Guide to Effective Advocacy in the Cambodian Criminal Justice System - Opening Statement

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The Opening Statement

There is no provision in the Cambodian Code of Criminal Procedure that specifically allows either the Prosecution or the Defense to make an opening statement. There may be a good reason for this. After all, the three judges in a felony trial already have before them the full investigative file so there seems little necessity for the parties to make an opening statement unlike, for example, an American jury trial where the jury learns about the case only after the prosecution and the defense have made their opening statements.


However, despite the lack of a rule allowing opening statement, experienced defense lawyers in Cambodia (as well as prosecutors) have been allowed by the judiciary on occasion to make an opening statement in selected cases. In such cases, the defense lawyer, after a careful examination of the investigative file and knowing what the evidence on both sides is likely to be, can craft an opening statement that will expose both the legal and factual defects in the prosecution’s case and set forth the essential facts and theory of the defense case.

Developing a Theory of the Case

Ideally, an opening statement should present the defendant's theory of the case. Whether or not the defense lawyer is allowed to make an opening statement, a theory of the case is essential as it will guide both the direct and cross examinations of the witnesses and form the cornerstone of the closing argument. A theory of the case is a party’s version of “what really happened.” It is a concept which explains the legalaspects of the case and the factual background of the case and ties them together. It is at the center of a party’s case. A good theory of the case answers two important questions: (1) What Happened? and (2) Why Did it Happen?


A theory of the case should meet the following requirements:

  • Should be simple and easy to understand
  • Should be logical
  • Should meet the legal requirements of a party’s claim
  • Should be consistent with decision maker’s view of how real life works


Defense theories of the case are usually wrapped around a legal defense but the legal defense is normally not sufficient to complete the theory since it does not usually go far enough to explain the facts surrounding the event. Examples of frequently used legal defenses in criminal cases are as follows:


Legal defense 1: The accused did not engage in the action making up the offense. Legal defense 2: The accused was justified in taking the action since he was acting in self-defense.

Legal defense 3: The accused engaged in the action but did not possess criminal intent.


Examples of theories of the case constructed upon these defenses are as follows:


Theory 1: This is a case of mistaken identity and poor police investigation. My client was not the person who committed the crime. The police were so eager to arrest someone they blamed my client without doing sufficient investigation to find the real perpetrator.

Theory 2: This is a case of a frightened woman protecting herself against a violent and abusive drunk. My client’s husband physically abused her for years and when he attacked her this time, she was forced to defend herself with the only weapon in reach, a kitchen knife. Theory 3: This is not a crime but a tragic accident. My client and his friend were foolishly playing with the handgun when it accidentally went off.

Execution

  1. A lawyer should build a general theory of the case centered on the client’s best interests and based upon the actual situation, which will help him or her evaluate what choices to make throughout the defense process.
  2. Counsel should allow the theory of the case to guide his focus during the investigation and trial preparation process. Counsel should dig into and expand upon the facts and evidence supporting his theory of the case. Nevertheless, the counsel should not become a “prisoner” to his theory of the case.

Work form for developing a theory of the case

The following points may help a defense lawyer to build a complete and coherent theory of the case:

  1. What is your theory of the case? (e.g. innocence, alibi witness, misidentification)
  2. Why do you believe this is the best theory of the case?
  3. What is the relevant law? What are the elements of the offense? How will your theory of the case prove the client’s innocence?
  4. What are the unalterable facts that you need to confront and explain in the theory of the case?
  5. What are the facts in favor of the client?
  6. What is the key emotional theme in the case?
  7. What emotional themes is the prosecutor most likely to use in his argument? How will you use your theory of the case and emotional theme to refute these emotional themes?
  8. Make a list of the prosecution witnesses with specific questions attached to their names.
  9. Make a list of the defense witnesses, and under each of their names, write out how you plan to question them.
  10. If the accused will testify, list your main desired objective when directly questioning the accused. How will the accused’s testimony strengthen your theory of the case?
  11. What further investigation do you need to do to complete your theory of the case?
  12. Do you need to solve any problems with the evidence? Are these problems likely to strengthen or weaken your theory of the case? How will you explain the evidence that is inconsistent with your theory of the case?
  13. Make a brief, effective statement for your theory of the case.


Storytelling: Test your Theory of the Case and Themes at Court

To defend your client effectively, the lawyer must understand how to tell a story to the court. The more convincing and touching the story is, the more persuasive the argument becomes to the judge who ultimately decides the facts of the case. Every well-knit story needs a plot, and for a defense argument, a plot provides the best tool for explaining the facts of your theory of the case.


Why must the defense lawyer use storytelling methods in the court?


Storytelling allows the defense lawyer to set the stage, introduce the characters, create an atmosphere, and organize ideas into a carefully crafted narrative format, thereby impacting the way each judge perceives a given case. Without such a framework, judges will understand the evidence and testimony in accordance with the prosecutor’s argument. Once the defense lawyer successfully executes a framework, he or she can use the client’s experiences to influence the judges’ imagination, leading most judges to understand the evidence in the context of the client’s past experiences.

Conclusion

To develop a theory of the case, the defense lawyer should objectively evaluate the prosecution‘s case and then, in accordance with applicable laws, structure a moving story based on the facts of the crime and emotions that will serve as a rebuttal. The theory of the case will influence the investigation, which witnesses will testify at trial, and what demonstrations will be held in court. Through telling a reasonable and convincing story, the lawyer can persuade the judge to find the client innocent, mitigate his sentence, or exempt him from criminal responsibility.


See Guide to Effective Advocacy in the Cambodian Criminal Justice System, Cambodia