In law school, one of the messages about successful trial preparation is prepare, prepare and prepare. However, apparently this does not bear well if you are a witness at your own Royal Commission, at least if you are a woman, former Prime Minister and a lawyer.
“Former prime minister Julia Gillard did not commit a crime and was not aware of any criminality committed by union officials during her time as a lawyer for the Australian Workers Union, the trade union royal commission has found. But Ms Gillard demonstrated a “lapse in professional judgment” in her work for the AWU and at times gave “evasive”, “excessive” and “forced” evidence to the commission. Ms Gillard’s demeanour during the commission’s hearings contained an “element of acting”, Commissioner Dyson Heydon found in his interim report released on Friday. He also said Ms Gillard’s “intense degree of preparation, her familiarity with the materials, her acuteness [and] her powerful instinct for self-preservation” made it difficult to judge her credibility as a witness.While Ms Gillard was generally what judges call a “very good witness”, she demonstrated “occasional evasiveness, or non-responsiveness, or irritability”, Commissioner Heydon found.”
Given what we now know about implicit bias and our general lack of awareness of what implicit biases we might harbour, it would appear to be very relevant to ask how implicit biases might affect judgments such as those made by a judge in the courtroom about a witness’s character. For example, the character traits and behaviour which we take to determine that a person is a “truthful” or “ideal” witness might stem from characterisations and general stereotypes which we hold about certain groups of people. In the case of Commissioner Heydon, it appears as though the “ideal” or “truthful” witness very much invokes a unsophisticated witness which has little or no experience in the courtroom or of professional matters. Heydon’s comments unfortunately appear to invoke some common stereotypes about women. Perhaps he may have preferred that she was more demure, more “respectful”, more naïve and less opinionated. At the very least she could have prepared less for her case!