Rwanda Criminal Defense Manual - Strategies for the Hearing
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Preparing for the hearing, with regard to the victim
When meeting with or interviewing a victim of torture, there are most commonly two reactions encountered.
Victims either remain silence, a reaction developed to deal with trauma, or they are extremely talkative about what happened to them. It is also possible to find those who adopt a mixture of these two attitudes.
Regardless of the cause of or response to torture, the defense lawyer must be methodological, keeping in mind the purpose and goals of the interview.
The case must be prepared, and the client must be questioned in order to construct an effective defense.
All potentially interfering personal feelings or conflicts of interests must be put aside. Another mistake to avoid is questioning and responding to the victim out of pure curiosity as this weakens or lowers efficiency.
To proceed methodologically:
- When faced with a client who appears to have been mistreated, but who chooses to remain silent:
- Do not lose sight of the fact that he or she requires help to talk about his or her experience. Resist the temptation to speak on your client's behalf.
- A good interviewing method is to ask the victim to tell the story of interrogation from the beginning, during which you ask for numerous details (for example, colour and brand of the police car, weather that day, what people near by were wearing). These details may initially seem insignificant, however, giving small details often makes it easier to speak of violence.
- Never finish or complete the phrases of the client. Silences, even prolonged, may help him or her find the most appropriate or comfortable way of communicating what happened.
- Remember to pay attention to the details of the account. The victim's understanding of the gravity of certain acts may be different from what is legally proscribed .
- Once the client has begun, do not interrupt him or her. Wait until the narration is over to ask further questions.
- With the victims, come up with an inventory of the visible marks that resulted. Ask if there were witnesses to the arrest (especially the family or colleagues), for descriptions and even possibly names, of the perpetuators (first names are often given during physical interrogations).
- Facing a talkative victim who is outraged at his or her experience, and who bears marks:
- It is important to allow for an initial 'purging' phase during the interview, where the client is able to 'get it all out.' Take advantage of this time to identify elements that can be used to direct the later conversation.
- There can occasionally, but not always, be a tendency to exaggerate.
- Explain how certain details may aid or inform the creation of a defense (nullity, absolute defence, legal action against the perpetuators)
- Have the client make precise lists of people, of blows given, of clothing worn, and so on in order to regulate the flow.
- Have a talkative victim speak of mental or psychological torture first.
- Make breaks during the story to explain, for example, the anti-torture treaties or legislation which exist.
- If the flow is interrupted, change the subject for a time. Talking about family or friends is often a good way to ground the client in reality. After this, you can return to the details of the violations.
- Only look at the wounds at the end.
- Make an inventory of places, names and witnesses as above.
In both of the above cases, by the end of the interview the lawyer should have information:
- On the time and place of the events
- On any persons present (whether or not they participated).
- On the exact role of each person or party involved, and especially, the nature and number of blows.
- On all pressures or threats constituting mental or psychological torture.
- On all marks personally seen.
- On possible witnesses (bystanders, co-prisoners).
Following the interview, a doctor should be called for expertise, and, if necessary, care, witnesses found from whom to take statements or cite, and then the defense should be prepared.
The defense can take one of three forms:
- Nullity. Putting forth a defense of nullity of procedure can call for the invalidation of either the entire procedure, or just parts, such as the interroation or custody. Refer to Section V
- Absolute Defense. A defense that rejects statements or concessions given under conditions of violence and mistreatment.
- Disciplinary Action Against Perpetrators. Criminal or civil disciplinary action can be taken against the perpetuators under the auspices of the prosecution by submitting a complaint.
It is possible to pursue the three actions simultaneously, and any of these may be added to the defences above.
In all cases, a CONCRETE file is needed before moving forward. This is the one case where the burden of proof lies upon the defense and this proof is, usually, quite complex.
With regard to the defendant
At the Tribunal, it is important to demonstrate the separateness between you, as a person, and your client. Similarly, in criminal defense cases, there is almost systematic and instinctive confusion between the defendant and the lawyer on the part of magistrates, the bench, and the prosecution.
