Should juries be given special directions (or warnings) by a judge where a professional actor[1] is appearing as a witness in legal proceedings?
Following several prominent court cases involving allegations of sexual assault by male actors against their female counterparts, this is a pertinent question to ask. Yet the answer is surprising.
Actors are, by their profession, skilled at portraying their body-language and voice in ways that are convincing of a story. Although witnesses usually give evidence after making an oath or affirmation to tell the truth, it is conceivable that witnesses – including actor-witnesses, are not always honest in the witness box. So how does a jury assess the honesty of a witness that is a professional actor?
Dangers also arise in potential prejudice against actor-witnesses. Jurors may conclude that the credibility or weight of a witness’s evidence is less because the witness is an actor.[2] In cases of alleged sexual assault, where the only witnesses to the offending are usually the complainant and the offender, this reasoning process may unduly discount the actor-witness’s evidence.
Despite high-profile cases in Australia, such as the proceedings against Geoffrey Rush[3] and Craig McLachlan,[4] there remains no guidance on the law surrounding actor-witness evidence. This may in part be due to the type of proceedings. In McLachlan’s case, this was heard at the Magistrates’ Court level, which does not use juries – so no direction was necessary. Meanwhile, Rush’s case was a civil trial for defamation - held in the Federal Court; again with no jury.
The situation of “actor-witnesses” is perhaps even more bizarre in the USA. In Florida, lawyers can actually “cast” witnesses when the real person isn’t available! One lawyer is reported as saying:
If a doctor isn't available, which happens all the time, you can do a casting call and find some guy who was on ‘One Life to Live,’ some gray-haired guy…You give him the deposition ahead of time so he's prepared, and he'll come in and you're going to get what you need.[5]
This raises serious questions about ethics and procedural fairness. Not only is the actor paid by the lawyer whose witness they are “playing”, but the actor is giving evidence of something they have no more knowledge of than the person reading the witness statement. In other words, they are giving hearsay evidence with flourish. Regardless of whether cross-examination is permitted, it is unlikely to be effective because the actor is merely reading from a script. Meanwhile, the real doctor could elaborate on the information in the statement; the evidence can be tested.
In contrast to the lawyer quoted, other American lawyers, including Orlando attorney - Donald Christopher, say if this “witness casting” occurred, he would raise it with the judge and jury, and request that the judge make a direction about it.[6]
Considering the recent high-profile cases involving actor-witnesses, perhaps these cases in Australia will only be heard by judges alone. Only time will tell. Either way, lawyers should be conscious of the potential issues – both against an accused, and against a witness – which are likely to arise in cases like these.
[1] ‘Actor’ is used here to denote both male and female actors. [2] For example, see Karen O’Connell’s criticism in: Judith Ireland, ‘The Daily Telegraph lost its Geoffrey Rush defamation appeal. What does this mean?’, AdNews (3 July 2020), <https://www.adnews.com.au/news/the-daily-telegraph-lost-its-geoffrey-rush-defamation-appeal-what-does-this-mean>. [3] Jamie McKinnell, ‘Geoffrey Rush has major court win against Daily Telegraph’, ABC News (1 July 2020), <https://www.abc.net.au/news/2020-07-02/daily-telegraph-loses-defamation-appeal-in-geoffrey-rush-case/12414536>. [4] Elise Kinsella, ‘Craig McLachlan sexual assault court case explained: What the magistrate said about her not guilty verdict’, ABC News (18 December 2020), <https://www.abc.net.au/news/2020-12-19/craig-mclachlan-sexual-assault-court-case-not-guilty/12990950>. [5] Art Levy, ‘Courtroom Drama: Is it ethical to hire actors to portray witnesses?’, Florida Trend (14 June 2011), <https://www.floridatrend.com/article/1856/courtroom-drama-is-it-ethical-to-hire-actors-to-portray-witnesses>. [6] Ibid.