WITNESS THREAD: Ear Witnesses - Part 1 - Burger, van der Merwe, Johnson

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beach

beach

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For the purposes of this discussion the topical witnesses' testimony we will be reviewing will be:

  1. Michelle Burger
  2. Estelle van der Merwe
  3. Charl Johnson


Please note: When comparing witnesses' testimony to OP's version - no matter if it is used to support or impeach - please be prepared to note the video # and time stamp if asked to "link it up". That is common courtesy. It's always how we've rolled around here and that is expected. So take notes if you anticipate you will have a point to make regarding something specific.

The video links will direct you to the post for each day in the Video Thread. Transcript links are provided for reference only, and are not verbatim and/or complete.
 
Michelle Burger

Direct Exam:

Day 1, Part 1; 44:33 -53:00

  • "Just after 3:00, I woke up from a woman's terrible screams"

  • "She screamed terribly and she yelled for help"

  • Burger dialed security, husband talked to security, repeated the story twice and then informed Burger that it was the wrong security number. Husband went back to balcony

  • "I heard the screams again"

  • "Just after her screams, I heard 4 shots - it was 4 gunshots that I heard... bang (pause) bang, bang, bang"

  • "After the shots we did not hear screams any more"

(Will continue adding to this, but it's time consuming, so I'm taking a break for now)
 
It would be great if we could actually get the time that Burger dialed security.
 
I have relistened to the first three. Just chilling. Especially knowing now what Reeva's injuries were and in which order she received them. The testimonies line up right alongside what has been testified to by the medical folks.
 
asanque said:
It would be great if we could actually get the time that Burger dialed security.
Click to expand...

I think that comes later, during Johnson's testimony or cross examination. I will make a note of it when I listen
 
MICHELLE BURGER​

Direct Exam:

Day 1, Part 1; 44:33 -53:00

  • "Just after 3:00, I woke up from a woman's terrible screams"

  • "She screamed terribly and she yelled for help"

  • Burger dialed security, husband talked to security, repeated the story twice and then informed Burger that it was the wrong security number. Husband went back to balcony

  • "I heard the screams again"

  • "Just after her screams, I heard 4 shots - it was 4 gunshots that I heard... bang (pause) bang, bang, bang"

  • "After the shots we did not hear screams any more"

Notes:

  • During direct exam, Burger makes no mention of hearing a man screaming or yelling "help, help, help"

  • No mention of man and woman voices intermingled

  • No mention of screaming during shots

Cross Exam:

Day 1, Part 2; 5:50 - End

  • "I did not hear the cricket bat bangs on the door, however, I did hear the gunshots"

  • "It's not possible" that there were gunshots that I didn't hear when I was asleep ... "There's no way"

  • "Clearly heard 4 gunshots after I made the telephone call"

  • @9:15 - "[My husband] also heard 4 gunshots" -- quickly changed her testimony that he may have heard "a couple" - "4, 5 or 6"

  • @ 26:00 "When the shots started, I again heard the woman scream".

  • "During the shots, I heard the woman screaming"

  • @30:50 "I confirm that just after the last shot, I heard her scream - her voice"

  • @32:50 - "I was woken up by a woman's petrified screams. I heard her screaming first. Then I heard her call for help. Then I heard a man call for help three times. I then made a call - I gave the phone to my husband and he spoke to security. Afterwards, I heard the woman's petrified screams again. Shortly after that (tape misfeeds)....I heard her screaming some time during the shots ...and shortly after the shots was the last time I heard that woman shout"

Day 1, Part 3 (cross examination continued); 6:15 - END

  • Reading from Burger's written statement

    • "I heard the woman scream" - none of the emotional descriptions
    • "The woman gave the last scream approximately 2 seconds after the last shot" - no mention of screams during shots

  • @24:00 Interestingly puts other witness statements to Burger and mentions he doesn’t know if they’re true - they could be lying or Captain Van Ardt could have manipulated their statements

  • "I can only state that I heard the shooting and not the cricket bat, I heard 4 shots"

  • "I'm certain what I heard was a woman, so I'm convinced it wasn't Mr Pistorius"