Maintaining detachment and demonstrating separateness means adopting the following declarations:
- Even if my client lies, I will not lie.
- If he or she has committed a criminal or delinquent act, I take on the noble task of defense: the act is not mine.
- If the client is determined to present or go forward with a counter-productive defense strategy, I will counsel him or her against it, and in the event that she or he decides to continue with such a defense, only follow it with reservation.
- I will not hesitate to contradict the accused when it could be to his or her benefit.
But also, and above all:
- I am a bridge between the client and the court.
- I will fight against the client's own prejudices.
- I believe fundamentally in what I tell the court.
- The system is stronger than the defendant; I am there to re-establish an equilibrium.
- Exercising criminal defense requires leaving nothing to chance, from a technical point of view.
- Being a practitioner of the law justifies defending any act, and any cause.
Finally, it must ALWAYS be remembered that often:
The first adversary is the client
Bearing this in mind, questions to be asked during trial can be formulated . While there is no automatic recipe for success, experience teaches certain basic rules which can help to avoid grievous mistake:
- Never ask a question to which you do not already know the answer.
- Do not ask too many questions which you have not fully gone through or explored in preliminary meetings.
- Explain to the defendant in advance that there you will not ask tricky questions, and that he or she should always answer in the way which seems the most obvious to him or her.
- Ask short questions and do not hesitate to reformulate or to explain if the client begins to lose his or her train of thought.
- Remind the defendant regularly that the answer is meant for the Tribunal.
- It is always better to allow a doubt to linger than to end up with a catastrophic answer which cannot be taken back because there is always a possibility to argue and plead.
Additionally, it is fundamental to remind the defendant that he or she should always reply to the prosecution or the plaintiff's lawyer and to the President of the Court as briefly and concisely as possible, which will help to avoid making mistakes.
Remember that nothing useful is gained by attacking others, including the opponent. Also, be mindful that there should be under no circumstances a sharing of the responsibility by fraternity.
Questions asked to co-defenants should be direct and frank. This does not necessarily mean doing the prosecution's work because the primary aim is not to implicate him, but to clear or lessen the your own client's responsibility.
Remember that it can be easy to cross the line between question and accusation.
Furthermore, co-defendant examination should never descend into a confrontation that may call for the colleague defending him. This is a waste of energy and the result can be disastrous. There is always a possibility to argue or plead a doubt whereas a certainty resulting from a disastrous answer cannot be undone.
Therefore, it is pointless to ask more than the Tribunal may need.
Regarding victims and plaintiffs
A second golden rule is that the last person to attack is the victim. Always address him or her courteously, gently, and calmly. It is important to show that the victim's point of view is understood, though not necessarily shared.
When facing a victim who is lying, he or she must be allowed to either admit to the lie or contradict previous statements, while the defense lawyer remains understanding and calm.
The lawyer should also treat the victim with caution. A lawyer should not be aggressive with the victim EXCEPT after it has become clear that he or she is lying, inventing, deforming, manipulating.
In this situation, the defender must be firm, even slightly disagreeable, in the questions asked. However, do not forget that anything said can be used by others in court either to defend the victim or against your client.
To summarize, it is always helpful to be conciliatory with victims, in order to avoid having everyone turned against you, but this does not prevent you from contradicting their statements.
Quick concrete points :
- It is all too common to observe defense lawyers being aggressive with plaintiffs, accentuating their victimhood and complicating the task of defending.
- On the opposite end of the spectrum, many defenders become quiet when dealing with victims and thus neglect to fulfill their duty to cross-examine.
It is a difficult balance to find; success usually comes somewhere in the middle, and the direction taken depends upon the attitude of the victim.
It is not shameful to argue against a brazen liar, given the stakes involved for the client, but it is important to be absolutely sure that a lie was told before accusation or arguing.