Rwanda Criminal Defense Manual - Defense Stategies

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Background

Defense strategies are the methods by which a criminal defense attorney decides to try his or her client's case. They are different from hearing strategies, in that they are principles decided upon, developed and fixed by the lawyer and client prior to the hearing They should remain consistent up to the deliberations.

It is fundamental that the defense strategy is agreed upon by both the defendant and the lawyer. While the lawyer may have special knowledge and expertise about the subject matter, ultimately, it is within the authority of the client to determine the purposes served by legal representation within the bounds of the law and the lawyer's professional obligations. Thus, a lawyer should present the available defense strategies to the client, advise the client on the advantages and disadvantages of both, and, with the client choose and apply the best defense strategy.

Lawyers have an implicit duty of communication, as being a successful and competent lawyer requires having the ability to communicate the best defense to the client and, subsequently, working with the client to maintain the strategy throughout representation in this manner. In the case of a rupture defense, however, which generally extends to political cases, the defendant is able to seriously limit the freedom of the lawyer in the formulation of a strategy.


Rupture And Connivence (Complicity) Defense

A. Rupture Defense

A rupture defense is founded on contesting the Tribunal's legitimacy. It is a questioning of the State authority and judicial power required to prosecute, and win, the case at hand.

Rupture defense, as a criminal defense strategy, appeared in the 1960s during the wars that accompanied and lead to decolonisation, most notably the Algerian conflict. It is unknown whether this defense strategy was first chosen by lawyers, or imposed upon them by their clients given the types of cases they were defending.

A lawyer may find him or herself defending members of political movements or rebelling ethnicities, who are fighting for independence, autonomy, or revolution. In these cases, the clients may choose not to recognize the legitimacy of the Tribunal in place to judge their acts and adjudicate their case.

Lawyers found in this position may, at first, experience a conflict of conscience, as they are regular participants of the judicial system whose legitimacy is being attacked.

Complicity Defense

Complicity defense is the standard defense most often prepared by a lawyer under civil law. In this defense, the lawyer and client admit to the legitimacy of the system and seek to argue a defense within the bounds of its legal substantive and procedural rules.

The lawyer's role in pleading a complicity defense is to satisfy, to the best of his or her ability, the objectives of the client. Legal ethics prevent a lawyer from making formal pleadings against the interests or desires of the represented client.

The outcome is often the same:

The defendant, if he or she considers the issue fully and coherently, should request not enter a plea, as this would, be an admission of the judiciary system's legitimacy.

Throughout the proceedings, the lawyer should be engage and advocate fully for his/her client, and he should not remain seated and/or silent.

The lawyer must either renounce the defense of the defendant during the hearing while still committing to be present as frequently as commissioned by the President of the Tribunal, or explain the position of the defendant in advance, thereby justifying the absence of both a plea and a defense. It should be noted that the client can forbid the lawyer to speak on his/her belief, which can be a serious problem.

Whatever the situation, it is necessary to proceed with extreme caution. The client's position and wishes in terms of the defense must be precisely explained to the tribunal. Equally, and this is fundamental, the client must be informed of the consequences such a defense carries in terms of sentencing. In practice, putting forth such a defense can lead to the maximum sentence possible, if convicted.

In addition, to the lawyer must explain to the tribunal the situation he or she is in being tied to the defendant and the Tribunal by ethical and professional obligations.

Take heed in putting forth a rupture defense. This cannot be stressed enough, as it is by definition a problematic non-defense, rather than defense.

It is important to remember that, in this context, the lawyer must not be associated with the action of the alleged crime, in risk of losing the professional objects of performing your job properly. At the same time, it is the lawyer's job to ensure that all possible avenues of defense have been explored.


Admitted or contested guilt

To prepare an effective defense, the lawyer needs to be familiar about the details of the case, and the strategy.

The civil law system in Rwanda does not, in principle, recognise the practice of putting forth a guilty plea, as it exists under Anglo-Saxon law. It would thus seem that in regular trials such pleas are not allowed. Knowing this, should the client admit to actions, or not?

Despite this, usually and logically, this is the first thing asked of the accused.

The Rwandan Criminal Code--following the example of many others--recognizes mitigating or attenuating circumstances as a partial or full defense to a crime. Mitigating and attenuating circumstances are not automatically assumed when the defendant acknowledges the facts raised. Contesting the evidence is a sure-fire means of giving up the possibility of using mitigating and attenuating circumstances.

Furthermore, the unconscious Tribunal - as much as the collective unconscious - is generally sensitive to the admission of guilt for a variety of reasons, which differ from one person to another.

A number of magistrates, of the bench as well as of the prosecution, have admitted to looking favorably upon cases in which actions are acknowledged, often because it is a considerable gain of time, or simply because systematic contestation is irritating in itself. As a result, the lawyer must respect a key principle if he would like to successfully plead attenuating circumstances or the personality of the defendant :

Never waste time on the details of facts that have already been admitted.