  • There's a long back and forth with Burger adamantly refusing to concede that cricket bat can sound like gunshots, persists that she is 100% certain the noise she heard was gunshots and not cricket bats - although she acknowledges that she doesn't know what a cricket bat hitting the door sounds like

  • Burger explains that she started in music early and hears rhythm automatically and that's how she knows it was 4 shots

Notes:

  • Written statement contains no emotional description of screams

  • Written statement does not mention screams during the shots

Listening to Burger again, it really jumps out how belligerent she is and unyielding when it comes to making obvious concessions - like refusal to even acknowledge that there may have been gunshot sounds she didn't hear because she was sleeping
 
Ms. Burger's original statement was given in Afrikaans. In court she tells the judge that she would like to testify in Afrikaans. (Day 1: Part 2 23:22) But the court interpreter makes so many mistakes that Ms. Burger later switches to English.

Roux attempts to exploit this. He argues semantics and grammar. For example. "Ek hoor die vrou gil en toe skote en die laaste gil sekondes na die laaste skoot." Translation: Ms. Burger hears screaming, during the screams she hears shots and the last scream sound was moments after the last shot.

But Roux says that "I heard a woman scream" means that Ms. Burger only heard one scream. Nel points out that you can not say: "I heard the woman screams." Translation: "Ek hoor die vrou gille."(Yes. Roux really tried this. I kid you not.) (Day 1. Part 3. 07:09)

Then Roux tries to take Ms. Burger's words from her affidavit out of context. He says that she never said she heard screams during the shots. He says let's look at just these two sentences. "I heard a woman scream. AND THEN shots." So he argues that she said in her affadavit that she never heard screaming during shots because she said "and then shots." Again Nel objects. Look at the the rest of the sentence. "I heard a woman scream, then shots and then the last scream moments after the last shot." (Day 1. Part 3. 13:46)

Now Roux at some time also took issue with the word "seconds." In Afrikaans if you say something happened seconds later it is understood that you mean something happened very quickly after something else. In Afrikaans when you literally mean seconds you will attach a number to the seconds. So a better translation of Ms. Burger (edit:not affadavit) testimony is "moments after the last shot." But Roux insists on using the translation "seconds after the last shot." He asks Ms. Burger how many seconds after the last shot. She says she didn't have a stopwatch but it fast, fast...moments.

Nel asks that the witness leave the court and addresses the issue. (Day 1. part 3. 17:00) Nel: We're testing this witness on a contradiction which is not in her statement. (I.e. Roux is playing word games. The judge agrees and asks the paragraph to be admitted on record in Afrikaans.)

The reason the judge (and the prosecution) allowed Roux to play this game for so long is that one purpose of cross examination is to test the reliability and credibility of the witness. So Roux is allowed a lot of leeway to test this. As longs as he doesn't argue with a witness (a whole other post this one) he can pretty much stretch the truth a loooong way to test reliability and credibility.

So unless a witness is specifically asked to comment on something (e.g. I put it to you. My client's version is this, what do you say? Can you comment) the defense, prosecution and the judge know that it is a test of the credibility and reliability of the witness.

Roux tried very hard to show that Ms. Burger's a unreliable witness. He tries to shame her. "You're so stubborn, you won't concede even the tiniest thing." He makes it sound as if its a bad thing to stick to your guns. But it isn't. So Ms. Burger passed this test with flying colors, unless, of course, you do not understand Afrikaans or S.A. courtroom procedure. Then you tend to believe that Roux scored.

Very important. If, during his cross, Roux puts it to her that she is lying or that his client's version is different or he asks her comment on something he will argue later, e.g. Oscar screams like a woman. Then her comment: "No, I heard a woman" will be noted very carefully.

This is the bits you listen for to get an idea of what the defense or prosecution will argue later. If a witness contradicts your case you must say so and allow the witness to comment on that. This is important so I'll say it again. Unless you specifically say that you dispute something the witness says the evidence given will then be taken as common cause unless it is proven that the witness is lying and/or the judge thinks that the witness is not credible or reliable.

