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How damaging was Oscar Pistorius' cross examination?

By Susannah Cullinane, Nick Thompson and Kelly Phelps, CNN
updated 6:12 AM EDT, Wed April 16, 2014
Oscar Pistorius is hugged by a woman as he leaves court in Pretoria, South Africa, on Wednesday, April 16. Pistorius, the first double amputee runner to compete in the Olympics, is accused of intentionally killing his girlfriend, Reeva Steenkamp, in February 2013. Pistorius has pleaded not guilty to murder and three weapons charges. Oscar Pistorius is hugged by a woman as he leaves court in Pretoria, South Africa, on Wednesday, April 16. Pistorius, the first double amputee runner to compete in the Olympics, is accused of intentionally killing his girlfriend, Reeva Steenkamp, in February 2013. Pistorius has pleaded not guilty to murder and three weapons charges.
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Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
Oscar Pistorius murder trial
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STORY HIGHLIGHTS
  • Pistorius is accused of deliberately shooting his girlfriend Reeva Steenkamp
  • He says he shot Steenkamp accidentally in his bathroom, mistaking her for an intruder
  • The Olympic runner stands trial for premeditated murder in Pretoria on March 3
  • If convicted of the charge of premeditated murder, he could be jailed for 25 years

Editor's note: South African Olympian Oscar Pistorius has been charged with murdering his girlfriend, model Reeva Steenkamp, at his Pretoria home. CNN spoke to James Grant, senior lecturer in criminal law at South Africa's University of the Witwatersrand, and CNN legal expert Kelly Phelps about what might happen next.

(CNN) -- What is Oscar Pistorius charged with?

The Paralympic sprinter stands accused of the premeditated murder of Reeva Steenkamp in his home on February 14, 2013. He also faces a gun charge related to the killing, along with two additional gun-related charges for two separate instances of firing a gun in a public space before the killing.

Why is Pistorius facing a judge rather than a jury trial?

South Africa abolished jury trials in 1969, while the country was under apartheid, due to fears of racial prejudice by white jurors. Pistorius will be tried in a high court in Pretoria by Thokozile Matilda Masipa -- the second black woman appointed to the bench since apartheid ended.

What are the sentencing guidelines for premeditated murder?

For premeditated murder, the mandatory sentence in South Africa is a life sentence, which in practice is 25 years unless someone can prove extraordinary circumstances.

Extraordinary circumstances could include a combination of number of factors: for example, that it was a first offense, the age of the person and in Pistorius' case, his disability and the impact this could have had on his actions.

READ MORE: Who is "Blade Runner" Oscar Pistorius?

However, legal expert James Grant said if the court accepted the prosecution's case -- that Pistorius chased Steenkamp into the bathroom and "hunted" her down -- the track star's defense team would be hard-pressed to convince the court that there should be any considerations that should override the repugnance that should be felt.

What happens if Pistorius is found not guilty of premeditated murder?

If Pistorius is found not guilty, he would face a "competent verdict" or lesser charge of culpable homicide, which is based on negligence.

Pistorius is not claiming self-defense; he is claiming to have been mistaken about his need for self-defense. He is denying that he intentionally unlawfully killed Steenkamp.

Oscar Pistorius appears in the North Gauteng High Court in Pretoria on Monday, March 3. South Africa's double amputee track star is accused of the murder of his girlfriend Reeva Steenkamp on February 14, 2013. Oscar Pistorius appears in the North Gauteng High Court in Pretoria on Monday, March 3. South Africa's double amputee track star is accused of the murder of his girlfriend Reeva Steenkamp on February 14, 2013.
Photos: 'Blade Runner' Oscar Pistorius
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Photos: \'Blade Runner\' Oscar Pistorius Photos: 'Blade Runner' Oscar Pistorius
South African model Reeva Steenkamp died in February 2013 after she was shot at the home of her boyfriend, Olympic sprinter Oscar Pistorius. She was 29. Pistorius has been charged with murder. South African model Reeva Steenkamp died in February 2013 after she was shot at the home of her boyfriend, Olympic sprinter Oscar Pistorius. She was 29. Pistorius has been charged with murder.
Steenkamp: From law student to cover girl
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Reeva Steenkamp: From law student to cover girl Reeva Steenkamp: From law student to cover girl

Grant said the defense boiled down to Pistorius saying "I made a mistake."

If the court were to rule that the mistake was unreasonable -- based on what an objective, ordinary South African would do in the circumstances of the accused -- he would be found guilty of culpable homicide.

Grant said he would expect a court to probably conclude that it is unreasonable to fire at anybody through a closed door regardless of whether they were an intruder, because of the value of human life.

"I'm expecting that if he beats the murder charge, he is in very grave jeopardy of being convicted of culpable homicide," he said.

What would the sentence be if Pistorius were convicted of the lesser charge of culpable homicide?

