Thinking aloud:
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CRIMINAL lawyers are often misunderstood – except by their clients. Some members of the public wonder: Why would a lawyer want to defend a criminal? Don’t they have a conscience? Do they only think about the fees?
To better understand these questions, we have to look at our justice system.
Our criminal justice system is made up of the enforcement agencies, the prosecution, the defence and the courts. Then there are the relevant laws within which all of these four must operate. They cannot go beyond the parameters set by the relevant laws applicable. In other words, criminal justice in our country is administered in accordance with the law.
This is what we mean by the rule of law.
The enforcement agencies cannot act arbitrarily and arrest whoever they want or investigate whoever they want, in whatever manner they want. We must recall that in criminal investigations history, methods of torture were allowed by the state in some countries. Modern states no longer condone this and in our country torture in any form during remand or detention is illegal. A criminal lawyer, however, has to ensure that his client has not been subjected to any torture and if he has, the lawyer will ventilate this fact to the court. This is because his client may have confessed to the crime due to torture.
Likewise, the Attorney General’s chamber has a constitutional duty to prosecute and not to persecute. The prosecution is also subject to the “rule of law” and cannot, in their zest, act illegally. Lay persons of course do not understand, but it is also the duty of the criminal law- yer to ascertain if the rule of law, in this case, is also complied with, in order for justice to be done in accordance with the law. This is a challenging and time- consuming task for the lawyer as he has to examine not only the facts, but also how the facts have come about, among many other considerations.
Preparation of the defence is major and fundamental task. Clients, being lay persons, do not and are not expected to understand the concept of “justice in accordance to the law”. However, the lawyer may come across a client who thinks he knows more than the lawyer and thus do damage to his own case. I personally often tell my clients that if there are looking for ultimate justice”or “moral justice”, they have wait until they die and are reborn in the hereafter. On earth, lawyers work within the parameters of justice in accordance with the law.
The first challenging task is getting instructions from the client as to their own case – to get their version of the story. A good lawyer is able to help the client tell his story as effectively and as clearly as possible. Many clients may simply rattle off, become emotional or defensive and forget some versions of their account.
Some clients are totally unhelpful and will only repeat the mantra that they are innocent. Often they may not have the evidence or they think they do not have the evidence to back up part of their story. For this reason, I often have to resort to my own investigating team investigating various matters relevant to the case, including my own client’s version of the story. This is because I do not like to be surprised in court.
The prosecution will, within a reasonable time before the trial commences, give the documents that they will be relying on to the defence. Once again the lawyer will examine these documents and discuss with the client. The lawyer will also examine the evidentiary nature of the documents and the legal admissibility of these documents. In short, even before the trial starts, tremendous amount of work on the defence has to be done.
Our criminal court system is adversarial in nature. This simply means that the prosecution will try to prove its case beyond reasonable doubt and the defence will try to raise reasonable doubts on the prosecution case. The judge is supposed to be an impartial referee hearing both sides for the first time with no background knowledge. He is going to decide only based on the evidence tendered before him. The judge will also ensure that the “rules of the game” are complied with by the prosecution and the defence, and he may intervene when the trail gets “heated up” sometimes. Managing the trial judge is another challenge for both the prosecution and the defence.
In complicated cases, it is very common for arguments to ensue between the prosecution and defence. Due to the adversarial nature of the trial, these arguments may “get heated up”in raising objections and making submissions. The lay person may think that the prosecution and the defence are quarrelling and that they may never talk to each other for the rest of the life. This is far from the truth.
The truth is this: prosecutors, defence lawyers and judges are all “lawyers” – in the sense that they are legally trained. As lawyers, we are used to disagreements and they are natural to us. We may be arguing forcefully and passionately against each other but it is not uncommon that after the trial, we may be sitting down together, having coffee and exchanging jokes. The next day, we would be back to professionally executing our respective duties as well as we should. This is something many lay persons could never understand.
Within the concept of administration justice, in accordance with the law, is the presumption that a person is innocent until proven guilty. This is actually quite a complex concept. Non-lawyers who, understandably, perceive mostly that when a person is charged, he must be guilty. Of course, they do not think so when they themselves, or their loved ones, are charged.
For example, a man kills a women with a kitchen knife and is charged with murder. The public may think that the man is guilty of murder and should be hanged. The criminal lawyer will not assume so. He will study the circumstances of the case. It may very well unfold that the man is of unsound mind or that it is a crime of passion, where the man had no intention of stabbing the women. The case could also be completely circumstantial, where it is very difficult to reasonably conclude that the man did kill the women with a kitchen knife. Should such a man be deemed to be guilty and hanged? If the man is acquitted of the charge, should the defence lawyer then be accused of “letting criminals off ”?
Our justice system is also bound by the principle that it is safer to let ten criminals off then to wrongly convict an innocent man. That sums up briefly why a criminal lawyer does what he does.