So to sum up. I put it to you that the purpose of cross examination is to test the reliability and credibility of a witness. Also during cross a witness must be asked to comment on any contradiction between the defense's case and the witness' testimony. So listen carefully and do not assume that testing reliability is always the same as testing facts.
 
Day 1: Part 1, Part 2, Part 3: Michelle Burger

I'm still listening, but so far I have some notes on the cross: (Will edit this as I listen...OK. Done for now.)

Roux argues semantics and grammar in order to show that Ms. Burger is an unreliable witness. He tries to shame her into conceding that she could have heard things while she was asleep. She tells him that no, she was asleep so she could not have heard anything. Which is literally true. All this is a test of her reliability and credibility. Not so much a test of the facts. Because he rarely puts anything to her during the first two parts. But we have lots of putting-to-yous in Part 3.

So far in Witness vs Oscar Pistorius :

Ms Burger says she heard a woman scream. Terrible, blood curdling, fearful screaming. She says although its not in her affadavit she mentioned this to Capt. van Aardt during her affadavit. He can confirm this. (insert time here. Anybody? OK. I'll do this later.)

Day 1. Part 3. 24:30:
Oscar's version is: He fired four shots. At some point in time when he realized it might be Reeva, he was screaming for help. He screamed. And opened the sliding doors. And after that he bashed the door three times with the bat. We have experts. Roux: I put it to you that..on tests people will say the bashing of the door would resemble, when you hear it from a distance, gun shot wounds. It's hard (meaning loud): Dwa! You understand? It's not soft hitting, you hit the door to break. Do you understand that?

Day 1. Part 3. 34:07:
Ms Burger says she heard four shots after the screaming. Bang....bang, bang, bang. The screams faded with the last shot. She did not hear any other sounds after that: Not screaming and not anything else that sounded like shots. Maybe she was in the loo, maybe asleep, but she only heard the screams and the four gun shots.

Day 1. Part 3. 34:25:
Roux puts it to Burger that it was Oscar screaming that night. She replies that she definitely heard a woman. She doesn't know what Mr. Pistorius sounds like when he screams. So Roux says that he will prove that OP screams like a woman.

Day 1. Part 3. 35:00:
Roux: This is what I put to you. He fired shots. He was beyond himself screaming after that. Higher and lower. And that is why you heard a woman screaming and also a man screaming. (35:25) You heard both. But it was the same person.
Burger: I'm 100% certain that I heard two different people that evening. Male voice. Female voice.
Roux: You did not hear them at the same time.
Burger: True. Lady called for help and then shortly afterwards a man help, help, help.....I have no doubt that it was two different people. They did not sound remotely the same. (Again at 37:55. Two different people. Female. Male.)

Day 1. Part 3. 38:25:
Roux says: The hitting of the door with the bat was shortly after the shots. Not a long time. And you must have heard it.
Burger says: I'm sure gunshots will be louder than a cricket bat on a door. I'm sure I heard shots.

Day 1. Part 3. 50:00:
Roux: You should have been awake. You did not hear a cricket bat hitting a door so hard that it breaks the door?
Nel: I object. It was now put to this witness: "You did not hear it," as if it is true, as if it did happen and she could have heard it. He then also says its been asked and answered at least five times.
Roux: Huh? Is Nel saying the door wasn't hit with the bat?(I'm paraphrasing?)
Nel: I'll rephrase. As if it happened so loudly that she should have heard it.
Roux: We put to the witness. Could there have been gunshots before you woke up? She said no.
Judge: She explains it in terms of distance. She was far away.
Roux: We put it to her that she heard the bat, not the gunshots.
Judge: Yeees. You can put it to the witness. (52:12)

Day 1. Part 3. From 56:00:
Roux tries very hard to get this witness to say she heard both Oscar and Reeva scream at the same time. She keeps saying no. She heard them both call for help, but only the woman screamed. At 56:17 Roux: But you heard him screaming....Burger:Call for help. I heard him call for help. There was fear in the woman's voice. The man sound flat. After being pressed by Roux on why she thinks this could have been she says she'd wondered about this. Perhaps the man was mocking the woman? (Roux: Righteous Indignation! Nel: You asked her opinion. I mean, really. Paraphrasing here.)

Verrry interesting, this.
 