If Pistorius is convicted of culpable homicide, no minimum sentencing legislation would be triggered. "Courts are able to exercise their complete and ordinary discretion," Grant said.

This means, theoretically, Pistorius could get a non-custodial sentence if convicted of culpable homicide. Grant said there had been examples of people killing a loved one accidentally where they had avoided jail.

If, however, the court took a view that Pistorius had been grossly negligent, Grant said, he would guess the runner could be jailed for up to 15 years.

What about appeals?

If Pistorius is convicted, he could potentially appeal to the supreme court and even eventually to South Africa's constitutional court.

If the initial court did not give him leave to appeal, he could petition South Africa's chief justice for permission.

The right to appeal depends on whether, based on the facts of the case, the initial judge or magistrate believes a different court could possibly reach a different verdict.

South Africa's highest court, the constitutional court, used to be only for cases regarding constitutional matters, but a recent act of parliament broadened its remit.

How long will the trial last?

In South Africa, courtrooms are booked in tranches of a few weeks at a time, so the first phase of Pistorius's trial will last three weeks beginning on March 3. Asking how long the trial will take "is akin to asking how long a piece of string is," legal expert Kelly Phelps said. "The chance of this being argued out over three weeks would be a small miracle."

Violence in South Africa also on trial
Last photos of Pistorius and lover

If the trial follows an ordinary course, James Grant said, he would expect it to last four to six months -- but that would depend on how aggressively the defense challenged the prosecution's case.

READ MORE: Reeva Steenkamp, from model to law graduate

"They could dispute everything, in which case there could be 'trials within trials,' " he said.

But he said the defense would have to balance that "against not appearing to challenge things for the sake of it" and alienating the court.

Are there restrictions on reporting any aspects of the trial?

Yes. In South Africa anyone can be found guilty of contempt of court if for impugning the dignity of judicial proceedings, interfering with the accused's right to a fair trial, or scandalizing the criminal justice system, according to Phelps.

Phelps said one big difference when it comes to contempt of court is the fact a single judge will be presiding over the case, rather than a jury. "It's believed that judges are cloaked in the letter of the law and have an ethical and professional responsibility to apply the law in a fair and impartial manner, and that means this risk of reporting influencing a trial is less in this system than in a jury system."

But unlike in a jury system, where juries often only have to issue a verdict -- and not declare the reasons for their decision -- the judge is required by law to issue clear reasons for the verdict. "If it were apparent in those reasons that there did appear to be a lack of impartiality due to media influence, there's recourse to an accused person," said Phelps.

Would Pistorius be given special treatment in prison if he was convicted and jailed?

CNN's team in Johannesburg understands the double amputee would not receive special treatment, with even blind prisoners being placed with sighted prisoners in South Africa.

But, ahead of his release on bail last year, the African National Congress Women's League said the athlete had in fact benefited from special privileges, adding that his family could visit him outside visiting hours, unlike relatives of other inmates.

"A strong message must be sent out that wealth and celebrity cannot give you an advantage over the law," the group said in a statement at the time.

What is the reputation of South Africa's legal system?

Grant said that South Africa was proud of its constitution and had a well-respected judiciary and that its substantive criminal law was "similarly advanced and progressive and very well considered."

"The problems that we're facing are more of a systemic procedural nature.

"We have an incredibly strained police force that's not particularly well-trained -- they're massively overloaded -- and we're struggling with issues of corruption within the police force and possibly even within the prosecution service," he said.

Grant said that, regrettably, wealthier South Africans had access to better legal resources than most of their compatriots.

"Unfortunately, most South Africans don't have that extent of resources available to them. They wouldn't have available to them the best possible defense lawyers, but in a strange sense, this is not a problem unique to South Africa. Money buys for you a degree of protection. That's of course a universal problem."

In March of last year, the South African government's midterm report noted that "The effectiveness and ability of the criminal justice system to serve as a deterrent against crime is unfortunately still under threat of being undermined by the actions of a small number of those who serve in it."

It continued: "Since 2009, investigations have uncovered 1,529 persons in the criminal justice system who were possibly involved in corruption-related crime.

"For the year April to September 2011, 192 officials were criminally charged regarding corruption, resulting in 86 officials being convicted, while a further 296 officials were departmentally charged."

What are conditions like in South African jails?

South Africa's jails were put under the spotlight during the extradition hearing of Shrien Dewani, the Briton who stands accused of ordering a hitman to murder his new wife in 2010.

One of the defense's arguments -- not upheld -- against extradition was that Dewani would not be safe in South African custody.

His lawyer quoted figures from a South African report suggesting that almost half of prisoners believed sexual abuse was a feature of life in South African jails. But Dewani's request for Britain to block his extradition was declined in January of this year, and he has now appealed the decision to Britain's highest court.

READ MORE: What life's like in a South African prison

Nooshin Erfani-Ghadimi, project coordinator for the Johannesburg-based Wits Justice Project, told CNN that South Africa's constitution and its bill of rights with regards to prisoners' rights were among the best in the world.

