration of justice has largely done
away with trials by ordeal in the real sense of the word, some might argue that witness
testimony has remained, in a manner of speaking, something of an 'ordeal' for the lay
witness in the adversarial system of justice. ^ Justice Thomas Cromwell of the
Supreme Court of Canada and his co-authors Bryan Finlay QC and Nikiforos latrou,
in their book on witness preparation, partly capture the point in the following way: 'A
tribunal is a foreign and hostile environment for the inexperienced witness. The
formality of the setting and the unaccustomed procedures will cause anxiety and
induce an inability to communicate effectively.'
7. To that I must add that public speaking is a dreaded experience for many. It is
the more so for witness testimonies, as what is involved is not merely public speaking
followed by expectation of polite ovation, but public speaking in circumstances in
which highly trained and experienced legal professionals are expected to dissect and
attack everything that is said, and quite often the person of the witness herself, in a
quest to demonstrate flaws that may or may not exist.
ICC-01/09-01/11-524 03-01-2013 24/44 NM T
8. The foregoing observations about stress and the relative palliative effects of
witness preparation are standard observations usually made in the context of litigation
in the average westem society, pertaining to witnesses native to that culture. The
value of these observations has, then, even greater force in relation to the average
witness that comes to testify before this Court. The environment and circumstances of
our courtrooms and those of the seat of the Court itself are likely to be wholly foreign
to such a witness. She may come from the most rural areas of the economically
developing world. The travel through the capital city of her country to take the flight
that brings her here is in itself an experience that may induce the stress of unfamiliar
life in a different world. But that may be compounded by the stress of intemational air
' See Peter Leeson, 'Justice, medieval style' in The Boston Globe 31 January 2010
^ See also Louise Ellison, 'The protection of vulnerable witnesses in court: an Anglo-Dutch
comparison' (1999) 3 International Journal of Evidence and Proof 29 at 29 and 32. See also Baroness
Vivien Stem, The Stern Review: Independent Review into How Rape Complaints are Handled by
Public Authorities in England and Wales [Govemment Equalities Office and Home Office, 2010] p 79.
^ Bryan Finlay, T A Cromwell and Nikiforos latrou. Witness Preparation—A Practical Guide [Aurora,
Ontario: Canada Law Book, 2010] p 7.
No. ICC-01/09-01/11 3/23 2 January 2013