Liesbeth, thank you for your informative and insightful postings explaining the SA judicial system

:tyou:
 
liesbeth said:
Ms. Burger's original statement was given in Afrikaans. In court she tells the judge that she would like to testify in Afrikaans. (Day 1: Part 2 23:22) But the court interpreter makes so many mistakes that Ms. Burger later switches to English.

Roux attempts to exploit this. He argues semantics and grammar. For example. "Ek hoor die vrou gil en toe skote en die laaste gil sekondes na die laaste skoot." Translation: Ms. Burger hears screaming, during the screams she hears shots and the last scream sound was moments after the last shot.

But Roux says that "I heard a woman scream" means that Ms. Burger only heard one scream. Nel points out that you can not say: "I heard the woman screams." Translation: "Ek hoor die vrou gille."(Yes. Roux really tried this. I kid you not.) (Day 1. Part 3. 07:09)

Then Roux tries to take Ms. Burger's words from her affidavit out of context. He says that she never said she heard screams during the shots. He says let's look at just these two sentences. "I heard a woman scream. AND THEN shots." So he argues that she said in her affadavit that she never heard screaming during shots because she said "and then shots." Again Nel objects. Look at the the rest of the sentence. "I heard a woman scream, then shots and then the last scream moments after the last shot." (Day 1. Part 3. 13:46)

Now Roux at some time also took issue with the word "seconds." In Afrikaans if you say something happened seconds later it is understood that you mean something happened very quickly after something else. In Afrikaans when you literally mean seconds you will attach a number to the seconds. So a better translation of Ms. Burger (edit:not affadavit) testimony is "moments after the last shot." But Roux insists on using the translation "seconds after the last shot." He asks Ms. Burger how many seconds after the last shot. She says she didn't have a stopwatch but it fast, fast...moments.

Nel asks that the witness leave the court and addresses the issue. (Day 1. part 3. 17:00) Nel: We're testing this witness on a contradiction which is not in her statement. (I.e. Roux is playing word games. The judge agrees and asks the paragraph to be admitted on record in Afrikaans.)

The reason the judge (and the prosecution) allowed Roux to play this game for so long is that one purpose of cross examination is to test the reliability and credibility of the witness. So Roux is allowed a lot of leeway to test this. As longs as he doesn't argue with a witness (a whole other post this one) he can pretty much stretch the truth a loooong way to test reliability and credibility.

So unless a witness is specifically asked to comment on something (e.g. I put it to you. My client's version is this, what do you say? Can you comment) the defense, prosecution and the judge know that it is a test of the credibility and reliability of the witness.

Roux tried very hard to show that Ms. Burger's a unreliable witness. He tries to shame her. "You're so stubborn, you won't concede even the tiniest thing." He makes it sound as if its a bad thing to stick to your guns. But it isn't. So Ms. Burger passed this test with flying colors, unless, of course, you do not understand Afrikaans or S.A. courtroom procedure. Then you tend to believe that Roux scored.

Very important. If, during his cross, Roux puts it to her that she is lying or that his client's version is different or he asks her comment on something he will argue later, e.g. Oscar screams like a woman. Then her comment: "No, I heard a woman" will be noted very carefully.

This is the bits you listen for to get an idea of what the defense or prosecution will argue later. If a witness contradicts your case you must say so and allow the witness to comment on that. This is important so I'll say it again. Unless you specifically say that you dispute something the witness says the evidence given will then be taken as common cause unless it is proven that the witness is lying and/or the judge thinks that the witness is not credible or reliable.

So to sum up. I put it to you that the purpose of cross examination is to test the reliability and credibility of a witness. Also during cross a witness must be asked to comment on any contradiction between the defense's case and the witness' testimony. So listen carefully and do not assume that testing reliability is always the same as testing facts.
Click to expand...

bbm~

Comparing your notes to minors, it looks like Burger did give a specific number of seconds - 2 - in her written statement. Do you disagree she did that based on your listening?
 
Karmady said:
bbm~

Comparing your notes to minors, it looks like Burger did give a specific number of seconds - 2 - in her written statement. Do you disagree she did that based on your listening?
Click to expand...

