Guide to Effective Advocacy in the Cambodian Criminal Justice System
The purpose of this guide is to provide advice to criminal defense lawyers in Cambodia on how to most effectively represent their clients. Criminal defense lawyers do this through techniques of advocacy and persuasion, which we discuss below.
Before turning to this discussion, our assumption is that the criminal defense lawyer has studied - indeed mastered - the Cambodian Penal Code and the Code of Criminal Procedure. These codes, particularly the procedure code, must be read over and over again in order to learn all the rules that will protect your client and guarantee him or her a fair trial.
There are, in our view, three qualities which every effective defense lawyer must have:
- A sincere belief in your client's case. If your client is innocent or substantially innocent, the sincerity of your belief in the client's case will transmit itself to whomever you are trying to convince at the time, whether it be the police, the prosecutor, the investigating judge or the trial judge. If there is little or any doubt that your client has committed the offense, and there is proof of his guilt beyond a reasonable doubt, you must still argue your client's cause as a human being to convince the court to give lenient treatment. Treat the client as you would your father, son or brother. Do not lose your ability to be objective about the case but argue with passion that there were extenuating or mitigating circumstances surrounding the commission of the crime.
- The criminal defense lawyer must be resourceful. By that we mean the ability to make the most of the facts and circumstances presented to you and often there is very little. You must be creative enough to exploit to the fullest every bit of evidence in favor of your client and to defuse as far as possible the counter-evidence presented by the prosecution.
- You must work hard. You will be successful in your case only if you have spent sufficient time to master both the facts and the law. You should know more about the case than anyone else in the courtroom.
Before any further discussion of principles of advocacy and persuasion, let us look at a typical criminal case in a Cambodian courtroom. The overwhelming majority of cases - both felonies and misdemeanors - are over in a day or less. Let us assume a felony case (robbery, rape, theft, battery) is to be heard by three judges. The judges will have the complete dossier of the case before them, including any reports, witness statements and summaries of the evidence assembled by the police, the prosecutor and the investigating judge. As a criminal defense lawyer, you have full access to this dossier and you must make the most of it. You must spend all the time necessary to study this material and make copies of any important documents. This is the raw material of your case and you must look for weaknesses in the prosecution's case to create a reasonable doubt in the minds of the judges. You must try to construct a theme - a theory of the case based on the facts - that will make sense to the judges.
And you must be able to present your case quickly and with precision. Indeed, a very large percentage of the cases are over in a morning or less so you have to get to the heart of the case to convince the judges of the justice of your cause. Assuming that you have done a thorough and complete investigation of the facts and circumstances of the case, the tools of advocacy and persuasion that you will use at the trial will be the opening statement, direct and cross examination and the closing argument. We will discuss each of these matters in turn.
- International Bridges to Justice is most grateful to Delaine Swenson and Herbert D. Bowman for their important and extensive contributions to the contents of this Manual. Professor Swenson is a member of the Faculty of Law at John Paul II Catholic University of Lublin, Poland. Mr. Bowman has provided his expertise in International Legal Reform to the criminal justice systems of various countries.