However, she said, overcrowding meant "unfortunately that doesn't necessarily translate into practice."

"A legacy of apartheid is that prison cells are still unfortunately a place where prisoners can be abused," Erfani-Ghadimi said.

South African public broadcaster SABC cited the Correctional Services Department as saying prisoners with disabilities were treated with dignity and enjoyed the same rights as able-bodied inmates.

However, a "statement of agreed factual findings" in the case of inmate Dudley Lee -- who contracted tuberculosis while imprisoned -- may point to a different reality. Lee said he "begged, bullied and bribed" to get the medication he needed.

How damaging was Oscar Pistorius' cross examination?

From a legal perspective it is really too soon to tell. His testimony will be considered by the judge and assessors in light of all the evidence presented at the trial, and we don't yet know what aspects of his testimony will be supported by any subsequent evidence presented by the defense's remaining expert witnesses, who are yet to testify.

We do know what holes Nel was trying to poke in Pistorius' case, though. For example, he claims that aspects of Pistorius' version of events on the night of Steenkamp's death are so improbable they can't possibly be true. This is what Nel suggested regarding the fact that Pistorius didn't wait for Reeva to answer him.

Nel has also suggested that the additional information which Pistorius mentioned for the first time at trial, rather than in his earlier bail affidavit, such as the blue LED light in the room, is evidence that he is lying and making up his version as he goes along.

Whether the judge ends up agreeing with Nel's assertions will depend on how they fare in comparison to the rest of the evidence presented during the trial.

Did Pistorius change his defense on the stand? What's the legal difference between 'it was an accident' and 'I pulled the trigger by accident'?

Pistorius has always argued Putative Private Defense. In layman's terms this means "I genuinely, but mistakenly, believed I was acting in self-defense."

Describing the killing as "an accident" is not necessarily incongruous with this. In other words, "I killed Reeva by accident, or by mistake." That is why in Roux's re-examination he asked Pistorius what he had meant by "accident" and Pistorius intimated that the whole outcome of the night, that is, the death of his girlfriend, was an accident.

If he says "I pulled the trigger by accident" this is a different defense -- the defense of Automatism or Involuntary Conduct.

The legal definition of voluntary conduct is that the accused's conduct was governed by his conscious free will. Where his conduct is not controlled by his conscious mind, the conduct will be involuntary and the accused will be acquitted. If he says "I pulled the trigger by accident" then the conduct was not voluntary, as his mind was not applied to it -- for example, "my finger slipped and the gun went off."

Previously during his cross-examination, Pistorius told Nel that the gun went off by accident, which is why Nel continued to pursue that line of questioning, providing Pistorius with the opportunity to place on record that he was changing his defense.

Pistorius is skating close to the line of changing his defense but has not quite crossed it -- yet. He ended his testimony by clearly stating "it was an accident," which can still be read in line with the Putative Private Defense. Nonetheless, jumping from one contention to the other is unlikely to leave a positive impression in the minds of the judge and assessors.

Why was Roux's re-examination so short?

Roux was adopting the opposite strategy of that adopted by Nel; whereas Nel kept Pistorius on the stand for as long as possible, jumping between different lines of questioning, providing opportunities for Pistorius to confuse his version of events and expose inconsistencies in his testimony, Roux needed to keep it short and sharp, simply focussing on the core parts of the defense case that he believes undermine the state's case.

This conciseness was designed to elicit clear answers from the witness and to clarify certain key issues in the mind of the judge and assessors. The subject matter Roux chose to cover -- the screams, allegations of crime-scene contamination, the independence of Pistorius' bail affidavit and the loving message on the Valentine's card Steenkamp wrote to Pistorius -- all strike at the core of the state's case.

So where does this leave us?

We now have a clear narrative of the state's version placed on the court record. Their version of events is that Pistorius and Steenkamp had a heated fight in the bedroom, she fled from him, screaming in terror, locked herself in the toilet for protection and that Pistorius chased her down and intentionally shot and killed her. They have tested this version against Pistorius' testimony through cross-examination.

Now the defense has the opportunity to test the state's version, through the presentation of their remaining expert witnesses. At the end of the defense's case both sides will present closing arguments in a final attempt to convince the judge and assessors why their case is more reliable and persuasive. Ultimately, it will be up to the judge and assessors to decide whether the state has met their burden of proof.

Is Pistorius done, or can the defense bring him back up at some point to clarify some answers?

Pistorius is done testifying now. He can only be recalled if new evidence is found. Witnesses only get one chance to put their testimony on record, otherwise it would be too easy for any witness to tailor their evidence. It is the same rationale behind the rule that once a witness begins testifying they cannot be in contact with the legal team for whom they are giving evidence.

READ MORE: Case highlights South African gun culture

READ MORE: Oscar Pistorius' affidavit to court in full

CNN's Brian Walker and Richard Greene contributed to this report.

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