Difference between revisions of "Rwanda Criminal Defense Manual - Strategies for the Hearing"

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== With regard to the defendant ==
 
== With regard to the defendant ==
 
   
 
   
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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.
 
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.
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== Rwanda Criminal Defense Manual==
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'''Table of Contents'''
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* [[Funadmental Principles (Rwanda)| Fundamental Principles]]
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* [[The Rule of Law and Due Process (Rwanda)| The Rule of Law and Due Process]]
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* [[Client Interview (Rwanda) | Client Interviews]]
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* [[Strategies for Preparing the Hearing (Rwanda)|Strategies for Preparing the Hearing]]
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* [[Strategies for the Hearing (Rwanda) | Strategies for the Hearing]]
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* [[Defense Stategies (Rwanda) | Defense Strategies]]
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* [[Procedural Nullities (Rwanda) | Procedural Nullities]]
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* [[File:Sample Forms]]

Revision as of 09:54, 11 May 2010

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.


Regarding co-defendants

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.

Rwanda Criminal Defense Manual

Table of Contents