Difference between revisions of "China Criminal Defense Manual - Developing a Defense for Trial"

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*Witness' Character Traits and the Scene of the Alleged Crime
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*'''Witness' Character Traits and the Scene of the Alleged Crime'''
 
**When reviewing an eyewitness testimony, focus on the following aspects listed below.  An understanding of the witness' character traits will help the lawyer narrow the range of investigation and identify the strengths and weaknesses of the witness' testimony.  The items listed below affect how the witness might have observed facts of the case.
 
**When reviewing an eyewitness testimony, focus on the following aspects listed below.  An understanding of the witness' character traits will help the lawyer narrow the range of investigation and identify the strengths and weaknesses of the witness' testimony.  The items listed below affect how the witness might have observed facts of the case.
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{| border="1"
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|'''Witness' Character Traits'''
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|'''Surroundings of the Scene '''
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|-
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|gender
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|lighting conditions
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|-
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|intelligence
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|daytime or nighttime
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|-
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|memory capacity
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|exact time during the day or night
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|-
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|educational background
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|moonlight
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|-
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|employment history
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|rain
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|-
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|speech impediment
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|coldness
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|-
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|age
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|heat
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|-
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|temperament
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|number of people present
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|-
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|mental state
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|duration of observation of the occurence
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|-
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|state of health
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|realistic ability to see all the people present and their activities at the scene
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|-
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|alcoholic consumption
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|criminal weapon
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|-
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|trauma caused by medicine or illegal substance
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|natural plantlife
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|-
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|eyesight
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|buildings
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|-
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|relationship with the victim
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|automobiles
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|-
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|reletionship with the defendant
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|traffic conditions
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|-
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|relationship with the co-defendant
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|observation angle or position
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|-
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|motive
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|bird's eye view
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|-
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|partiality towards the client, victim or codefendant
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|upward view
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|-
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|bias toward the victim or witness
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|
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|-
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|was threatened before, during or after the alleged crime
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|
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|-
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|}
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==THEORY OF DEFENSE AND STORYTELLING METHODS==
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===Introduction===
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During the course of investigation and preparation for trial, a defense counsel should gradually build and develop a theory of defense, as well as continually revising it.  A theory of defense consists of three parts: the relevant law, facts of the crime and emotional factors.  In the court, a defense counsel uses a theory of defense to tell the client's story.  The storytelling is composed of three parts: the general theory of defense, several supporting sub-theories, and the oral presentation to the court.  Varied tones of voice, proper rhythm and tempo in questioning, body language, communication with your eyes, and application of different rhetorical skills, these factors make for effective storytelling, creating an atmosphere that both keeps the audience in suspense and engaged and builds a positive environment for the argument of defense.  It is in such an environment that the court will evaluate the evidence. 
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'''Execution:'''
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#A defense lawyer should build a general theory of defense centered on the client's best interests and based upon the actual situation, which will help him evaluate what choices to make throughout the defense process.
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#The counsel should allow the theory of defense to guide his focus during the investigation and trial preparation process.  The counsel should dig into and expand upon the facts and evidence forming around the theory of defense.  Nevertheless, the counsel should not become a "prisoner" to his theory of defense.
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===Work Form for Developing a Theory of Defense===
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The following questions may help a legal aid lawyer to build a complete and coherent theory of defense:
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#What is your theory of defense? (e.g.  innocence, alibi witness, misidentification)
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#Why do you believe this is the best theory of defense?
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#What is the relevant law? What are the elements of the offense?  How will your theory of defense prove the client's innocence?
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#What are the unalterable facts that you need to confront and explain in the theory of defense?
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#What are the facts in favor of the client?
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#What is the key emotional theme in the case?
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#What emotional themes is the prosecutor most likely to use in his argument?  How will you use your theory of defense and emotional theme to refute these emotional themes?
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#Make a list of the prosecution witnesses with specific questions attached to their names.  Briefly point out the questioning styles. 
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#Make a list of the defense witnesses, and under each of their names, write out how you plan to question them.  Finally, briefly indicate the style of questioning. 
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#List your main desired objective when directly questioning the defendant.  How will the defendant's testimony strengthen your theory of defense?
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#What further investigation do you need to do to complete your theory of defense?
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#Do you need to solve any problems with the evidence?  Are these problems likely to strengthen or weaken your theory of defense?  How will you explain the evidence that is inconsistent with your theory of defense?
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#Make a brief, effective statement for your theory of defense. 
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==='''Storytelling: Test Your Theory of Defense and Themes at Court'''===
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To defend your client effectively, the lawyer must understand how to tell a story to the court.  The more convincing and touching the story is, the more persuasive the argument becomes to the judges, who ultimately decide the facts of the case.  Every well-knit story needs a plot, and for a defense argument, a plot provides the best tool for explaining the facts of your theory of defense. 
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==='''Why must the legal aid lawyer use storytelling methods in the court?'''===
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Storytelling allows the legal aid lawyer to set the stage, introduce the characters, create an atmosphere, and organize ideas into a carefully crafted narrative format, thereby impacting the way each judge perceives a given case.  Without such a framework, judges will understand the evidence and testimony in accordance with the prosecutor's argument.  Once the defense lawyer successful executes a framework, he can use the client's experiences to influence the judges' imagination, leading most judges to understand the evidence in the context of the client's past experiences.
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More importantly, storytelling will cause judges to use both their hearts and minds in considering the defense's argument.  "One who relies on reason" is more likely to change their judgment, because they often use the following thought pattern to reflect on and analyze a case: "My (the lawyer's) view is based on logic.  Therefore, if you (the judge) reasonably point out any flaw in my thinking, I will consider changing my views."  In contrast, "one who relies on his heart and emotions" will reflect on and analyze a case in a different way: "I am right, and you are wrong, so you must change your view."  And these people will be your most powerful allies in the court.
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==='''Use Effective Language in Storytelling'''===
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The following suggestions may help you to decide what language to use or avoid in stating your theory of defense on behalf of the client. 
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#The language for storytelling and the language the lawyer usually uses have obvious differences.  The lawyer should tell the story as if he is casually speaking with friends. 
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#Speak accurately.  What you actually say should match what you intended to say.
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#Translate legal terms or abstract concepts into clear, common and simple language.
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#Use effective language.
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##Use active tense.
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##Try your best to express yourself using nouns and verbs.
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##Avoid unconscious hesitation or useless verb pauses.
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##Use language that has the appropriate emotional and appealing elements.
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#Use vivid language.
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##Use concrete rather than abstract language.
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##Use detailed and accurate rather than general and vague language.
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##Create lively images with language:
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###First visualize the images you wish to describe before describing them at court. 
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###The capacity to visualize details will increase your power of persuasion.
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###Verbal images are better than subjectively using abstract, vague and general terms. 
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#There should be sentence variety, but short sentences are best.  Written sentences are usually longer than oral sentences.
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#Do not refer to your notes while speaking: this would eliminate all the advantages of storytelling.
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==='''Conclusion'''===
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Revision as of 17:22, 20 April 2010