India Criminal Defense Manual - Arguments
Argument on the charges
The argument on the charges is an opportunity for the defense to marshal the significant facts in a logical fashion that makes sense and leads to one conclusion, a defense verdict. The argument on the charges may be the most effective piece of advocacy during a trial and, as such, should be delivered in a calm, logical manner that brings the Magistrate to your side.
This may be the Magistrate's first contact with the legal aid lawyer. Given the fact that first impressions are hard to change, counsel should be very conscious of dress, grooming and body language. The lawyer must attempt to come across as honest, sincere, considerate and credible.
One important theme in any closing argument is the prosecution's heavy burden of proof. Some ways of emphasizing that burden are as follows:
- The test is not which side you believe - The prosecution may suggest to you that the test in this case is simply which side you believe. They invariably do this - and it is wrong. That's not the test. The test is this: "Do you have a reasonable doubt whether the accused is guilty of the crime alleged?" Is there at least one reasonable doubt that (name the accused) might be wrongly accused?
- Reasonable doubt as an abiding conviction of the truth of the allegation - I suggest to you that reasonable doubt about a person's guilt is when, after considering and comparing and weighing all the evidence, you are not left with an abiding conviction of the truth of the charge that has been leveled at the accused.
- Reasonable doubt as meaning at least "firmly convinced" of guilt - Whatever you may think about what reasonable doubt means, I submit to you that it means, at least, that you, as a responsible Magistrate, cannot convict a person of a crime until you are firmly convinced, personally, of the accused's guilt.
- Evidence must leave no room for reasonable doubt - By your oath, you cannot convict the accused when after careful consideration of the evidence there still remains one reasonable doubt as to whether the accused is guilty of this charge. It is only when the evidence leaves no room whatsoever for reasonable doubt that you are allowed to find that the accused is blameworthy. Many criminal cases are built on the testimony of either cooperating jointly accused persons or persons who themselves have prior criminal records. This is also an important theme to emphasize.
Some samples of arguments discrediting informants and cooperating co-conspirators are as follows:
- Be skeptical from the beginning of the case - I told you in my statement, at the very beginning of this case, that you are going to hear from some biased people, and, without exception, the record reflects either that every one of them had made some kind of deal or that every one of them had a reason to say what he said. I asked you to please be skeptical and to listen not only to what they said, but to the way they said it and how they said it and why they said it. I asked you to keep your mind open to that because you don't have to accept at face value what they said.
- Credibility of prosecution witnesses - The test of believability doesn't rest on anyone but the prosecution. They must prove that what (name the informant or cooperating co-conspirator) told you was true beyond any reasonable doubt. They can't shift the burden of proving the honesty of their witness by saying, "Well, what kind of witness would you expect us to have?"
- Prosecution vouching for credibility and truthfulness of accomplice or co-conspirator witness - How can you believe someone like (name the accomplice/co-conspirator)? This is such a topsy-turvy sort of case. I really marvel at it because here we have the government, through its prosecutor, vouching for the credibility and truthfulness of an admitted criminal.
Background on Sentencing
Sentencing takes place after a accused is convicted of a crime. The conviction can be the result of a trial verdict or a guilty plea. For minor offenses, sentencing typically occurs immediately after the conviction. For more serious and/or complex cases, the sentencing judge will set a date for sentencing.
Generally, the court will impose a sentence that is within a range set by statute for the crime committed. The schedule of sentences or the sentencing range is codified in the Criminal Procedure Code. In a sentencing for a crime, the sentencing judge may consider information from a number of sources in determining an appropriate sentence. Those sources, among others, are the accused's criminal history, the nature of the crime, the accused's personal circumstances, and the accused's expression of remorse.
It is important to note that the rules of evidence typically do not apply at sentencing. Many of the facts that the judge considers at sentencing are not elements of the offense and, as such, they will not have been established by the finding of the accused's guilt. Courts have also held that hearsay testimony, which otherwise would have been inadmissible at trial, may be considered at sentencing; however, the information must have sufficient indicia of reliability to support its probable accuracy.
The judge will also consider input from the prosecution and defense in determining the sentence. The court is also required to permit the legal aid lawyer the opportunity to speak on the accused's behalf and the court may address the accused personally to determine whether the individual desires to make a statement or present any evidence in mitigation.
To counter any "aggravating factors" raised by the prosecution, it is advisable for the legal aid lawyer to raise the following points during the argument before the court for passing a lenient sentence.
- A detailed personal history of the accused in an effort to "humanize" the accused which may include, among other things, positive personal successes, volunteer work, and/or community service
- Possible alternatives to incarceration such as community-based probation, house arrest and/or placement in a half-way house
- Specific community service that may be related to the offense such as speaking to students about the negative impact of drug abuse or criminal activity
- Drug and/or alcohol treatment including placement in a specific facility coupled with outpatient therapy
- Psychiatric and/or psychological counseling with placement in a specific hospital or work with a specific psychiatrist/psychologist
- Victim restitution with a statement of remorse for the offense committed
- Specific employment options/coupled with a detailed work history
While the above examples are not exhaustive of what a legal aid lawyer may or should address during the argument before the court, it should be emphasized that legal aid lawyers should strive to be as creative as possible in advocating for a lesser sentence. The goal of the defense lawyer should be to provide the court with any and all positive information about the accused that would assist the court in its sentencing determination.