It is with great enthusiasm that N-Map launches our newest film: Advancing Justice Through Expert Testimony in Haiti.
In November 2013, our partners—the Bureau des Avocats Internationaux (BAI) and the Institute for Justice and Democracy in Haiti (IJDH) —invited us to Haiti to produce a film that advocates for the greater use of expert witnesses in Haitian courts. The film is primarily intended for Haitian judges, prosecutors and lawyers yet the message remains universal: expert testimony is vital for all criminal trials—especially in the case of rape.
Judges are not doctors; nor are they forensic psychologists or ballistic experts. Yet they issue rulings on cases built upon evidence from these fields. Consequently, many courts call on experts to help judges understand the specificities of a case or to help lawyers best substantiate their case according to relevant scientific evidence. In Haiti, however, there is little use of expert witnesses in criminal trials. Without guidance, judges cannot provide informed decisions for the complainant or the accused. And this absence of expertise delivers only partial justice.
While it is important for Haitian courts to employ expert witnesses in all criminal trials, this need is ever more urgent for cases of sexual violence. Last summer, judges dismissed numerous sexual assault cases because female victims exhibited common symptoms of trauma: failing to remember some details of the crime or inconsistently recounting their testimony. Modern psychiatric literature recognizes this behavior as common among rape victims who experience trauma. Yet judges are not familiar with the behavioral patterns of post-rape trauma and leverage inconsistent testimony as evidence that a crime did not occur. In these cases, the Haitian justice system—in addition to the defendant—wronged the victim.
The need for medical expertise also highlights the importance of expert testimony in rape cases. In a case profiled in the film, a complainant under the age of 10 was seeking justice for her rape, but judges believed inaccurately that any child of that age would have not yet been sexually active and thus, would have bled from a broken hymen when raped. The gynecologist explained to the court that although most children do bleed in cases of rape, there are exceptions. She was able to tell the judges during trial that the fact that the child did not bleed is not evidence that she had not been raped. She successfully convinced the judges, who otherwise may have ruled differently, that rape can occur without blood loss in such cases.
In a more recent case, a woman who worked as a housekeeper was brutally raped in the home of her employer. When she brought the case to court, a prosecutor and later an appeals court chamber ruled that because she did not flee the situation, and since escape was possible, it proved the sexual activity consensual. It was not. Again, it is common for women to stay with their accusers due to trauma and fear. An expert helps judges understand this phenomenon, and by extension, helps rape victims find justice.
N-Map and our partners at BAI will distribute this video throughout the summer to judges and prosecutors as trials resume after a several month hiatus. Our goal is twofold: first, to convince judicial actors of the importance of expert testimony and second, to show that expert testimony is effectively employed by peers and easy to implement. Additionally, several women’s rights groups–such as our partners at KOFAVIV–requested to incorporate the video into their training. We plan to work with the Haitian Bar Association to include the video in the required curriculum for all new lawyers in Haiti as well.
The capacity of this video to advocate for expert testimony beyond Haitian courts leaves me with great hope. It also fully reaffirms my belief that expert testimony proves a prerequisite for true justice and thankfully I am not alone.
“There is a lot of injustice done at this level,” explains Carlos Hercule, President of the Haitian Bar Association. “And to solve this problem the [courts] must use scientific expertise and proof.” Many of the judges and prosecutors I interviewed agreed with Carlos. In fact, during our week of production in Haiti, I met few dissenters. Yet surprisingly, the two interviewees who expressed resistance to the incorporation of expert witness testimony into Haitian courts were the experts themselves: a gynecologist and a psychologist. Feeling confused; I asked why. Both replied with the same concern: the more time spent in court testifying on behalf of victims translates to less time in practice—offering medical or psychological services desperately needed by Haiti’s under-served population.
Those unexpected answers certainly sparked new thinking about the potential for video to alleviate the cost and the human-resource burden of expert testimony—not only in Haiti but in other under-resourced justice systems as well. Even here in the United States the expense of expert witnesses favors well-funded law firms. For public defenders—like Brooklyn Defender Service—the expense of experts proves prohibitively costly and expert testimony often favorably affects the outcome of cases. This begs the question: even with the ubiquitous use of expert testimony, what advantages come to those who can afford it?
So can video or new media ensure that marginalized complainants, and for that matter defendants, have equal access to expert witnesses? Well that’s a topic for another post…