Difference between revisions of "Representing Victims of Torture"

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===Common Law Remedies===
 
===Common Law Remedies===
 
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:
 
The following is a list of some of the ways criminal defense lawyers in a common law system can represent victims of torture who are accused of crimes:
* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant's confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U. S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref>  There are several opportunities to raise this defense in a common law system:
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* '''Exclusion of confessions''' - The most common method of defense is to argue that the defendant's confession should be excluded because it was produced by illegal means.<ref>[[Brown v. Mississippi, 297 U.S. 278 (1936)]]</ref> The [[Exclusionary Rule | exclusionary rule]] should apply not only to the confession, but to all evidence produced as a result of the confession. This would be the case in the United States, subject to certain limitations.<ref> See,[[Exclusionary Rule | exclusionary rule]]</ref>  There are several opportunities to raise this defense in a common law system:
 
** '''Arraignment / Bail''' - This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant's confession was induced by torture or that the confession evidence should have no bearing on the bail motion.
 
** '''Arraignment / Bail''' - This may be the earliest opportunity for a criminal defense attorney to raise a defense for the client. At this early stage, the defense attorney should argue that the case should be thrown out because defendant's confession was induced by torture or that the confession evidence should have no bearing on the bail motion.
 
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.
 
** '''Pre-trial motions''' - The defense attorney should file for a motion to suppress the involuntary statement as the product of torture. If the judges determines that a question of fact exists as to whether the confession was involuntary she should hold a pre-trial hearing to make a factual determination. This pre-trial hearing is like a mini-trial, with both parties able to call witnesses. As a practical matter, the defendant will rarely be called to the stand. The pre-trial motion and hearing process serves two strategic purposes for the criminal defense lawyer. First, if the defendant wins the motion to suppress the confession, this puts the defense in a more favorable position at trial. In a common law system winning this motion may even result in dismissal of the case. At the very least, it puts the defendant in a superior bargaining position for plea negotiations. Second, even if the defendant fails to win the motion to suppress the confession, valuable evidence is gained during the hearing process because this may be the first and only time the defense lawyer is able to hear the story of the interrogation police prior to trial. In certain circumstances the hearing could provide valuable impeachment evidence that can be used at trial.

Revision as of 19:40, 4 July 2010