India Criminal Defense Manual - Arguments

Argument on the charges

Background

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.

Basics

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.

CLOSING ARGUMENT

Sample Themes:

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.