Not at all. Go and listen to the videos. You'll hear her say that when she said "seconds" Captain van Aardt asked her about it and she then said approximately 2 seconds because she couldn't give an exact time. The voice was fading.
 
Karmady said:
bbm~

Comparing your notes to minors, it looks like Burger did give a specific number of seconds - 2 - in her written statement. Do you disagree she did that based on your listening?
Click to expand...

Not at all. Go and listen to the videos. You'll hear her say that when she said "seconds" Captain van Aardt asked her about it and she then said approximately 2 seconds because she couldn't give an exact time. The voice was fading.

Edit: Just read my post again. Didn't mean to be rude, Karmady. Apologies. I'll have a look in my notes. The time is there and I'll see if I can find it.
 
liesbeth said:
Not at all. Go and listen to the videos. You'll hear her say that when she said "seconds" Captain van Aardt asked her about it and she then said approximately 2 seconds because she couldn't give an exact time. The voice was fading.

Edit: Just read my post again. Didn't mean to be rude, Karmady. Apologies. I'll have a look in my notes. The time is there and I'll see if I can find it.
Click to expand...

No worries. I didn't get "rude". I should listen, but I've been super busy at work and can't find the time to listen to much since I'm not in a listening-friendly environment. lol

I have been able to read quite a lot though. So thanks to you and all who have listened and posted about it :seeya:
 
Karmady said:
No worries. I didn't get "rude". I should listen, but I've been super busy at work and can't find the time to listen to much since I'm not in a listening-friendly environment. lol

I have been able to read quite a lot though. So thanks to you and all who have listened and posted about it :seeya:
Click to expand...

Just noticed that in your post above (the one with the long quote) I do say that I was talking about her testimony, not her affidavit or written statement.

Anyway. While I was looking for the time, I found another instance where Roux played with meaning. Day 1, Part 2, 20:24. His attempt to use the Afrikaans word "deurmekaar" and its English translation "confusing" to make it look as if Ms. Burger had said in her statement that she was confused about the events that night.

She explains what she really meant, that the events of that night was not normal, but he refuses to accept the explanation. Even the judge weighs in on this.

And to dot the i's and cross the t's. There was a satirical rap song made about Roux's word play by one of the local radio stations. Something about 'I'm Barry Roux and I put it to you, everything you say I will misconstrue.' I have a link...here it is.

https://www.youtube.com/watch?v=6fcDOkUxcF0

To Barry Roux's credit he laughed when he heard it and said while it wasn't very flattering, it was very funny. One of the reasons I like Roux, btw.
 
liesbeth said:
Ms Burger says she heard a woman scream. Terrible, blood curdling, fearful screaming. She says although its not in her affadavit she mentioned this to Capt. van Aardt during her affadavit. He can confirm this. (insert time here. Anybody? OK. I'll do this later.)
Click to expand...

BBM. Found it. Oscar Pistorius Trial. Day 1. Part 3 11:45

Roux then refers to paragraph 3 of her statement where she said it was "angs gille" she heard. He translates anxiety, but this is not at all what this means. In this case "angs" means very extreme fear and panic.

A prediction: Roux has asked for the whole statement in Afrikaans to be admitted into evidence. So during argument Gerrie Nel's going to decimate these "free" translations.
 
liesbeth said:
Day 1: Part 1, Part 2, Part 3: Michelle Burger

I'm still listening, but so far I have some notes on the cross: (Will edit this as I listen...OK. Done for now.)

Roux argues semantics and grammar in order to show that Ms. Burger is an unreliable witness. He tries to shame her into conceding that she could have heard things while she was asleep. She tells him that no, she was asleep so she could not have heard anything. Which is literally true. All this is a test of her reliability and credibility. Not so much a test of the facts. Because he rarely puts anything to her during the first two parts. But we have lots of putting-to-yous in Part 3.

So far in Witness vs Oscar Pistorius :

Ms Burger says she heard a woman scream. Terrible, blood curdling, fearful screaming. She says although its not in her affadavit she mentioned this to Capt. van Aardt during her affadavit. He can confirm this. (insert time here. Anybody? OK. I'll do this later.)