It is always a good stratgey to keep the Tribunal in a good mood by not wasting time. Always remember that:

  • Justice is not about the amount of audience time
  • If it is necessary to return to and modify certain facts (whether because they are only partially known, or in order to lessen their importance), it is the proper duty of the lawyer to do so.

This may seem to be purely detail, but it can have large, long-term repercussions.

It also has immediate implications as the Tribunal will often be more severe.

In the long-tem, the lawyer who presents his case in this way risks his own credibility.

Denying the evidence (as is too often done, with regards to finger prints) is a radical means of permanently damaging the lawyer's credibility with the Tribunal. Over the course of a lawyer's career, he or she will plead hundreds of cases, many of which will be before the same magistrates. Arriving before a Tribunal that does not consider you credible is an often insurmountable obstacle.

It is often better, when faced with a client who insists on a defense based on denial of the evidence and who refuses to see that his or her strategy is fundamentally counter-productive, to cease to represent him or her, rather than to act against one's oath and damage one's own credibility in the eyes of the judge.

To summarize, a defense strategy and course of action should be settled upon from the beginning of the hearing, and if the defense miht help the client, the client should be counseled that a better idea might be to not contest the case. Be sure, however, to never convince a defendant to confess to crimes he or she did not commit). Once a decision is made, the defense can concentrate on mitigation and on the defendant's personality in order to attenuate the sentence or to propose alternative punishments to the Tribunal.

A defense strategy, when the facts are recognized, is prepared with the same level of rigor as one which contests the facts or confessions. In this context, the lawyer needs:

  • To target the defendant's acquaintances
  • To have all the elements of the defendant's personal history
  • To collect information about the defendant's past life (for example, while in prison) from social workers
  • To have his medical documents, if necessary
  • To solicit the diagnoses of medical experts or psychiatrists, as needed
  • To avoid platitude

Knowledge of the defendant's past is particularly important, due to its continuing influence upon the individual.

In a situation where the facts are contested, a defense position must be decided upon and then the centre the argument around it created.

Two major approaches are possible  :

  1. Pure and simple contestation

There is not enough space to explore this approach fully, however, the basic concept is that a lawyer is ethically forbidden from pleading other than as directed by his client. Agreement between both the defendant and the lawyer is therefore essential. It is also essential that the argument and evidence provided be consistent. It is necessary to construct the argument on concrete facts (witness statements, material evidence, etc) in order to work against the accusation. This is a paradox given the developments below.

This is a strategy choice that involves a demonstrative methodology rather than a contestation of the charges made by the prosecution that precisely explains that, and details how, the case made for the accusation has not been sufficient.

When a case is complex or if a lawyer wants the Tribunal to respond to precise points in light of appeal,it might be useful to request or depose the request for immediate release .

The principle of adversarial proceedings requires that the request for release be given to the prosecution. Nevertheless, it is not advised to give them too early, as there is a risk of seeing the Public Ministry expedite the processes in order to address the deficiencies raised.

Again, it is always a matter of finding the right balance for the strategy.

  1. The absence of sufficient charges

The term 'benefit of the doubt' is totally insufficent in this context. The notion of doubt can be difficult, seeming to cast doubt upon the whole of the proceedings and upon the result of the Tribunal. Even the innocence of the defendant may thus come under doubt, coming from the authority of a potentially 'doubtful' source. Above all the defendant does not benefit from doubt (which might, perversely, portray him or her as indeed guilty, but let go this one time). He or she benefits, on the contrary, from a presumption of innocence.

This basic legal analysis is as follows: The presumption of innocence is a fundamental and immutable principle which applies to all judicial procedures up until the pronouncement of a definitive decision (Art. 19, constitution of Rwanda and Article 44, CPC).The primary consequence is that the burden of proof wholly and unequivocally lies upon the prosecution, who must establish guilt.

The principle of judicial security means that guilt must be demonstrated and established with an absolute certainty and beyond all doubt. This is illustrated by the judicial adage upon which an equitable system is based: Better that a hundred guilty go free than one innocent be condemned. This is not a choice. This is a legal obligation, despite the objections of some. From this, if the Public Ministry is not able to fully establish the guilt of a suspect, the investigation must stop. It is never the duty of the defense to perform any action to prove the suspect innocent.

Within the contestable facts, there will be elements that will be considered apt to demonstrate the innocence of the defendant, and the case should not be deprived of them. However, it is important to remember this principle and to direct the defense's major energies towards the demonstration of the deficiencies in prosecution's case before engaging in the proof of innocence. The inverse is illogical and furthermore, it comes from a reflex which we all have and which little by little instills practice contrary to the presumption of innocence.

Do not forget that it is difficult to bring forward negative proof, that which to prove that the accused did not do something, and that it is much easier to demonstrate the lacunae of the prosecution.


See Rwanda Criminal Defense Manual