Day 1. Part 3. 24:30:
Oscar's version is: He fired four shots. At some point in time when he realized it might be Reeva, he was screaming for help. He screamed. And opened the sliding doors. And after that he bashed the door three times with the bat. We have experts. Roux: I put it to you that..on tests people will say the bashing of the door would resemble, when you hear it from a distance, gun shot wounds. It's hard (meaning loud): Dwa! You understand? It's not soft hitting, you hit the door to break. Do you understand that?

Day 1. Part 3. 34:07:
Ms Burger says she heard four shots after the screaming. Bang....bang, bang, bang. The screams faded with the last shot. She did not hear any other sounds after that: Not screaming and not anything else that sounded like shots. Maybe she was in the loo, maybe asleep, but she only heard the screams and the four gun shots.

Day 1. Part 3. 34:25:
Roux puts it to Burger that it was Oscar screaming that night. She replies that she definitely heard a woman. She doesn't know what Mr. Pistorius sounds like when he screams. So Roux says that he will prove that OP screams like a woman.

Day 1. Part 3. 35:00:
Roux: This is what I put to you. He fired shots. He was beyond himself screaming after that. Higher and lower. And that is why you heard a woman screaming and also a man screaming. (35:25) You heard both. But it was the same person.
Burger: I'm 100% certain that I heard two different people that evening. Male voice. Female voice.
Roux: You did not hear them at the same time.
Burger: True. Lady called for help and then shortly afterwards a man help, help, help.....I have no doubt that it was two different people. They did not sound remotely the same. (Again at 37:55. Two different people. Female. Male.)

Day 1. Part 3. 38:25:
Roux says: The hitting of the door with the bat was shortly after the shots. Not a long time. And you must have heard it.
Burger says: I'm sure gunshots will be louder than a cricket bat on a door. I'm sure I heard shots.

Day 1. Part 3. 50:00:
Roux: You should have been awake. You did not hear a cricket bat hitting a door so hard that it breaks the door?
Nel: I object. It was now put to this witness: "You did not hear it," as if it is true, as if it did happen and she could have heard it. He then also says its been asked and answered at least five times.
Roux: Huh? Is Nel saying the door wasn't hit with the bat?(I'm paraphrasing?)
Nel: I'll rephrase. As if it happened so loudly that she should have heard it.
Roux: We put to the witness. Could there have been gunshots before you woke up? She said no.
Judge: She explains it in terms of distance. She was far away.
Roux: We put it to her that she heard the bat, not the gunshots.
Judge: Yeees. You can put it to the witness. (52:12)

Day 1. Part 3. From 56:00:
Roux tries very hard to get this witness to say she heard both Oscar and Reeva scream at the same time. She keeps saying no. She heard them both call for help, but only the woman screamed. At 56:17 Roux: But you heard him screaming....Burger:Call for help. I heard him call for help. There was fear in the woman's voice. The man sound flat. After being pressed by Roux on why she thinks this could have been she says she'd wondered about this. Perhaps the man was mocking the woman? (Roux: Righteous Indignation! Nel: You asked her opinion. I mean, really. Paraphrasing here.)

Verrry interesting, this.
Click to expand...

I can not edit this post any more. So I will add the extras here.

Day 1. Part 3. From 56:00
Roux tries very hard to get this witness to say she heard both Oscar and Reeva scream at the same time. She keeps saying no. She heard them both call for help, but only the woman screamed. At 56:17 Roux: But you heard him screaming....Burger:Call for help. I heard him call for help. There was fear in the woman's voice. Day 2. Part 3. 13:34: Talking about the man and the woman shouting for help. After being pressed by Roux on why she thinks this could have been she says she'd wondered about this. Perhaps the man was mocking the woman? (Roux: Righteous Indignation! You don't want to make any concessions! Nel: You asked her opinion. I mean, really. Paraphrasing here.)
 
minor4th said:
It was at 3:16 and lasted 58 seconds.

Link
Click to expand...

Approximately 16 minutes after being woken up by "petrified," blood curdling," screams, they called the wrong security person. That's a long time and very strange to me. Do you know if they ever reached the right person to report what they heard?
 
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